R v Rivett - [2020] VSC 563

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0115

Between:
THE QUEEN
-and-
DARYL GARY RIVETT	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2020
DATE OF SENTENCE:	3 September 2020
CASE MAY BE CITED AS:	R v Rivett
MEDIUM NEUTRAL CITATION:	[2020] VSC 563

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CRIMINAL LAW — Sentence — Manslaughter — Accused, in anger, punched victim to head with two left-right combinations while victim raised hands in defensive pose — Victim fell backwards and struck head on roadway, causing catastrophic brain injury — Accused dragged unconscious victim off roadway but left in bushes — Accused later called ambulance, went to police and made admissions — Victim died three days later — Early plea of guilty — Remorse — Numerous prior convictions for assault — Traumatic childhood — Homeless — Entrenched drug and alcohol abuse — Positive changes on remand — Guarded/reasonable prospects of rehabilitation — COVID-19 restrictions in prison — Current sentencing practices — Relevance of general deterrence, specific deterrence, just punishment, denunciation, community protection and rehabilitation — Parsimony — Sentence of nine years’ imprisonment with non-parole period of six years — But for plea of guilty, sentence of (at least) eleven years’ imprisonment with non-parole period of eight-and-a-half years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr P Tiwana	James Dowsley & Associates

HIS HONOUR:

Overview

In the early hours of 19 December 2019, on a street just off the Nepean Highway in Frankston, Daryl Rivett, in a fit of drunken pique, punched Lamin “Lee” Masterton-Bojang with two left-right combinations to the head. Mr Masterton-Bojang, who had his hands up in a defensive manner at the time, fell backwards, striking the back of his head on the roadway. He did not move a muscle thereafter.

After dragging his motionless victim off the road to avoid any risk of further harm from passing vehicles, Mr Rivett left him there alone, unconscious, under some shrubs. Eventually (about an hour later), Mr Rivett came to his senses and called emergency services from a nearby public payphone, albeit he did not give his name and left before the ambulance arrived. Mr Masterton-Bojang was rushed to the Frankston Hospital and then to the Alfred Hospital in Melbourne. Later that evening, after being urged to do so by his former partner, Mr Rivett handed himself in to police, to whom he admitted his involvement in the assault.

Sadly, three days later, Mr Masterton-Bojang died in hospital as a result of his “non-survivable” brain injury. He was 53. Inevitably, his family and friends are devastated at the tragic loss of their loved one.

Initially, Mr Rivett was arrested and charged with assault and related alternative offences. After Mr Masterton-Bojang died, however, he was charged with manslaughter. He has remained in custody since his arrest.

Mr Rivett has since pleaded guilty to, and is now to be sentenced for, manslaughter.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rivett

Details

AGLC: R v Rivett [2020] VSC 563
Case: [2020] VSC 563
Decision Date: 3 September 2020

CaseChat Overview and Summary

In the case, the respondent, Rivett, was charged with manslaughter following an altercation where he punched the victim twice, causing fatal injuries. The case was heard in the higher court, which had to determine the appropriate sentence for the respondent’s crime. The respondent had a history of assault and a troubled background, which included a traumatic childhood, homelessness, and substance abuse. Despite these factors, the respondent had shown signs of positive change during his time on remand and had a guarded but reasonable prospect of rehabilitation. The court had to balance various sentencing considerations, including general and specific deterrence, denunciation, just punishment, community protection, and rehabilitation, in light of the respondent's early guilty plea and remorse. The court also had to consider the impact of COVID-19 restrictions in prison on the respondent's rehabilitation prospects.

The legal issues before the court involved assessing the appropriate sentence for manslaughter, taking into account the respondent's background, the nature of the offence, and the principles of sentencing. The court had to consider the respondent's early guilty plea and remorse, as well as the potential for rehabilitation. The court also had to balance the various purposes of sentencing, including deterrence, denunciation, just punishment, community protection, and rehabilitation, in light of the respondent's troubled past and the circumstances of the offence. The court had to consider the impact of COVID-19 restrictions in prison on the respondent's rehabilitation prospects. The court also had to determine the relevance of the respondent's numerous prior convictions for assault and his entrenched drug and alcohol abuse in the sentencing process.

The court found that the respondent's early guilty plea and remorse were significant mitigating factors, as was his guarded but reasonable prospect of rehabilitation. The court also found that the respondent's troubled background and substance abuse were relevant to the sentencing process, but did not outweigh the seriousness of the offence. The court considered the various purposes of sentencing, including deterrence, denunciation, just punishment, community protection, and rehabilitation, and determined that a sentence of nine years’ imprisonment with a non-parole period of six years was appropriate. The court noted that but for the respondent's early guilty plea, the sentence would have been at least eleven years’ imprisonment with a non-parole period of eight-and-a-half years. The court also considered the impact of COVID-19 restrictions in prison on the respondent's rehabilitation prospects and found that they did not significantly affect the sentence.

The court ordered that the respondent be sentenced to nine years’ imprisonment with a non-parole period of six years. The court noted that but for the respondent's early guilty plea, the sentence would have been at least eleven years’ imprisonment with a non-parole period of eight-and-a-half years. The court also noted that the respondent's troubled background and substance abuse were relevant to the sentencing process, but did not outweigh the seriousness of the offence. The court found that the sentence was parsimonious, taking into account the various purposes of sentencing and the respondent's background and offending history.

Orders