R v Masatora

[2017] VSC 277

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0050

THE QUEEN
v
LINDSAY MASATORA	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2017
DATE OF SENTENCE:	24 May 2017
CASE MAY BE CITED AS:	R v Masatora
MEDIUM NEUTRAL CITATION:	[2017] VSC 277

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CRIMINAL LAW – Sentence – Manslaughter – Early plea of guilty – Excellent prospects of rehabilitation – Remorse – Violence within relationship – General deterrence – Sentenced to 7 years’ imprisonment with minimum of 4 years and 9 months – 218 days pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	M Rochford QC	Office of Public Prosecutions
For the Accused	J D Williams	Victoria Legal Aid

HIS HONOUR:

1. Mr Masatora, you have pleaded guilty to one count of manslaughter on the basis that your unlawful and dangerous acts killed Amanda Dawson.

1. The facts that surround your offending can be stated relatively shortly.  Ms Dawson was married with four grown up children.  It seems that in the last few years of her life her marriage had suffered, perhaps contributed to by an alcohol problem.  In October 2014, when Ms Dawson was nearly 56, she began a six month nursing contract at Derby Hospital in north-west Western Australia.  In March 2015, when you were 55, you met Ms Dawson at a hotel in Broome.  As I understand it, Ms Dawson’s husband, David, was intermittently in Derby with Ms Dawson.

1. You developed a friendship with Ms Dawson and, in time, it became a romantic friendship.  Ms Dawson returned to the family home in Glengarry, near Traralgon, in April 2015.  Unfortunately your relationship survived this separation, and in May 2015 you moved from Broome to transient hostel accommodation in Melbourne.  You remained living in Melbourne until 3 May 2016.  Despite this, you were seen frequently together with Ms Dawson in the Traralgon area.  You both enrolled in a creative writing course at the Traralgon Neighbourhood Learning Centre.  In May 2016, you both enrolled in another course at Morwell TAFE.  At about this time you commenced renting a flat in Morwell.  Ms Dawson assisted you to secure this accommodation.  In about June or July 2016, David Dawson encountered you at his Glengarry home, drove you to the Traralgon Railway Station and told you not to return.  A similar incident occurred about a month later, where you were detected hiding in a spare bedroom of the family home.

1. I accept that the relationship between you and Ms Dawson persisted throughout these months.  Text messages between you and Ms Dawson provide some insight into your commitment to Ms Dawson and her ambivalence about continuing a relationship with you.  I do not propose to recite all of the SMS exchanges, however it is apparent that Ms Dawson, at times, is firm that she wants the relationship to end.  At other times she expresses her love for you.  At one stage Ms Dawson messaged you: ‘You don’t know what it is like leading two lives’.  This ambivalence and obvious angst persisted right up until the morning of your fatal assault upon her.

1. At around 4.20pm on 10 October 2016, Ms Dawson drove to a car park in Traralgon.  You were seen shortly after that walking around the car park.  The front passenger door of the vehicle was open and Ms Dawson appeared to be beckoning you to return to the car.  Almost an hour later you were seen to be behaving angrily and shouting while standing next to the vehicle.  Shortly after this, you struck Ms Dawson twice to the head.  The blows were of sufficient force to cause a fracture of the left cheek bone, bruising over the left jaw, an acute subdural haematoma on the right side with associated intracranial pressure and compression of the left ventricles and basal cisterus.  After some hesitation, as Ms Dawson lost consciousness, you telephoned 000.  She died on 13 October 2016.

1. I sentence you on the following factual basis:

·    At the time you carried out the acts that caused the death you intended Ms Dawson some harm falling short of really serious injury.

·    Your actions were unpremeditated and the consequence of an outburst of anger, likely the product of Ms Dawson either proposing to discontinue the relationship or failing to resolve it one way or the other.

·    You held deep and genuine affection for Ms Dawson.

1. I turn now to matters personal to you.  You come from a large, stable and happy Broome family.  Your father was a Japanese pearler who returned to Broome after the war.  Your mother was an aboriginal woman who grew up in the Lombadina Mission at Cape Leveque, north of Broome.  Your mother was one of 16.  You have, I accept, a close connection to your country (Nyilil) and your indigenous community.  Both your parents have died.  You are one of six children.  All your generation are still alive and two of your sisters attended court for the plea hearing.  Your sister Claire and brother Stephen are now elders in your Broome community.

1. You met your former wife Anne in Derby in 1979.  You married in 1980 and went to live in her home state, Tasmania.  You have three children from that relationship, now aged 36, 34 and 24.  The marriage ended, I am told, amicably in 1994.  I am told you remain close to your children and I have read a moving reference from your son Samuel.

1. You are now 57 years old.  You have a solid work history both in Broome and Tasmania.  You completed a Bachelor of Arts degree at the University of Hobart in 1999.  I accept that you have never been a drug user nor a person who regularly abused alcohol.  I regard your prior criminal history as of little significance.  You have two assault-related prior convictions, both of considerable antiquity and dealt with summarily.  I do not regard them as demonstrating any real propensity to act violently.

1. I have read the character references that have been tendered on your behalf.  Insofar as they are relevant, they speak of a generous, kind man of real ability who, at times, has been a leader of his indigenous community.  You are lucky that you continue to have the love and support of your entire family.  Upon your release you can expect support that few in your position have available.  I consider your prospects for rehabilitation to be excellent.  You have no mental illnesses or personality disorders that could impact upon these prospects.

1. I am satisfied that you are remorseful for the death of the person you purported to love and for the grief that you have caused her family.  You telephoned 000, although as I have said there was some hesitation to this.  I am somewhat troubled by your assertions to witnesses that Ms Dawson’s state was the product of past head trauma – I remarked to your counsel that I considered those assertions to be self-serving and evasive.  I am also somewhat troubled by the faltering expressions of guilt in your police interview, a video of which I have viewed.  Whilst I consider that true remorse was a little slow in coming, I consider this to be the likely product of your reluctance to accept the enormity of what you had done.  I am prepared to infer remorse now from the following combination of factors:

·    The 000 call.

·    Your immediate, if partial, acceptance of responsibility to the CFA paramedic.

·    Your apparent distress when interviewed by police.

·    Your expressions of remorse to your psychiatrist, Dr Turnbull, and to the Dawson family.

·    Your early plea of guilty.

1. You are also entitled to some sentencing benefit for the utilitarian value of your plea of guilty.  The community has been spared the expense and inconvenience of a criminal trial and the Dawson family have been spared the associated emotional trauma of this process.

1. I take into account that you have no family in Victoria and you will serve your sentence isolated from your Tasmanian and West Australian loved ones.  I also take into account your age.  There is no good age to be commencing a significant term of imprisonment, but 57 is an advanced age.  I understand you suffer from diabetes and high blood pressure.  Whilst I am confident you will receive appropriate medical management for these conditions, your age, health and perhaps your indigenous status in my view make you more vulnerable in the prison environment than younger prisoners in good health.  I have moderated the sentence I am about to impose to reflect these factors.

1. I have set out many factors that can be advanced on your behalf.  The fact remains that your outburst of anger and its physical sequelae will continue to have ramifications on the extended Dawson family for decades to come.  I have listened to and read their Victim Impact Statements.  I am struck by not just their collective grief but their dignity, restraint and decency.  Amanda Dawson had every right to conduct a relationship with you and every right to call it off, or to defer resolving it.  You had every right to disagree with her – to put your side of things.  But you had no right to beat her.

1. This court has an obligation to impose sentences that spell out in the clearest possible terms that violence within a relationship will not be tolerated.  It is most often carried out by stronger males on their weaker female partners.  It is cowardly and contemptible.  General deterrence, denunciation and punishment must assume importance in the sentencing balance.  I accept your counsel’s characterisation that this offending sits within the middle range of manslaughter offending, but all manslaughter offending is serious offending.  Your unlawful assault upon Ms Dawson has had catastrophic, direct and indirect consequences and I cannot overlook those.

1. Due to the wide variety of misconduct causing death that is capable of constituting the crime of manslaughter, I have derived limited assistance from current sentencing practices.

1. Stand up please Mr Masatora.

1. Balancing these factors as best I can, I sentence you to seven years’ imprisonment for the crime of manslaughter.  You must serve four years and nine months’ imprisonment before you are eligible for parole.

1. I declare that 218 days, not including today, have been served by way of pre-sentence detention.

1. I further declare, pursuant to s 6AAA of the Sentencing Act 1990, that but for your plea of guilty I would have sentenced you to eight years and six months’ imprisonment with a minimum term before parole eligibility of six years.