R v Pickering

[2013] VSC 353

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0178 of 2012

THE QUEEN
v
CHRISTIAN JOHN PICKERING	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2013
DATE OF SENTENCE:	8 July 2013
CASE MAY BE CITED AS:	R v Pickering
MEDIUM NEUTRAL CITATION:	[2013] VSC 353	Amended 15 July 2013

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CRIMINAL LAW – Sentencing – Affray – Plea of Guilty – Voluntary surrender to police – Sentence of 1 year 4 months imprisonment – Time served by way of pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Piekusis with Mr J. Goodenough	Office of Public Prosecutions
For the Accused	Mr G. Georgiou

HIS HONOUR:

1. At about 9.50 p.m. on Friday 10 February 2012, Ben McLeod presented himself at 12 McMillan Court, Horsham. He was drunk and intent on confronting Shane Campbell over an acrimonious dispute concerning Mr Campbell's former partner. 

1. At the McMillan Street address a number of people had gathered to celebrate a child's birthday.  Adults were present and it appears that considerable quantities of alcohol had been consumed. 

1. Ben McLeod had armed himself with a knife and a pool cue.  He used the pool cue to strike a young man in the face.  This man was part of a group that included you, Mr Pickering.  It appears that a number of the group armed themselves with crude weapons, although I accept that you, Mr Pickering, were not armed. 

1. I accept that Mr McLeod was aggressive and was calling out for Mr Campbell, who was initially not present at the front of the house.  I also accept that Mr McLeod was told to leave by another young man and that you, Mr Pickering, raised a glass beer bottle in his general direction to encourage him to take this course. 

1. It was only after this that Mr McLeod produced a hunting knife and used the billiard cue in the way I have described.  A female companion of Mr McLeod's endeavoured to pull him away and end the confrontation but he shrugged her to the ground. 

1. Four men, including you, Mr Pickering, then advanced towards Mr McLeod.  He backed away towards the corner of McMillan Street and Shirley Street.  At that stage the group, including you, had the option of retreating and defusing a volatile situation.  Instead, you pursued Mr McLeod to the corner.  Mr Pickering, you attempted to punch the deceased to the head but missed and you fell to the ground. 

1. Mr McLeod then ran approximately 50 metres up Shirley Street.  There, he was tackled to the ground.  He was punched and kicked by other men.  Your contribution,  Mr Pickering, is described in the prosecution opening as to "throw a few punches".  It appears that Mr McLeod was standing when you did this. 

1. You cut your hand at some stage at about this time.  I am unable to resolve the precise circumstances in which this occurred but I accept that you retired from the affray at that stage. 

1. Subsequently, Mr McLeod was savagely beaten with a weapon.  He sustained very serious head injuries and died.  This is a serious example of the common law offence of affray.  It is no mere rowdy gathering outside a pub or club.  I accept that it occurred spontaneously and in the face of some provocation.  However, ultimately, it involved a group attack upon a man rendered defenceless by that group.  It took place in two locations extended over some minutes and involved the use of, as I have said, crude weapons that were, nonetheless, brutal and effective. 

1. I do take into account, Mr Pickering, that your role in the affray was considerably less active than others and that you apparently retired from it before the final brutal onslaught. 

1. By your activities, you helped to promote the affray and you must take some share of the blame for the overall picture. 

1. I emphasise, however, that I do not and cannot sentence you for causing Ben McLeod's death. 

1. I have read a victim impact statement from Mr McLeod's mother.  The circumstances surrounding the death of her son have naturally caused her great distress.  To the extent that that distress can be attributed to your offending on the charge of affray, I take it into account.  It is impossible not to feel great sympathy for the victim's mother. 

1. I turn now to individual factors, Mr Pickering. 

1. You are 26 and one of four siblings.  You are from a sound family background and you have a reasonable work history since completing Year 11 at Horsham TAFE.  You have worked intermittently since leaving school, predominantly seasonally at the Grain Corp in Warracknabeal.  I have read a reference from Bob Fleming, Grain Services Manager at Grain Corp, which speaks highly of your work ethic and performance. 

1. You commenced living with Jessica Ferguson in 2007 and you have two children together.  You are also stepfather to Ms Ferguson's two older children.  I understand that as a consequence of this incident Ms Ferguson and the children have relocated to another part of Victoria and that you propose to join them there. 

1. In 2004 you were involved in a bad car accident and you suffered burns and multiple fractures.  I am informed that you still carry the emotional scars from this incident and a reference from Mr Chris McCallum speaks of this.

1. Your criminal history commenced a couple of years after that car accident when you were 19.  Relevantly, you have prior convictions for recklessly causing injury, unlawful assault and affray.  These are serious prior convictions for the offence of affray that you currently confront. 

1. I regard specific and general deterrence as matters that must be given weight in the sentence that I impose. 

1. I accept that you are entitled to a sentencing discount for the utilitarian value of your plea of guilty.  I also consider that it is some evidence of remorse. 

1. You presented yourself voluntarily at the Horsham police station on the day after this incident and I consider that in your interview there are various answers which exhibit an element of remorse. 

1. You are still a young man and have family responsibilities and a demonstrated capacity for work.  I consider your prospects for rehabilitation as reasonable despite your prior history. 

1. For most of your 17 months in custody you have laboured under the burden that you will have to face trial in this court for the offence of murder.  For a young fellow with two young children and two young stepchildren I accept that  this prospect has amounted to a substantial additional burden upon you.

1. The maximum penalty for affray is five years.  You have already served a little under 30 per cent of that maximum.  In all the circumstances I am satisfied that the prison term that you have already served is an adequate reflection of the competing sentencing interests that I have referred to.  I am fortified in that conclusion by the attitude taken by the prosecution in their most helpful submissions. 

1. Stand up, please, Mr Pickering. 

1. On the offence of affray I sentence you to one year and four months' imprisonment.  I declare that 513 days in custody, not including today, have been served by way of pre‑sentence detention. 

1. Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of two years' imprisonment with a minimum term of 18 months before parole eligibility.

1. You may be seated, Mr Pickering. 

1. The effect of that, Mr Pickering, is that once the necessary paperwork is done you will be released immediately.