R v Strain
[2008] VSC 411
•25 September 2008
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1543 of 2007
| THE QUEEN |
| v |
| NICHOLAS JOHN STRAIN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 - 28, 31 March 2008, 1 - 4, 9 April 2008, 27 June 2008 (Plea) | |
DATE OF SENTENCE: | 25 September 2008 | |
CASE MAY BE CITED AS: | R v Strain | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 411 | |
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Criminal law – Sentence – Convicted of murder – As a result of verbal taunting, the prisoner assaulted the deceased, who was unknown to him, by punching, head-butting and stomping – Prisoner was 20 years old at the time of the offence – Numerous prior convictions but not a significant history of violent offending – Consumption of alcohol and amphetamines leading up to the offence – Imprisoned for 17 years with a non-parole period of 13 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Steven | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Leanne Warren & Associates |
HIS HONOUR:
On 9 April 2008 you were convicted of the murder of David John McFadyen at Melbourne on 15 October 2006 after a trial lasting eleven days. I heard your plea on 27 June 2008.
The trial had been conducted sensibly and expeditiously. Your counsel ultimately left the case to the jury on the basis that you were guilty of manslaughter but not murder.
This particular murder has consequences for the young family of the deceased which will go on for many years. You will now serve a very substantial period in prison. A bit of pretty silly name-calling has caused a man to lose his life.
Mr McFadyen died in the Alfred Hospital, Melbourne on 15 October 2006 as a result of injuries which you inflicted on him on the night, or rather, in the early hours of 12 October 2006 here in Geelong.
The narrative is a fairly brief one. The deceased and his friend, Allan Howell, had been out and about on the night of Wednesday 11 October 2006. The deceased had stolen a couple of cannabis plants from a back yard.
Howell and the deceased smoked cannabis and had other drugs at the deceased’s home address. Although Howell said the deceased had taken Rivotril, there was no evidence of that on autopsy. Howell said the deceased was a bit “off guts”. Howell and the deceased went looking for cannabis plants to steal. Howell was armed with a “slug” gun and the deceased with a small ornamental Samurai sword which he ended up breaking. They found no other plants.
The two men called in to Mr McFadyen’s family home and spoke to his mother and father. Mr McFadyen left the broken part of the sword there.
The men returned to the deceased’s home. They consumed more cannabis and decided to commit a burglary on a milk bar in Garden Street. They did so and stole about 79 packets of cigarettes. They then headed across the main part of the Central Geelong Shopping Centre and got over to a service station near the police station. Howell rejected the possibility of a further burglary there.
The men were riding bikes and returned back towards their homes by riding down Little Malop Street. Howell was riding a girls’ bike with a basket on the front. He was using that to transport the stolen cigarettes.
When the men were riding down Little Malop Street, they came to the Eureka Hotel. You and your co-accused, Sean Patrick Lewis, were standing nearby. Ultimately, Lewis was acquitted at the trial at which you were convicted.
Abuse was levelled at Howell; in particular, it was suggested that words such as “you’re riding a girls’ bike, you faggot” were used. Those or similar words were very likely in the circumstances.
Howell gave evidence that he had wanted to take the matter further, but the deceased did not. You and Lewis followed the two men down to Moorabool Street, continuing the abuse. You appeared to have stopped the pursuit, but were seen to follow the men when they turned right into Malop Street. At some stage the deceased yelled out “I’ll fucking stab you”. Rather than ending the pursuit, those words added fuel to it. The deceased was seen to fall off his bike at least twice. The deceased rode down Yarra Street, but Howell continued some distance further ahead down Malop Street.
The two men were never together again after that. It is possible that Howell managed to go past you and the deceased when you were at about Transvaal Square. Howell, in any event, went to the cemetery, which was his pre-arranged meeting place with the deceased.
The movement of various parties is not absolutely clear after that. Hans Giel, Grant Salinger, Matthew Wakefield and Rohan Wild were in a Toyota Lexcen which was at about the intersection of Eastern Beach Road and Yarra Street. The four men made various observations of the deceased, you and Lewis. Wild was the driver of the car and at some stage Salinger and Wakefield got out of it. Giel gave evidence that he saw the deceased riding his bike down Yarra Street. He was being pursued by you and Lewis. The deceased was yelling at the two of you and either you or Lewis were yelling words to the effect “You’re fucking dead when I catch you”. The deceased was riding around in circles as if to give the two of you a chance to catch up.
The deceased rode through Transvaal Square out into Ritchie Boulevard, where he came off his bike as he tried to mount the kerb. He stood and pointed at you. You ran to him and punched him to the face. He fell to the ground. You jumped on top of him and struck him heavily with fists and elbows. You head-butted him three or four times, saying “die, die, die”. Giel did not see any weapon produced by the deceased. Grant Salinger described a similar scene, he had got out of the car to see what was going on. He did not describe the attack as having the same force and ferocity as had Giel. He admitted that he had picked up the deceased’s bike and offered it to others. He saw no weapon. He had had a lot to drink. Matthew Wakefield described the early events in similar terms to Giel. He said, however, that both he and Salinger joined in the chase, Salinger, twice.
In his description of the early part of the assault, Wakefield thought that the deceased was more caught up with his bike. He said that he heard the words “you’re dead” used before the deceased was head-butted three or four times. He described seeing very hard stomping on the deceased’s head eight or nine times. He did not see any weapon. He admitted having had a large amount to drink. Although he accepted that the words “die, die” might also be explained by grunting noises, he did maintain that he heard the words “you’re going to die” preceding the head-butts. Wild said he saw you punch, head-butt and jump on the head of the deceased. He did not see a knife or screwdriver. As driver of the car, he had not had much, if anything to drink.
The forensic pathologist, Dr Malcolm Dodd, gave evidence that the deceased had died as a result of cerebral oedema and diffuse axonal injury, the latter being violent movement of the brain within the cranium which caused cellular damage. Although he accepted it was possible that injury was caused by one blow which caused the deceased to fall back and hit his head, he said that it was more likely that a series of blows caused the diffuse axonal injury. There was not much in the evidence of the eye witnesses to support the fall to the ground and a hard striking of the head. I am not prepared to sentence you on the basis that the first blow caused the diffuse axonal injury. I make my finding on the whole of the evidence about the attack, including Dr Dodd’s view that the diffuse axonal injury was more likely to have been caused by a multiplicity of blows.
If I am wrong about that, if you attacked the deceased intending to cause really serious injury and the first blow caused the death, it does not matter. The fact that you continued to assault the deceased in the way that you did indicates the extent to which you were out of control. It does not reduce your moral culpability, it could only have been of significance if the jury entertained a doubt that, at the time you struck the first blow, you did not intend to cause really serious injury and that it was that blow which caused Mr McFadyen’s death.
Dr Dodd also found “honeycomb bruising” on the cheeks of the deceased which he said was caused by stomping, in his professional view, more than twice. The pattern on the deceased’s face matched your footwear.
A number of police officers attended the scene. No knife or other implement was found. You said to the police twice that you had acted in self-defence because the deceased had produced a knife. I accept that you did not tell the truth about that.
Since it was you and, to a lesser degree, Lewis who pursued the deceased over a significant distance, it was always going to be unlikely that your response was in self-defence. No knife was ever found. I am satisfied that the jury were satisfied beyond reasonable doubt that no knife or other implement was ever produced.
I am satisfied for the purpose of sentencing that what the deceased was doing on the bike made you angry, probably very angry, and you were intent on seeking revenge upon him.
I accept that when you caught up with him, you lost control and were intent on giving him a very severe beating to punish him for abuse and impertinence. I will sentence you on the basis that it was your intention to inflict really serious injury, rather than to kill outright. In coming to that conclusion, even though the beating was vicious, it did not involve the use of any weapon.
Mr Strain, you are 22 years of age. You were 20 at the time of the offence. You have a large number of prior convictions commencing from 1999 when you were aged 13 years and 4 months, up until 2006. You have 13 court appearances and 60 findings of guilt for those appearances. You were on a suspended sentence at the time of this offence.
I am concerned that although you do not have a significant history of violent offending, the Children’s Court ordered you to “undertake anger management counselling” just after your 14th birthday.
You were further ordered to attend counselling in March 2001 when you were 15. You were placed on a Youth Supervision Order in 2002 twice with an unpaid community work component and conditions for assessment and counselling. You breached both of those orders, but no additional penalty was imposed on you. In May 2003, when you were 17, you were released on a Community-Based Order which you appear to have kept. You were placed on another Community-Based Order in June 2004 when you were 18. You breached that order and had to pay a fine in default, community service. You were placed on a further Community-Based Order in February 2006. You were then 20. You breached that order and you were placed on a suspended sentence on 20 July 2006. Your offending has not been marked by severe violence, but you do have findings of guilt for assault with a weapon, unlawful assault and resisting a police officer. You have three findings of guilt relating to controlled weapons. You have many findings of guilt and convictions for damage to property, using cannabis, failing to answer bail and various traffic offences. You have many findings of guilt in relation to dishonesty. Your prior offending is not particularly serious but you have been a persistent offender.
You were examined by Mr Jeffrey E. Cummins, a Forensic Psychologist, and his report of 24 June 2008 was tendered on the plea. It usefully gathers together many of the matters personal to you. You are 22 and have never been married. You have been involved in a number of relationships and have one child of whom you had the custody at the time of these events. The relationship out of which your son was born lasted for about four years, to about 2004.
You do not regard yourself as having got on well at home. Your parents separated when you were very young. You have one older brother and two older sisters. All of your direct family appear to have supported you at your trial. Both of your parents have formed new relationships and there are other children.
You did not get on well with your mother’s partners and left home at the age of 14. You have always had a good relationship with your mother.
You have not had much schooling, having left school at age 14 and returned only for a brief period after that. It is to your credit that you are trying to improve your education whilst in prison. Since the age of 18 you have worked as a painter, having worked as a labourer prior to that.
Your long hours of work caused trouble in your relationship, which led to turning up drunk and losing your job. That meant for the few months prior to this offending you were unemployed.
You have no formal psychiatric history, but you reported two attempts at suicide related to the breakdown of your most recent relationship, which you appear to have resumed. The end of that relationship led to you losing your job. In the weeks leading up to this offence, you had been using “speed” (amphetamines) regularly and drinking every day. You said to Mr Cummins:
“I was drinking every day and often using speed daily and I was probably off my head on speed when this occurred in Geelong”
and that:
“Well I would have been using speed full on for about one or two days before this on the Monday (11 October 2006) I’d been drinking alcohol from about 10.00 a.m. What I’d do with speed and that I’d usually roll it up in some Tally Ho paper and then I’d swallow it – it’s called a speed bomb”
and finally:
“I’ll have to live with this for the rest of my life and don’t know how I’ll cope. It’s been a real lesson to me because I did not mean to kill him but I think I have to accept I must have ended up feeling angry but I do not have a good memory of this because I was pissed and had a lot of speed”.
Those of us with wide experience in this area would say that your offending did appear to have been driven by alcohol and amphetamines. The trial was conducted on the basis that in your record of interview you denied the use of drugs.
I accept your use of drugs was a trigger to the offending and to your overreaction, which in turn led to Mr McFadyen’s death. In that way it is an explanation, it is not an excuse. On the plea I was asked to accept that your actions were a reaction to what Mr McFadyen and Mr Howell had done. There is a sense in which it is, but only because of your reaction fuelled by drugs and drink. The other men could not have contemplated that you would react in the way that you did. It does not mean, of course, that your actions were random. You had a reason for what you did, but it was an inadequate and irrational one.
You are still young. I have set out your prior convictions. They are not particularly relevant, but it is important to note that you have had many opportunities to have assistance and have not taken advantage of them. I accept that you would now, and it is a great pity that it has taken something as serious as this to bring that point home to you.
The Courts have taken a view of your youth. In many cases for young offenders, rehabilitation will be the most important feature of sentencing. The balance changes somewhat when you are dealing with offences in the most serious category, for example, murder[1]. I cannot ignore for these purposes your chances in the past. Your youth is important and I have had regard to your rehabilitation. It is to be noted that, even though I will impose a significant sentence upon you, you will still be relatively young when you are released. You appear to be taking advantage of the courses available to you in prison.
[1]See DPP v Lawrence (2004) 10 VR 125 per Batt JA [22]
You are of normal, although slightly below average, intelligence. You have been diagnosed as alcohol and amphetamine dependent. You report symptoms of an Adjustment Disorder with Depressed Mood. Those symptoms are a reaction to your present dilemma. You may have had similar symptoms at the time of offending relating to the separation from your girlfriend.
There is nothing about your psychiatric history which will have much effect on sentence.
I accept that you regret what you did and that you are remorseful. I have taken into account the fact that you accept responsibility for Mr McFadyen’s death by allowing your counsel to submit that you ought be convicted of manslaughter. Although there was a certain inevitability about that, you did not have to make that concession.
At the time of his death, David John McFadyen was thirty-four years old. He was the father of three children and his wife, Louise Haberman, was pregnant. His third son was born after his death.
David John McFadyen had been in trouble with the police in the past and with his friend, Howell, he was engaged in criminal activity on this night. Apart from the fact that it meant he was out and about, it really had nothing to do with his death. His background did not mean that he was not a much loved husband, father, son, brother, cousin and friend. On the plea, Victim Impact Statements were read out. They were from:
Louise Haberman Wife of the deceased
Teegan McFadyen Daughter of the deceased
Gillian McFadyen Mother of the deceased
Anne Kirkwood Sister of the deceased
Zoe Kirkwood Niece of the deceased
Statements were also received from:
John McFadyen Father of the deceased
Sarah Williams Cousin of the deceased
Marlene Forster Family friend
I have read all of the Victim Impact Statements. These statements show what a great loss has been occasioned to those who loved David McFadyen. His wife and children have lost his support. His parents suffer the additional hurt that children are not meant to die before their parents. Mr McFadyen was a young man. The suddenness and pointlessness of his death add to their anguish. No sentence I impose will ever be enough to satisfy their grief.
This is another example of a case of violence where amphetamines have played a significant part. It is an example of “street” violence fuelled by drugs and alcohol. Such conduct must cease. You do not fall to be dealt with more severely because of that, but it cannot be avoided that general deterrence is important in cases such as these.
The matters in your favour are that this offending was not premeditated. I have found that you did not intend to kill, but rather to cause really serious injury. You are young and you are remorseful. Your prospects of rehabilitation, although very hard to quantify, cannot be disregarded.
You did, however, murder David McFadyen.
For that murder you are sentenced to be imprisoned for 17 years.
I was asked at the plea to fix a shorter than usual non-parole period. When I have regard to your prior offending and your failure to take advantage of the numerous opportunities you have been afforded, I do not regard it as appropriate to do so. I have fixed a non-parole period which should be long enough to ensure that you will have appropriate support in the community when you are eventually released. I have taken into account the fact that you have been continuously in custody since 12 October 2006 and that not all of that time is accounted for by pre-sentence detention.
I fix a non-parole period of 13 years and 6 months before you are eligible for parole.
I declare that 606 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.
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