R v Oakley
[2012] VSC 392
•5 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.0017 of 2012
| THE QUEEN |
| v |
| SHAUN MICHAEL OAKLEY |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 August 2012 | |
DATE OF SENTENCE: | 5 September 2012 | |
CASE MAY BE CITED AS: | R v Oakley | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 392 | |
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Plea of guilty – Reckless conduct endangering life. Intellectual disability, super imposed by acquired brain injury. “Street Kids”, 1 Push – Victim falls and drowns in Yarra River.
Sentence: 2 years Imprisonment - Minimum 1 Year.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Kissane | Office of Public Prosecutions |
| For the Accused | Mr. C. Pearson | Greg Thomas Barrister & Solicitor. |
HER HONOUR:
Shaun Michael Oakley, on 27 August 2012 you pleaded guilty to one count of reckless conduct endangering life which occurred on 30 August 2010. You were then 25 years of age and the deceased man, James Smith, was only 16. The offence to which you have pleaded guilty carries a maximum penalty of 10 years imprisonment.
The events surrounding the offending are that you together with a number of other people, who would be commonly referred to as ‘street kids’; including the deceased James Smith, together with Vincent Grosso, Dustin Gilchrist, Lauren Felice, Ashley Prydderch, William Sulot, and your girlfriend Johanna Lafferte, all met up around 6pm at the Flinders Street railway station. The group broke up, but met again outside St Paul’s Cathedral, at a later point. At around 7.30pm, you purchased two casks of wine from Coles Liquor Express in Elizabeth Street, Melbourne and as arranged met up again with the others in Centre Place, Melbourne. Whilst you were in that location, two employees of the Child Protection arm of the Department of Human Services attended in that area and identified various members of the group including the deceased James Smith. They also recognised you and noted that alcohol was being consumed by the group.
They left that area at 7.51pm and made arrangements about apprehending some of the young females in the group. The group headed off towards the Yarra and ended up on a pontoon, located underneath the footbridge that went over the Yarra. The police attended and both Ashley Prydderch and Lauren Felice were taken into custody, on safe custody warrants.
You, together with the other persons in the group, including the deceased, followed the police up from the pontoon onto the footbridge and were abusive towards the police removing the two young girls. At this point, William Sulot and a young woman by the name of Brooke Storach joined this group. She was particularly affectionate towards James Smith and started hugging and kissing him and you all went down the stairs once again and onto the pontoon.
When you were down on the pontoon area, the deceased with Brooke Storach went to a darkened and more discrete area of the pontoon, where they indulged in sexual relations of various types. The majority of the others, including you, remained on the pontoon, but in an area some distance away, near a seat which can be seen clearly in the photos contained in the photo booklet.
It would appear that, over a period of time, different members of the group went to where the deceased and Brooke Storach were, and observed what they were doing and would then return and report to the others. Whilst you were all still around the area of the seat, Brooke Storach was heard to call out and yell at the deceased to stop. All of you went over to where James Smith and Brooke Storach were and removed James Smith from Brooke Storach, without any real resistance on his part. Storach was clearly distressed and there was some comforting of her, by the females in the group. You said to James Smith, when he was being told to get off Brooke Storach, that he should just ‘get the fuck out of here’. You were then heard by Justin Gilchrist to say ‘I’m gonna push this cunt’.
The area in which you were all located was an area outside a wire gate and around the corner from a large pillar. It was not a large area and there were, on the evidence before me, at least six of you in that small concrete area. You have then pushed, with one hand, the deceased James Smith. That push was to his chest and he was observed to wobble, as if he had lost his balance, and you were observed to then put your hand out towards the deceased again – with one observer describing it as ‘like you were going to push the deceased again’, but you didn’t physically touch him again, at that point, but he fell into the river.
The deceased James Smith, being from Liberia via Sierra Leone, did not know how to swim. There is no evidence that this was something of which you were aware and, accordingly, I act upon the basis that you did not know of James Smith’s inability to swim. It is your push that caused James Smith to fall into the Yarra that constitutes the reckless conduct endangering life. The pontoon on which you were located was not limited in access by members of the public, and had no fence of any description. I am informed that, since this incident, there has been a major alteration of the pontoon. There is now a restaurant located there, but also, a waist high fence that now surrounds the edge of the pontoon. On this night there was no fence, and, accordingly, nothing to prevent anyone landing in the river in these circumstances.
The area in which James Smith went into the Yarra was above a set of three steps or rungs that led from the water back to the pontoon. It would appear that, most unfortunately, Mr Smith was unable to grab hold of these rungs as the current took him away from the rungs, and there were no handholds available to enable him to be supported in the water. Other persons attempted to try to reach him, by leaning down, but the area between the pontoon and the water was too distant to enable that to occur. A very brave passerby – a young man by the name of Chad Ryan, who had seen the deceased man in the water and the inability of others to assist him – went and dived into the Yarra, where he had last seen James Smith. He made heroic efforts, but was unable to locate him. A triple 000 call was made to police and both police, fire brigade and ambulance attended. You, not surprisingly, in light of your disabilities became frightened of what you had done and ran away.
As I said, this pontoon which is made of concrete was open to the public. This all occurred after 9pm at night. There are stairs that lead from the pontoon up to the public footbridge, which goes from one side of the Yarra to the other. The water of the Yarra is approximately 1.5 metres below the edge of the pontoon. The deceased was found lying on the river bed in approximately two metres of water, in and around the same location, where he had last been seen on the surface.
Whilst it seems extraordinary that someone can die in such a short space of time, in a river with so many people around, it must be remembered it is at night, it is August and cold, the water temperature at the time being about 9 degrees Celsius, the depth of the area in which the deceased died was about two metres and there was a tide ebbing of about three knots at the time of the search and rescue, which was of course some hours later. The deceased had a blood alcohol content of .06 at the time of his death.
When you were interviewed by the police on 31 August, you made some admissions about being in the company of the deceased and others on the pontoon, and that you had all been drinking alcohol, but you made false denials in respect of what occurred thereafter. Although you were arrested and interviewed on 31 August 2010, you were not charged in this matter, until you were charged by summons on 20 June 2011, a delay of almost 10 months.
Counsel for the Crown Mr Kissane explained that those involved in the investigation, quite correctly, sought advice from the Office of Public Prosecution as to what offences, if any, should be pursued in respect of the death of James Smith. The obtaining of that advice took sometime.
You are 27 years of age, having been born on 7 May 1985, and at the time you were residing in Tullamarine, in some sort of boarding house, and you were on a disability pension at the time. You are a person who comes to Melbourne on a regular basis and associates with street kids. You have equally a most unfortunate history. You have a number of prior convictions, as well as some subsequent offending, that is of some relevance. You had some Children’s Court offending which commenced in 1999 and continued through until December 2002, all of which was quite minor.
Your first appearance in the Magistrates’ Court was in December of 2003 which continued through until September 2011. The majority of your early offending resulted in orders directing you to comply and deal with your disability services worker, involved justice plans and matters and services designed to assist you in respect of your rehabilitation. There was an offence dealt with at the Melbourne County Court in July of 2005 which on first blush looks like a particularly serious offence, being sexual penetration of a child under 16 years of age, for which you were placed on a community based order for two years in compliance with the conditions of a justice plan. That related to a relationship that you were in with a girl of 15 and you were aged 18 at the time. In July of 2006 you were convicted in the Melbourne County Court of recklessly causing serious injury and received a sentence of 18 months imprisonment with a non-parole period of five months of which you had already served one month via pre-sentence detention. You had breached your community based order for the sexual penetration and charged as a result of this particular offence and you were given four months imprisonment to be served concurrently with the sentence imposed by the court on that day. Your counsel informed me that despite having only four months to go at the time of being convicted you were not released on your minimum term, you were not in fact released until you had served nine months of the 18 months imposed which he was informed by you related to your inability to have a residential address at that stage. You were further dealt with in the Melbourne Magistrates’ Court in August of 2006 for charges of assault with a weapon, burglary, theft, robbery and others for which you received an effective term of imprisonment of three months in totality. You had again breached your community based order and in November you were placed on a further community based order for nine months with special conditions to obey all the directions of Mr McGuire with respect to rehabilitation.
By September of 2007, you were in the County Court at Melbourne again, on charges of affray and intentionally causing injury. You received nine months on each count, to be served concurrently and three months of the sentence was suspended for two years. There were further offences relating to failure to appear on bail and failing to comply with your reporting conditions, pursuant to the Sex Offenders Act, for which you received another three months in March of 2010. That sentence was partially suspended in respect of one month. You breached that suspended sentence, and that was restored subsequently to this offending in December of 2010.
There are two offences subsequent to this offending which are of relevance. First is in December of 2010, a count of recklessly cause serious injury, for which you received a term of imprisonment of nine months and a failure to comply with reporting conditions, for which you received three months cumulative, making an effective period of one year. Further, in December of 2011, one count of robbery and one count of make threat to kill – you received a total of 16 months imprisonment with a non-parole period of 10 months. In relation to the sentences in 2011 and 2010, there is a clear recognition by the courts that you have real problems, as each of those notes, that you have custody management issues and it says
‘the accused may be at risk due to the following: intellectual disability; asthmatic requiring Ventolin; acquired brain injury; requires immediate assessment for appropriate accommodation and medical treatment.’
I note that you are currently undergoing a sentence and that you are in protection. I was not informed about the basis upon which you are in protection in Port Phillip Prison but would assume it has something to do with your intellectual capacity.
I have received a victim impact statement from the father of James Smith who is called Samual Smith. He wrote on behalf of his family. James had four brothers and two sisters. It is a restrained document, but one which shows he was a much loved son and brother and someone who will be missed by all that he left behind. The court understands that every person is precious to those who love them unconditionally. Although there had been some problems between James and his family that does not reduce the grief that they will suffer or the loss that they will feel. This was a tragic, tragic event, so pointless, so needless, the loss of James was such an unnecessary thing to have occurred. What James’ family understand or will have explained to them, I hope, is that this sentence which I impose is not a reflection on the value of their son’s life – as I said, every human being is irreplaceable, every human being is priceless. There seems to be some view that what a court imposes by way of sentence is a reflection of the value of the life of the person who died – it is not. It is a reflection of the totality of circumstances that a court have to take into account and may often, as in this case, bear no reflection upon the value of the deceased young man, James Smith. This sentence is a combination of the legislative regime that exists, together with the facts personal to the prisoner and the offence of which he has pleaded guilty.
As indicated earlier, you have a most unfortunate background. You were one of three children and your father and your mother had separated prior to your birth. Your father was a violent alcoholic and your mother fled that violence. She raised you as a single mother in Carlton. She suffered, quite clearly, from poor health, and faced many life threatening illnesses prior to her death. You have an older sister and an older brother and both of those siblings have had serious health issues.
As I indicated, you were born in May of 1985. By June of 1999 there had been a formal assessment of your intellectual disabilities and you were declared eligible to receive services from the Disability Services under the Intellectually Disabled Persons Services Act of 1986. You were found to be functioning within the mild range of intellectual disability. The earliest report available to the court was a client overview report dated 6 May 2005, prepared in respect of the charges being dealt with at the County Court, for sexual penetration of a minor under the age of 16. In that report, your relation to your family was described thus:
During much of Mr Oakley’s life his mother suffered from major chronic health problems which were intermittently life-threatening. She required regular medical attention and had restricted mobility.
On 3 October 2004, your mother died from septicaemia. She had been trying very hard to keep the family together. Your older brother had maintained a very minimal contact with your father and when he advised him of the death, your father returned and moved into the family home. That arrangement lasted some five weeks, due to your father’s behaviour, and you have had no contact with him since the time he left in 2004. You had previously ceased contact with your sister, prior to your mother’s death, due to her drug use and lifestyle.
Your brother tried to keep the family together, in relation to your sister and yourself , but it was difficult in terms of your sister’s drug usage. Your brother moved to South Australia in January of 2005. You did not know where he was. Your brother made contact with you this year, for the first time since he left, and it appears he is now suffering from an extremely debilitating, life threatening, disease and has moved into hospice care. You lived with your sister in the family home for a period of time but she was, due to her addiction, unable to really run the house and all money was spent on drugs, meaning that there was no food or basic requirements for living at the house.
Your education was limited. You repeated kindergarten level but then managed to be promoted through primary school. When you reached Year 7 you attended, what was the local high school for you, being University High School. Unsurprisingly, you did not cope in any way with this school. You had no friends. You had no ability to keep up and you were, in fact, recommended to be removed and placed at Brunswick High School; not in the mainstream but in a special annex for children with intellectual disabilities. It was during 1999 that you became a client of the disability services of the Department of Human Services and you attended schooling only part time during that year, which was your first year at the school. You continued to be registered as attending the school but your attendance was best described as spasmodic, during 2000 and 2001.
You commenced attending Kangan Batman TAFE in January of 2002. You claimed, and probably believe, that you completed the course at TAFE, but you were in fact suspended for periods of time for your disruptive behaviour and ultimately refused to go back. You participated in 2004 in the Brunswick Employment Agency program, a program for people with disabilities, in relation to some gardening services. Once again you were sporadic in your attendance. You have basically not worked since you have left school, apart from very short minor bursts as a house painter (through a family friend) or occasional part time work at Coles. You drink alcohol – any that you can get – although it does not appear to be your most significant problem. You do not use drugs at all, possibly due to the observations of the life that your sister led.
In 5 April 2009, you were admitted to the Alfred Hospital, you had been intoxicated and fallen through the roof of a building. You were severely injured, you suffered a closed head injury, being a complex fracture through the base of the skull. Multiple other fractures to the head, the ribs, the arm, kidney lacerations, and injuries to the brain, you had cerebral oedeama, parietal hemorrhages to the brain and you were operated on and then spent three weeks in intensive care, being transferred to the general ward on 1 May 2008 and transferring to Royal Talbot Rehabilitation Centre on 12 May 2008.
You have until recent times been accommodated in relatively unsuitable premises, including living in male boarding houses with much older people. You are a person that others take advantage of quite easily. Approximately two months before you went to prison in June of 2011, you went to live with your aunt, Cassandra Brooks, and her partner Louise, who reside in Chadstone. She is apparently your mother’s sister and she has, of recent times, been willing to assist you.
You have also, again in recent times, in fact whilst you have been in prison, formed a relationship with Kelly Anne Scott. Ms Scott is a university student who has almost completed a Bachelor of Arts in Education. She met you whilst you have been incarcerated and she speaks to you daily on the telephone – at least once a day but sometimes a number of times more. She commenced communication with you by writing, which ultimately moved to the point where she visited you. She now visits you every Thursday for half-an-hour; that having commenced in February of this year. You are in the protection unit of Port Phillip and she speaks to you in that location for half-an-hour. She has not seen you outside prison, but she indicates that you have never shown any signs of aggression, violence or raised voices towards her. She has confirmed that, she knows your aunt and that you are welcome at the home in Chadstone and that, you anticipate residing there and are hopeful of changing your life by staying out of trouble, not mixing with the people you have been mixing with, not drinking and leading a more regular lifestyle, obtaining a job. Whilst all of that may be very difficult for you, I accept that you are motivated to try to attain it. I accept that Ms Scott is a good influence in your life but, I am cautious about your potential for success. The reason for the caution is, that you have an intellectual disability which has been overlaid by an acquired brain injury, resulting in truly significant problems of self-control, capacity of understanding in relation to consequences and rationalising.
I have received a number of reports, all of which have been of assistance. They include a client overview report from the Department of Human Services dated 6 May 2005; a letter from the Alfred Hospital dated 14 July 2009, relating to your injuries from 2008 and the ongoing consequences; an initial report from Dr Paul L Grech, clinical psychologist – 11 November 2009; and a report from Mr Martin Jackson consultant clinical neuro-psychologist dated 29 May 2012.
You have, according to all of these reports, intellectual functioning difficulty in many significant areas. You have an extremely low intellect, which is in fact, at the bottom one percent of the population. You have frequent memory lapses. You have severe attentional, concentration and planning deficits, mood and anxiety related difficulties. All of which, impair your daily functioning and compromise your capacity to meet everyday ordinary living requirements.
Dr Grech in his report in the conclusion at page 9 stated:
In the examiner’s opinion Mr Oakley must be considered by the courts and clinically assessed and treated in the context of his intellectual disability and the residual effects of his acquired brain injury. The legacy of which in the context of an already disadvantaged background and personal tragedy has undoubtedly been a factor in errant decision-making. A diminished sense of self, erratic self-care and memory lapses which impact upon him on a daily basis.
He presents as a pleasant young man with some prospects of rehabilitation but needs significant support in conjunction with appropriate psychiatric and psychological interventions to assist him in the development of mnemonic and forward planning strategies basic life skills and stabilised mood. Such interventions may reduce the risk of recidivism, although his cognitive deficits will be a limiting factor in future.
Mr Jackson’s report went into even further detail about the cognitive defects that you suffer and they are listed at page 16 of his report. I will not refer to all of them. He says that, your cognitive profile will have a major impact on your functioning, and that, all of that is exacerbated if you are intoxicated. He is of the opinion that, your intellectual disability and acquired brain injury are significant factors leading to the offence, with which I am dealing. He is of the opinion that, what you did was a spur of the moment act and may well have been committed without any thought of potential consequences. He is of the view that, your disabilities render you not necessarily being capable of predicting the consequences of your actions, nor being able to monitor your behaviour or determine if your behaviour is an appropriate course of action or not. This is described as “organic aggressive disorder” and it is defined by the absence of planning or foresight. He is of the view that you would have had difficulty in taking into consideration, at the time of the push, that you were in fact next to a river, whether or not the person could swim, as well as what effect intoxication may have on the deceased. All of these are matters, that an ordinary person may take into account but, that it would be difficult for you to consider them in your situation, due to the disabilities to which I have referred.
He referred to the fact, that you had significant damage to the right side of your brain, which results in not only reduced emotional response in yourself, but it means you have difficulty in reading and understanding other people’s emotional states and situations. Remorse is a difficult concept, when you have problems of that nature, and persons suffering the disabilities that you have, are often seen as cold and callous, because of this. It is a result of the brain injury and the incapacity of the frontal lobes to process the information.
Mr Jackson was asked to address in his report, the question of whether this pattern of behaviour could be interrupted and changed. He says, your ability to change has been affected by your mild intellectual disability and then even further compromised by your acquired brain injury. He says, that you are a person who cannot in fact change yourself, not that you don’t desire to, but that you can’t. He indicates that the best and most successful way of trying to change behaviour, in persons such as you, is to put strong support and pro-social activities around them; even though that is not guaranteed to result in success. Permanent supportive accommodation and a job, are the two most protective factors. You have the first of those. You have the ability to reside with your aunt. It is now necessary that the Disability Services find you work of some nature. Mr Jackson being of the view that, if you are just released into the community with no supports, you will undoubtedly reoffend.
You have two major supports. You have accommodation and you also have the support of a decent and caring young woman and it is time for the Department of Human Services to have some serious involvement in your life. They will need to liaise with the Parole Board, and all parties need to ensure that, everything that can be done to support you, upon your release from prison, is done. This is not solely to benefit you, it is to benefit the community as a whole. If you do not reoffend, if you do not hurt people, if you do not commit crime, that is of benefit to the whole of the community.
I accept that your sentence must be strongly moderated by the principles enunciated in Verdins. Your moral culpability is reduced, you are not a suitable vehicle for deterrence, both general or specific, you are a person who will find imprisonment difficult, more difficult than the average and all of those matters will be dealt with in the sentence I impose.
This is, however, a serious form of conduct endangering life, and one of the bases upon which that is determined is to look at the actual consequences. The push to the deceased man happened on a pontoon in the Yarra, a very short distance away from the edge. It was late at night, it was August and it was cold. It was not known by you, whether the deceased man could swim or not and yet you pushed him, you’d all been drinking, so there was a level of intoxication but not one to such a degree that any of you were incapable of your actions, but this conduct was, in the circumstances, potentially dangerous, as it turned out to be.
You have prior convictions for offences of personal violence, you have subsequent offences relating to the infliction of personal violence upon people. You are currently serving a sentence. You have finished your minimum term but have not been released upon parole. There is no relevant pre sentence detention, but you have been serving a sentence since June of last year and have already undergone in excess of a year in custody, in the protection unit at Port Phillip. The sentence I intend to impose will be one that, I will direct, to be served concurrently with the sentence you are currently undergoing.
Accordingly, taking into account the nature of the offending, the gravity of the offence, the need for just punishment, your personal history and circumstances, your plea of guilty, the principles of Verdins, your remorse and your future prospects, including your prospects of rehabilitation, the sentence that I impose in this case is. That you be imprisoned for a period of two years. I direct that you are to serve a period of 12 months imprisonment before becoming eligible for parole. I direct that these sentencing remarks be provided to the Parole Board and to the Department of Human Services, particularly to the person responsible for your care.
I request that the Parole Board and the Department of Human Services liaise in respect of your case and ensure that proper services are put in place prior to your release on parole.
I direct that the sentence I impose today is to be served concurrently with the sentence that you are undergoing.
I have taken into account the principles of totality and the fact that you have been in custody for the period from June of 2011.
Pursuant to s 6AAA, I declare that the sentence I would have imposed, but for your plea of guilty in this matter, would have been a sentence of three years with a minimum of two.
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