R v Vickerstaff (No 2)
[2019] ACTSC 343
•10 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vickerstaff (No 2) |
Citation: | [2019] ACTSC 343 |
Hearing Date: | 2 and 5 December 2019 |
DecisionDate: | 10 December 2019 |
Before: | Mossop J |
Decision: | See [60] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender identified as the principal offender – offender entered a plea of guilty following pleas of guilty by co-offenders – some evidence of premeditation – weapon used in offence – use of weapon opportunistic – consideration of remorse – consideration of mental health diagnoses |
Legislation Cited: | Crimes Act 1900 (ACT), s 15 Criminal Code 2002 (ACT), ss 20, 45A |
Cases Cited: | R v Cassidy [2008] ACTSC 13 R v Collins [2004] ACTSC 48 Wilson v The Queen (1992) 174 CLR 313 |
Parties: | The Queen (Crown) Graeme Vickerstaff (Offender) |
Representation: | Counsel R Christensen (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender) | |
File Number: | SCC 274 of 2018 |
MOSSOP J:
Introduction
The offender, Graeme Jarrett Vickerstaff, pleaded guilty to one count of manslaughter by joint commission contrary to s 15 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 20 years’ imprisonment.
Facts
The victim, Bobby Stewart Allan, died after an altercation involving Mr Vickerstaff, Dean Welsh and Colin Booth.
Mr Allan was a supplier of the drug ice. Both Mr Allan and Mr Vickerstaff bought and sold drugs. Mr Vickerstaff had purchased drugs from Mr Allan for a period of 18 months prior to Mr Allan’s death. Mr Vickerstaff, who was a mechanic, had worked on Mr Allan’s vehicles over that time. He had a belief that Mr Allan was intimately involved with his girlfriend, who I will refer to as CD, with whom Mr Allan shared house. Mr Allan had also supplied methamphetamine to Mr Booth. Mr Welsh had no personal association with Mr Allan but knew he sold drugs to Mr Vickerstaff.
In the early hours of 17 December 2017, the offenders had attended Mr Allan’s house with the intention of purchasing drugs. They travelled there by car driven by Mr Booth. Mr Vickerstaff and Mr Welsh had used heroin while waiting to be picked up by Mr Booth. On the way there Mr Booth stopped at the 7-Eleven service station in Fyshwick and put petrol in the car. Mr Vickerstaff bought an aerosol can of Motortech degreaser. Mr Welsh was with him at the time and knew that it had been purchased. Mr Vickerstaff purchased the degreaser with an expectation that he might use it to inflict physical harm upon Mr Allan. The car in which they were driving sustained a flat tyre shortly before it was parked nearby Mr Allan’s address in Rivett. While Mr Vickerstaff had an expectation that he might inflict physical harm on Mr Allan, the purpose of the three offenders in going to his house was to purchase drugs. The intention of purchasing drugs changed at the time that Mr Allan opened his front door. At that point the offenders formed an intention to commit assault and/or a robbery upon Mr Allan.
Mr Allan and a woman at the house, who I will refer to as DP, had both used ice on that evening. She had also used liquid GHB. Mr Welsh opened the screen door or held it open. Mr Vickerstaff knocked on the door. Mr Booth was one or two metres behind them. 20 to 30 seconds later Mr Allan opened the door.
When Mr Allan opened the door, Mr Vickerstaff sprayed the pressurised can of engine degreaser into Mr Allan’s face. Mr Allan stepped back and tried to close the door. Mr Vickerstaff pushed on the door and forced his way inside. Mr Welsh immediately stepped in after him. Mr Vickerstaff violently assaulted Mr Allan. That assault included the use of a baseball bat which Mr Vickerstaff found near the front door to strike Mr Allan on the head two or three times. Mr Allan attempted to defend himself. Mr Vickerstaff yelled abuse at Mr Allan relating to his alleged involvement with Mr Vickerstaff’s girlfriend, CD. Mr Allan denied having done anything with her. Mr Welsh was positioned between Mr Allan and the front door so that Mr Allan was unable to get away or move away from Mr Vickerstaff. Mr Booth was outside the front door when the altercation commenced. He realised that it might be possible for drugs to be obtained by stealing them from Mr Allan. His agreement to the assault is to be inferred from the fact that he remained in physical proximity, did not withdraw and took no steps to prevent the conduct being engaged in. He accepts that it would have been apparent to his co-offenders that he agreed with the assault.
Each offender has admitted that he was reckless as to the offence of manslaughter being committed.
The altercation resulted in a significant amount of blood being shed in the front entrance area, towards the living room and kitchen and immediately inside and outside the front door.
After being injured at the house Mr Allan ran outside and into Mr Booth who fell over. Mr Allan was attempting to leave the front yard of the residence. He fell into the fence. Having left the house Mr Allan went down the street yelling “help me” and seeking assistance from his neighbours. He unsuccessfully attempted to obtain assistance at four houses before gaining the attention of the residents of a house some distance down the street. He knocked loudly on the door and asked them to open the door. Those residents were scared and called police. The deceased continued to attempt to get their attention for a minute or two before the noise stopped. Police arrived a few minutes later. When one of the residents opened the door Mr Allan was lying on the front porch unresponsive. She commenced CPR and continued for about 10 minutes until the ambulance arrived. Ambulance officers took over and continued for 30 minutes before they declared that Mr Allan was dead.
The post-mortem examination indicated that Mr Allan did not die of natural causes but that the cause of death could not be attributed to a single mechanism or specific event. The autopsy report identified cardiac arrest as the direct cause of death which in turn was a consequence of the combined effects of blunt force head trauma, exertion, cardiovascular disease and methamphetamine toxicity. The pathologist also identified that stress and stressful events are associated with sudden death, especially in persons with pre-existing heart disease and that the more stressful the event the more likely the person is to sustain a cardiac arrest. He also identified that the active constituents of the degreaser, if absorbed by the deceased, may have contributed to causing death in concert with the other factors identified.
Mr Vickerstaff stole Mr Allan’s vehicle and his bicycle. He left in Mr Allan’s vehicle with DP.
Mr Welsh and Mr Booth took property belonging to Mr Allan from the house. Mr Booth took his wallet, a bag of methamphetamine, a mobile phone and a credit card. Mr Welsh placed the baseball bat used in the altercation in Mr Booth’s vehicle. He also placed a duffel bag which contained a laptop and an iPad taken from the premises in the vehicle. Mr Welsh and Mr Booth took a taxi to leave the area. The pair made their way to Manuka and then back to the flat where Mr Booth was squatting at the Stuart Flats where they injected methamphetamine. Mr Welsh then said that he had Mr Allan’s key cards and wanted to use them to buy alcohol. Mr Welsh had made a number of transactions at Coles and a Coles express in Manuka prior to arriving at the flat. He then purchased $137 worth of alcohol using one of Mr Allan’s cards.
On 8 January 2018, Mr Vickerstaff gave a version of events to police which implicated Mr Booth and exculpated himself. In June 2018 when he was arrested, he participated in a recorded interview in which he gave a version of events which exculpated himself and inculpated Mr Booth and Mr Welsh.
Each offender is liable pursuant to s 45A of the Criminal Code 2002 (ACT) because he entered into an agreement with the others to commit an assault and/or robbery and the offence of manslaughter was committed in the course of carrying out that agreement. The agreement was, at least, a non-verbal understanding between each of the offenders formed at the time that the assault by Mr Vickerstaff commenced. Each of the offenders is liable because he was reckless that an unlawful and dangerous act with an appreciable risk of serious injury would be committed: see Criminal Code, s 20; Wilson v The Queen (1992) 174 CLR 313; Criminal Code, s 45A(3). Each offender intended that at least an assault would be committed under the agreement: Criminal Code, s 45A(4).
Victim impact statements
Victim impact statements were read by or on behalf of a number of persons associated with Mr Allan. They were his father, his daughter, his sister, two ex-partners, his cousin, his stepfather and his mother.
These statements provided an example of the importance of such statements as part of the sentencing process. They were very important in order to humanise Mr Allan, to demonstrate the important family and social connections that he had and to demonstrate the tragic loss for his family occasioned by his death. It was counsel for Mr Welsh who frankly said in his written submissions:
The impact of Mr Welsh’s offending on the immediate and broader family together with the community has been extraordinary.
Anyone who was sitting in court listening to the reading of a number of victim impact statements of the deceased’s family who was not in some way affected lacks the fundamental fabric of truly knowing what it means to have a sense of family, belonging, community and purpose.
I adopt this summary of the effect of the victim impact statements and consider that it accurately reflects not only the impact of Mr Welsh’s offending, but also that of Mr Vickerstaff and Mr Booth.
If out of this tragic loss it is possible to identify persons who are more significantly affected, emphasis must be given to his parents and stepfather as well as his children. Mr Allan was the second of his parents’ two sons to die prematurely. For his children, the loss of their father and the likely long-term consequences of that loss will be very significant.
Objective seriousness
This case involved a violent assault upon an unsuspecting victim using weapons. It first involved the attack using the degreaser in circumstances where the degreaser had been earlier obtained in the expectation that it might be used to inflict harm upon the victim. This was then followed up by a violent attack involving two or three blows to the head using the metal baseball bat. The use of the baseball bat appears to have been opportunistic. The extent of the violence is indicated by the extent of blood spatter at the scene and the nature of the injuries to Mr Allan’s head.
Mr Vickerstaff was clearly the principal offender. It was he that felt ill towards Mr Allan by reason that he suspected that Mr Allan was intimately involved with CD, Mr Vickerstaff’s girlfriend.
Mr Welsh was with Mr Vickerstaff at the door but did not participate in the attack. He was however aware of the purchase of the engine degreaser. His presence at the door in close proximity to Mr Vickerstaff presented an obstacle to Mr Allan making any escape.
Mr Booth had the least significant role, not participating in the attack but being present and only being part of the agreement for the purposes of s 45A of the Criminal Code through a non‑verbal understanding by his presence and the fact that he took no steps to stop or otherwise distance himself from the attack.
Each offender stole from Mr Allan following the assault. They are not charged for these crimes. However, the commission of these crimes does indicate the lack of any regard for Mr Allan in the aftermath of the assault.
I consider that Mr Vickerstaff’s offending is in the mid range of objective seriousness for the offence of manslaughter. Mr Booth and Mr Welsh’s offending are both in the low range of objective seriousness for this offence having regard to the extent of their involvement.
Subjective circumstances
Mr Vickerstaff was raised in the greater western suburbs of Sydney with his mother and father, who divorced when he was 13 years old. Both his parents are now deceased. He has an elder brother with whom he has no contact. He had contact with both of his parents prior to their deaths.
He left the family home at the age of 14 and resided on the streets of Kings Cross and other suburbs of Sydney's east until 2007 when he relocated to Canberra where he has remained.
He has four children. He is in contact with the eldest two, who currently reside in New South Wales (NSW) and has not had contact with the second youngest child as she resides in the Northern Territory with her maternal grandparents. A fourth child was born in 2017 with his current partner CD, who resides in Canberra. He reported he has been in this relationship for approximately three years.
Mr Vickerstaff completed school (though it is not clear to which year) and obtained qualifications as an automotive mechanic. He has held several different positions including that of a labourer, carpet layer, bartender, horticultural roles and most recently as a carpet cleaner where he maintained employment for approximately three years. He reported that whilst remanded in custody he has been employed to work in the garden at the Alexander Maconochie Centre (AMC) and has held this position since the start of 2019.
When last in the community, Mr Vickerstaff was the recipient of government benefits and he reported no savings or assets.
He has had a problematic history with both alcohol and illicit substance use. The offender reported that he started using alcohol and illicit substances at the age of 13 as a means of coping with a variety of life stressors and continued this behaviour as a result of peer influence.
He claimed previous abstinence from alcohol and illicit drugs for a period of six years, and reported that he relapsed two years ago on one occasion by consuming heroin. He indicated that this was leading up to the offence before the court. His claims of abstinence were not able to be verified by the author of the pre‑sentence report. The offender advised the author of the pre‑sentence report that he was an intravenous drug user and claimed he had been able to abstain from using illicit substances following his relapse before committing the offence before the court.
He said he was aware his actions were unlawful and stated he felt terrible about his offence. Despite this, he justified his actions by way of his illicit substance use. He reported that he did not remember much of the day the offence took place as he was distracted by news that his mother was dying.
The opinion of the author of the pre‑sentence report is as follows:
Mr Vickerstaff is a 45-year-old man with an extensive history of difficulty throughout his formative years. It appears that Mr Vickerstaff's experiences of homelessness, exposure to alcohol and illicit substances has significantly impacted on his ability to make sound decisions.
There appears to be a correlation between the offender's substance abuse and offending behaviour. The apparent inability to manage his emotions is considered to have contributed to his offending on this occasion, which further appears to be exacerbated by his substance use. It is of concern that Mr Vickerstaff's offending behaviour has significantly escalated since his last sentence.
…
The offender presented with some insight into the impacts of his offence on others, however this is marred with justifications for his behaviour. These insights appear to be honest in nature, however, the lack of commitment to address his issues in the past raises concerns in relation to his ability to achieve successful outcomes that will be both meaningful and sustainable.
A psychological report prepared by Tabitha Frew, and Professor Douglas Boer, both clinical psychologists, was tendered by counsel for the offender.
The report describes his upbringing and personal circumstances in more detail. The report indicates that excessive drug and alcohol use led to Mr Vickerstaff not being able to maintain his stable work history beyond 2004. In relation to drug use, it indicates that he started using methamphetamine by injection in 1989 and continued on and off until the recent offence. He reported heroin use between 1990 and 2004 with minimal recent use prior to his incarceration.
His psychiatric history includes diagnoses of major depressive disorder and attention deficit hyperactivity disorder (ADHD). He reported eight inpatient admissions to the Royal Prince Alfred Hospital for attempting suicide between 1998 and 2006. He reported that his criminal history resulted from his long-term substance abuse. The report indicated that on the HCR-20 assessment he posed a moderate risk of future acts of violence compared to other individuals with a history of violent criminal offending.
Unsurprisingly, the report indicated that his risk of reoffending would be dependent upon his mental health, the extent of his contact with antisocial peers and any relapse into illicit drug use. He has poor insight into the impact of his mental health issues and substance use. The report makes a diagnosis of major depressive disorder, moderate, recurrent, ADHD, autism spectrum disorder level 1 (as a provisional diagnosis), post‑traumatic stress disorder, amphetamine-type substance use disorder, severe in early remission, alcohol use disorder, severe, in early remission. The report indicated that at the time of the offending he suffered from ADHD, autism spectrum disorder, depressive symptoms and substance dependency. The report provided “these were long-standing conditions that were likely to have made him vulnerable to his history of offending behaviours, as well as the current offence”. This opinion is elaborated on at some length. The report tentatively suggests that the offender’s abstinence from methamphetamine use for the two weeks prior to the offence combined with the news of his mother’s imminent death may have contributed to his impulsivity and difficulty with inhibition of distressing emotions.
The report states that Mr Vickerstaff demonstrated remorse for the offence and expressed empathy for the victim, acknowledging the impact of his death on Mr Allan’s children and family.
The author of the report expressed the view that his depressive symptoms “were likely to have been worsened by the lengthy period of solitary confinement” in prison, although his symptoms of autism spectrum disorder “potentially buffered against a significant psychological decompensation as a result of his preference for solitary time”.
The offender wrote a letter to the court expressing his remorse, describing his previous relationship with the victim and that Mr Allan had “never harmed anyone. He didn’t rip anyone off and was always good to me”.
I accept that Mr Vickerstaff now is remorseful. That contrasts with the evidence of his behaviour in the period following Mr Allan’s death and during the police investigation where the evidence discloses a callous and self‑regarding attitude to his actions and their consequences. His remorse was not sufficient to manifest itself in any admission of guilt until his co-offenders, by their admissions, compelled him to do so.
While in custody Mr Vickerstaff was the victim of an assault in which he suffered facial fractures. He also appears to have suffered an undisplaced fracture of his jaw. This occurred on 25 October 2018. These were serious but not life-threatening injuries and required overnight treatment at the Canberra Hospital. A report of the ACT Inspector of Correctional Services identified that the assault was planned. It identified that the offender was assaulted by up to three other inmates. The offender declined to identify them and he declined to make any complaint to police. However, following the assault he spent approximately one year in protection with the result that he had less contact with other prisoners as described in the psychologists’ report.
Criminal history
Mr Vickerstaff has criminal histories in NSW and the ACT. In NSW he has convictions relating to perjury, possession of drugs, driving offences, property offences, weapons offences, breaking and entering and supplying drugs. He has no offending in NSW after 2004. His record in the Territory includes four counts of failing to appear in 2012, two counts of common assault in 2013, an offence of taking a motor vehicle without consent committed in 2015 and another failure to appear in 2017. The notable features of his criminal history is that there is a break between 2004 and 2012 and that his offending since 2012 has been minor.
Plea of guilty
The trial was listed to commence on 2 September 2019. On 28 August 2019 Mr Booth indicated an intention to plead guilty and the trial was adjourned until 9 September 2019. Mr Booth did in fact plead guilty on 29 August 2019. Mr Welsh then pleaded guilty on 5 September 2019. The evidence that he was to give was to be addressed by way of a Basha inquiry. The offender pleaded guilty on 11 September 2019. A conviction was recorded on that date. The plea of guilty was clearly at the last minute and made in circumstances where his two co-offenders had pleaded guilty and would give evidence against him. The plea is not indicative of remorse or a desire to facilitate the administration of justice, but clearly had significant utilitarian value having regard to the fact that the trial was originally listed for six weeks and, had he not pleaded guilty, would still have been required to run for several weeks. Having regard to the last minute nature of the plea and the increasing strength of the Crown case, this is a case in which a discount of less than 10% is appropriate. I will allow a discount of approximately 7% on account of the plea of guilty.
Time in custody
The offender has been in custody in relation to this offence since 27 June 2018. The sentence imposed will be backdated to take this period into account.
Comparable cases
The parties referred me to a number of manslaughter cases for the purposes of assessing current sentencing practice.
In R v Urlich [2018] ACTSC 345 (Urlich) the offender killed the victim by the deliberate application of force to his neck. He was tried for murder and found guilty of manslaughter. He had admitted killing the victim and raised self‑defence. The offender was assessed as having a medium low risk of reoffending, but a long history of drug abuse. He had demonstrated little by way of remorse. In resentencing following an appeal (see Urlich v The Queen [2019] ACTCA 30), the starting point was a sentence of 10 years reduced by 5% to nine years and six months on account of his assistance to the administration of justice in making certain admissions at the trial. The non-parole period for that offence and a sentence of 10 months for interfering with a dead body was six years and three months.
R v Navin [2016] ACTSC 109 involved the unlawful killing of a person known to the offender by stabbing him. At the time of the killing the offender was suffering from an abnormality of mind which substantially impeded mental responsibility for the act. The offender was sentenced to 12 years’ imprisonment with a non-parole period of six years.
R v Porritt [2008] ACTSC 71 was a case in which the offender had stabbed his mother 57 times. Manslaughter rather than murder was the verdict because the trial judge accepted the submission that the accused neither intended nor foresaw that his acts would cause the severe injuries that resulted. The offender had Asperger’s disorder. He was sentenced to five years’ imprisonment suspended after 22 months.
R v Cassidy [2008] ACTSC 13 involved an offender who hit his four-year-old daughter on the head with a heavy metal saucepan. The child was subsequently assaulted again. She died two days later. The offender pleaded guilty. He was sentenced to 15 years’ imprisonment with a non-parole period of 10 years and two months.
R v Collins [2004] ACTSC 48 was a case in which the offender, who was very drunk, stabbed his mother with a hunting knife. Weinberg J indicated that that the sentence of three years and six months and a non-parole period of 18 months was lower than the gravity of the crime would warrant and it “should not be regarded as a precedent for any other case of manslaughter”: R v Collins [2004] ACTSC 73. The lenient punishment was imposed because of the offender’s youth, his prior good character, his remorse and his good prospects of rehabilitation.
R v England [2001] ACTSC 33 involved and assault in Civic after drinking at clubs. It involved what was described as “a cowardly and savage attack by drunken louts”. The victim had been punched in the head a number of times. The personal circumstances of the offender were positive. He had a difficult upbringing and “despite the overwhelming odds the offender appears to have freed himself from the abusive background of his early years”. He was sentenced to imprisonment for seven years with a non-parole period of four years: R v England (Unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 26 April 2001).
R v Singh [1999] ACTSC 66; 154 ACTR 93 was a case in which the offender drugged her boyfriend and injected him with a lethal dose of heroin. The verdict of manslaughter was by reason of diminished responsibility. The sentence was 10 years’ imprisonment with a non-parole period of four years.
Consideration
I adopt what was said by Burns J in Urlich at [2]-[3]:
2.The offence of manslaughter carries a maximum penalty of 20 years’ imprisonment. It has been described as the most protean of offences in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [34]. Because of the many forms that the offence may take, varying from a death caused by negligence up to something bordering upon murder, a wide range of sentences may be imposed with regard to individual offences of manslaughter. Every offence of manslaughter involves the death of a human being, so that to a great extent the objective gravity of the individual offence depends not upon the consequence of the offence but upon the particulars of the offence and the moral culpability of the offender. Whilst the objective gravity of the offence may vary greatly from case to case it is always a serious offence because it involves the taking of a human life. …
3.No penalty that this Court can impose can equate to the loss of [the victim’s] life. We do not live in an age which seeks revenge for the unlawful taking of a life or where the credo is an eye for an eye. Our society, through the laws passed by the legislature and implemented by its courts, seeks to appropriately punish offenders based upon the culpability of individual offenders and not simply on the consequences of their actions. The maximum penalty prescribed by the legislature is an important yardstick in sentencing because it is an indicator of the penalty that the legislature has fixed for an offence that falls within the worst category of a particular type of offending.
It is clear beyond reasonable doubt that Mr Vickerstaff recognised that there was a realistic prospect of a violent altercation prior to attending the house. It is for that reason that he purchased the engine degreaser. It is not possible to determine beyond reasonable doubt any greater degree of premeditation than that. It is clear however that the offender harboured some resentment arising from the offender’s perception that Mr Allan was somehow intimately involved with Mr Vickerstaff’s girlfriend CD. This provides an explanation for his conduct which would otherwise not be adequately explained. The deployment of the baseball bat in the attack appears to have been opportunistic, but obviously increased the level of harm that was done to Mr Allan.
I do not accept that the various diagnoses and tentative diagnoses put forward by the psychologists affected his behaviour in a way that would reduce his culpability or make him less suitable as a vehicle for general deterrence. I do however take his mental health conditions into account as part of his subjective circumstances.
I accept the evidence that he was assaulted whilst in custody and spent a period in a classification which gave him less access to interaction with other prisoners. I do not consider either the assault or the period in protective custody as warranting any significant reduction in the sentence that he is to serve. Senior counsel for Mr Vickerstaff did not identify in his written submissions any principled reason why this would be the case. I do however take this into account as part of his subjective circumstances.
While I accept that he is now remorseful, as I have referred to earlier, his conduct after the incident reflected a callous disregard for Mr Allan. On 8 January 2018 and after his arrest Mr Vickerstaff actively sought to mislead police in order to protect himself and to implicate Mr Booth and Mr Welsh. I do not consider that any remorse which he now feels reflects significantly on his prospects of rehabilitation.
In my view having regard to current sentencing practice in relation to the offence of manslaughter and the circumstances of this case, the appropriate starting point is a sentence of 10 years’ imprisonment. I have reduced this by nine months (approximately 7%) on account of the plea of guilty. This gives a sentence of 9 years and 3 months. Having regard to the gravity of the offending and his criminal history I see no reason to set a non-parole period which is less than 70% of the head sentence. The non-parole period will, therefore, be a period of six years and six months. The sentence will commence on 27 June 2018.
Orders
The orders of the Court are:
1. On the charge of manslaughter (SCCAN3794/2019) the offender is sentenced to imprisonment for nine years and three months commencing on 27 June 2018 and ending on 26 September 2027.
2. The non-parole period starts on 27 June 2018 and ends on 26 December 2024.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 18 December 2019 |
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