R v Vincec
[2017] VSC 602
•19 OCTOBER 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0172
| THE QUEEN |
| v |
| RICHARD VINCEC |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2 OCTOBER 2017 |
DATE OF SENTENCE: | 19 OCTOBER 2017 |
CASE MAY BE CITED AS: | R v Vincec |
MEDIUM NEUTRAL CITATION: | [2017] VSC 602 |
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CRIMINAL LAW – Manslaughter – Sentence – Death caused by impact of head of victim on ground after infliction of single punch – Offence involved consumption of drugs and alcohol – Genuine remorse – Early plea of guilty – Very good prospects of rehabilitation – Sentenced to 8 years’ imprisonment with non-parole period set of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose QC | Mr John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Richter QC | Paul Vale Criminal Law |
HIS HONOUR:
Richard Vincec, you have pleaded guilty to the manslaughter of Jaiden Walker, the maximum penalty for which is 20 years’ imprisonment. The circumstances surrounding the offence are as follows.
Circumstances
On Saturday 6 May 2017, after meeting your friend, Jack Parnell, at Southern Cross Station at 1:00 pm, you caught a taxi to the Melbourne Cricket Ground to watch a football game between Carlton and Collingwood. During the game you had about four mid-strength beers and left the ground at approximately 5:00 pm. You and Parnell went to a few bars and ended up at the Cherry Bar in AC/DC Lane near Flinders Lane, Melbourne.
That day, Jaiden Walker went to the house of his friend, Jed Bolte, where Bolte’s pregnant partner, Cassandra Ferguson, was celebrating a baby shower. Bolte’s sisters, Brooke Ridley and Belinda Griffiths, were among those who were present.
At about 4:00 pm, Jaiden and Bolte went to the Crown Casino.
At about 5:11 pm, Bolte called Ferguson and told her that they had left the Crown Casino and gone to Bartronica, which is a bar in Flinders Lane.
At about 5:45 pm, the baby shower finished and Ferguson, Ridley and Griffiths went into the city and met Bolte and the deceased at about 7:30 pm. They stayed there until approximately 10:15 pm when they went to the Cherry Bar, after visiting about three other bars on the way.
Griffiths struck up a conversation with you and your friend Parnell and introduced you to both her group. You told Bolte and Ridley that you were in possession of an illicit drug and offered to share it with them. The three of you went into a cubicle in the men’s toilets and, after taking some of the drug, Bolte then left the cubicle. At about 11:00 pm, a security guard found you and Ridley kissing in the cubicle, which was described as ‘making out’; and requested that you and Ridley leave the bar.
After leaving the bar, Ridley telephoned Ferguson and a short time later Ferguson, Bolte, Griffiths, Parnell and Jaiden came out of the venue and met with Ridley and you in the lane.
The group walked out of AC/DC Lane turning left into Flinders Lane and then right into Russell Street. You manoeuvred Ridley into the entrance recess of the Chanel store where you and Ridley kissed for nearly two minutes, while the others waited on the footpath beside.
Ridley then pushed you away and walked out of the entrance recess. Jaiden’s group decided to move on from you and Parnell. Ridley said goodbye to you and then you shook Bolte’s hand. You then offered to shake Jaiden’s hand but he ignored you and moved away. You moved towards Jaiden, insisting that he shake your hand and you escalated the situation by saying ‘Shake me hand cunt’ and ‘Shake my hand, I’m not a dog’. Jaiden then shook the your hand, according to Ferguson, ‘a bit aggressively’.
At this point, Ferguson described the interchange between them as follows:
The two then started getting in each other’s face swearing at each other ‘fuck you, fuck off’. [You] said ‘Grab my hand like that and I’ll hit you’. [Jaiden] said ‘I’ll do whatever I want mate’.
Although, in her second statement Ferguson said that you squeezed Jaiden’s hand, rather than Jaiden squeezing your hand; I find that, on the balance of probabilities, her first statement was correct for the following reasons:
(a) The first statement was obviously made closer to the event.
(b) It is corroborated by, and consistent with, both your records of interview; and the record of interview of Parnell.
(c) It is consistent with her evidence of what occurred after the handshake; and it provides an explanation for why you then said, ‘Grab my hand like that and I’ll hit you’.
At about this time, Parnell restrained you for a few seconds by giving you a ‘bear hug’ from behind and then released you. Ridley stood between you and Jaiden and told you to ‘fuck off’. There was some pushing and movement around for about 15 seconds before you moved quickly around Ridley and punched Jaiden on his left cheek. Jaiden fell and his head struck the road.
There was a bruise on the deceased’s left cheek, but his death was the result of an unprotected fall onto the road which resulted in a fractured skull and brain injury. The evidence does not permit me to be satisfied beyond reasonable doubt that Jaiden’s failure to take protective action in the fall was the result of immediately losing consciousness; but I am satisfied on the balance of probabilities that his failure to take protective action was, at least in part, an effect of the alcohol in his system (his blood alcohol concentration was measured at 0.19%). As you ran away from your mortally injured victim, he lay on Russell Street and was unconscious when attended to by passing doctors who did their best to preserve his life until emergency services arrived. You were intercepted by police elsewhere in the city, and you initially denied any involvement in a fight, however, in your formal interview you admitted your wrongful conduct.
Jaiden never regained consciousness and, on 12 May 2017, he died.
The victim
Your victim was born on 24 July 1994. He was the eldest son of Jon and Heidi Walker and the older brother to Ethan Walker.
He left school in year 10 and undertook a year of study as an electrical apprentice before commencing work as a labourer. At the time of his death, he was working as a labourer at the Linfox Distribution Centre. He was trying to save money because he intended to return to his study as an electrical apprentice and to pursue his interest in travelling. I have had regard to the victim impact statements and other evidence to the effect that the victim was a quietly spoken, fine young man, much loved by his family, friends and workmates. The victim impact statements speak eloquently of the profound and enduring love they each had for Jaiden and the anguish they now suffer because of his death and the circumstances in which it occurred. In particular, his mother and father each described their love for their son and the pivotal role he played in their close-knit family. His brother, with whose insight I was impressed, described how much he would miss his older brother and how he had observed the terrible effect of Jaiden’s death on his parents. Other relatives and friends also described how much they loved and respected this easy going, caring, happy young man. Each of these family members and friends spoke of the grave, and in some cases debilitating, effects of Jaiden’s death on them and others around them.
There is nothing this Court can say or do that will bring back Jaiden; or make up for his loss. There is no sentence this Court could impose that would fill the deep void that his death has left in so many lives. The sentence, which I will shortly impose, must be calculated by principles of law which include the denunciation of the crime, general and specific deterrence and rehabilitation of the offender. The measure of this young man’s life may be better referenced to the love that those who knew him had for him; and his generosity in particular his advocacy for the donation of organs. His gift will result in a better life to many others who will never know him. If I might say so, that gift was also the product of the extraordinary courage of Jaiden’s parents in agreeing to these donations at the most tragic of times.
The prisoner
Richard Vincec, you were raised in the Corio area around Geelong and had one older brother, aged 29, with whom you do not have a relationship because he left the family home in his early teens and has since been caught in a cycle of drug use and related offending. You have a half-sister who is about four years younger than you.
You were expelled from Western Heights Secondary School at the start of year 9 following difficulties at school, which you attribute to your older brother’s reputation as a drug user. At about the age of 14, you moved out of home, following relationship difficulties with your stepfather, which you described to your forensic psychologist. It is fair to say, as was put by your counsel, that you have ‘grown up hard and … in very difficult circumstances’. You lived with your grandmother for three years who provided you with significant support; but, from about the age of 14 until the age of 21, you engaged in substance abuse involving alcohol, amphetamines, cocaine and ecstasy.
Between the ages of about 16 and 18, you appeared at the Geelong Children’s Court on two occasions.
On a further two occasions, you appeared at the Geelong Magistrates’ Court arising out of offences that your counsel said occurred when you were aged 18:
(a) On 18 March 2010, you were convicted and fined $1,100 on charges of intentionally damage property, throw a missile, unlawful assault and behave in a riotous manner in a public place.
(b) On 26 October 2010, you were convicted and placed on a community based order for various offences including reckless cause injury, threat to inflict serious injury and driving offences.
According to the forensic psychologist, you attribute this history to leaving home at 14 years of age and your consequent attachment to older anti-social peers and associated drug and alcohol abuse.
You met your current partner nine years ago and she has been a major stabilising influence in your life. After she became pregnant with your oldest child, you moved to Ocean Grove with her and she says that she saw a ‘dramatic change’ in you and that you became the father that she wanted you to be. After the birth of your first child (now 5) when you were 21, your second child (now aged 3) and your third child (now aged 1) followed. The evidence from a number of sources supports the proposition that you are a devoted father to your children.
The evidence also supports the fact that for the last five years you have worked very hard as the sole breadwinner to support your partner and children. During this time, you have progressed from being an inexperienced labourer to becoming a leading hand with one of Australia’s largest civil infrastructure companies. Your construction superintendent and site supervisor have each given evidence of your progression; and described you respectively as ‘one of the most loyal and hardworking people I’ve met over my career’ and ‘a great asset for his employer, his greatest achievement of his working life is taking people under his wing — usually people that have had hard upbringings and are looking for the same opportunities as he was granted’.
During these years you have also re-established the relationship with your mother and stepfather.
Your development from a troubled youth to a hardworking father with a strong sense of family has been supported by evidence from as many as seven other referees.
I accept this evidence, although your conduct on the night of the offence together with the report of the Court Integrated Services Program, demonstrate that you continued to use illegal drugs and you have acknowledged that you consumed beer each night up until the time of the offence in a quantity that you described as ‘problematic’. However, I do note that since the offence, drug screens indicate that you have complied with your bail conditions and Stepping Up Consortium has provided a positive report.
Remorse
You have written a letter to the deceased’s family in which you accept full responsibility for what you have done, saying that you wish you could ask for forgiveness but that you will never forgive yourself. You acknowledge that, as a father yourself, you can never imagine the pain you have put Jaiden’s family through. I am satisfied the letter represents a genuine expression of deeply felt remorse.
After an initial denial on your arrest, you have constantly recognised the terrible thing that you have done to Jaiden and to the Walker family in your statements to the police, to the persons who have provided references, to your mother, to your partner and to the forensic psychologist.
By 4:00 am on the morning after you punched Jaiden, after your first and second interviews with police, you attempted to contact Ridley via Facebook. In a message to her you wrote:
Sorry about your friend all I wanted is a hand shake, I’ve been charged and I explained everything so apologise for me sorry.
She responded:
I can’t apologise, because he’s fighting for his life in intensive care.
You replied:
Please how do I reach him? I didn’t mean for any of this? What’s his name I can’t believe this has happened I pray his ok.
You rang the police and the hospital every day until Jaiden’s death.
The fact of your remorse is also consistent with your particularly early plea of guilty, which is also of substantial utilitarian benefit, and which was entered well before the Director of Public Prosecutions withdrew the notice of intention to seek the statutory minimum sentence for manslaughter under s 9A of the Sentencing Act 1991.
Sentencing principles
By s 5(2) of the Sentencing Act 1991, I am required to have regard to a number of considerations.
The maximum penalty, current sentencing practices, nature and gravity of the offence and offender’s culpability
The maximum penalty for the offence of manslaughter is 20 years. However, it is a crime which, depending on its circumstances, has the broadest range of appropriate sentences;[1] and ‘throws up the greatest variety of circumstances affecting culpability’.[2]
[1]R v Papazisis and Bird (1991) 51 A Crim R 242, 245.
[2]R v Clappers [2003] VSC 462 [29] (Nettle J).
This offence arose out of an unlawful and dangerous act involving relatively young persons in a public place and conduct fuelled by drugs and alcohol. There is widespread community concern about the risk to members of the public, particularly younger members of the public, arising from violence in such circumstances. In R v Loveridge,[3] the New South Wales Court of Criminal Appeal said:
The commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence ...
General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet.[4]
[3](2014) 243 A Crim R 31.
[4]Ibid [216]-[217].
I have had regard to current sentencing practices; and have noted that there has, in recent times, been a significant increase in the range of sentences imposed for manslaughter in similar circumstances consequent on the community concern to which I already referred. The fact that a particular type of crime is prevalent may be a relevant sentencing consideration.[5]
[5]Kalala v The Queen [2017] VSCA 223 [56] (Maxwell P and Redlich JA, with whom Osborn JA agreed).
Manslaughter is a serious offence and involves the loss of human life, in this case a young man of the age of 22 years. Although what proved to be the fatal punch took place after a period of ‘argy bargy’ between you and the deceased, it was you who alone created the tension by your language and actions, when the deceased refused to shake your hand; and you who unreasonably resorted to an unnecessary and disproportionate violent response when the victim squeezed your hand during the handshake. Your role as the instigator is highlighted by the fact that it was your friend who sought by a bear hug to prevent you from overreacting; and Ridley who sought, by standing between the two of you and facing you, rather than Jaiden, to get you to leave or back down. It is to your credit that you have not sought to deny your role as the aggressor. Further, I find that you did not go out that night intending to engage in violence or intending to look for trouble; and that your decision to punch the deceased was made on the spur of the moment. Further, although the damage of single punch assaults is widely recognised in the community, a premeditated intention to do real harm to the victim is far more readily inferred if such conduct is followed by further violence. Yet, your culpability is aggravated by the fact that, after your violent act, you responded not by stopping to help your victim, but by fleeing the scene.
Victim impact and personal circumstances
The starting point in assessing the objective seriousness in any case of manslaughter is the fact that the unlawful and dangerous act[6] has resulted in the death of a human being. A just sentence must vindicate the human dignity of the victim by recognising the legitimate community interest in the denunciation and punishment of alcohol fuelled violence with its tragic consequences.[7]
[6]As a single punch causing an injury to a head or neck is deemed to be by s 4A of the Crimes Act 1958.
[7]Munda v Western Australia (2013) 249 CLR 600, 620 [55] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
As a result of your actions, a fine young man has been deprived of the rest of his adult life. His father, his mother, his brother, other relatives and his friends all attested in their victim impact statements to their overwhelming sense of loss and the profound effects that Jaiden’s death has had on them. One hopes that the intensity of the pain they feel will be reduced in the passage of time, but it will never be completely resolved.
Your Character
I referred in some detail to your previous character above and in summary I put almost no weight on your conduct during your teenage years for the following reasons:
(a)I accept that your involvement with drugs and interactions with the courts during this period were the result of the significant difficulties you encountered while you were still a child.
(b)The evidence establishes that, with the support of your partner, you were able to develop into a devoted father, a good partner and a valued employee.
However, my comments about your previous character have to be tempered by the recognition that, despite your development, you continued to be a user of illegal drugs, which were associated with the events on this night.
Mitigating factors
I am also bound to take into account the following factors which go in mitigation of the sentence to be imposed upon you:
Your plea of guilty
(a)You pleaded guilty at the first opportunity prior to a committal hearing. ‘A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount’ on sentencing.[8]
[8]R v Duncan [1998] 3 VR 208, 215, cited with approval in DPP (Cth) v Thomas [2016] VSCA 237 [65].
Remorse
(b)As indicated above, your remorse is reflected not only throughout the documents submitted by you, but also in the records of interview with the police and the final comments of the forensic psychologist, which were as follows:
Mr Vincec did not make any attempt to minimise this offence, during the assessment, he displayed empathy for the victim’s family and significant remorse for the victim something that he states he will have to live with for the rest of his life.
Prospects of rehabilitation
(c)I accept that your prospects of rehabilitation are very good; and important factors which are present and should still exist upon your release from custody include the following:
(i)a supportive partner who proposes to reunite with you as soon as you are released;
(ii) three young children, whom you are determined to support;
(iii)demonstrated history of stable employment and the availability of this employment on your release;
(iv)your compliance with bail conditions.
I have also had regard to your appreciation of the tragic consequences of your actions and the fact that, in the past, you have substantially overcome the difficulties encountered in your youth, as being indicative of your very good prospects of rehabilitation.
Personal circumstances
(d)You are a 26 year-old man who has been the sole financial provider for your family and have been a parent that has sought to give your children the advantages that were denied to you. On the basis of the character evidence submitted on your behalf, I consider that your appreciation of the hardship that your absence will inflict on your partner and your children will increase the burden of your imprisonment.[9] During those times, you may reflect upon the fact that you have deprived Jaiden Walker of his opportunity to enjoy having a family of his own and that you have deprived his parents and extended family the joy of watching him achieve life’s milestones.
[9]Markovic v The Queen (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
While I consider these are powerful mitigating factors, I cannot permit them to divert me from performing my duty, which is to impose a sentence that adequately vindicates the dignity of Jaiden’s life and reflects the importance that the law recognises in upholding the value of human life and punishing those who take it.[10]
[10]R v MD (2005) 156 A Crim R 372, 387 [65].
Sentence
It is properly conceded that the nature and gravity of your offence requires that you be sentenced to a period of imprisonment. For the reasons I have given[11], I consider that to achieve the purposes of denunciation, general deterrence and to recognise the effect on the victims of your crime a substantial term of imprisonment is required. However, for the reasons already given,[12] specific deterrence and protection of the community from you in the future are not significant considerations. I must not sentence you to a term of imprisonment any more severe than I consider necessary to achieve the purposes of sentencing.[13]
[11][38].
[12][43](c).
[13]Sentencing Act 1991 s 5(3).
Balancing all the competing considerations to which I have referred, I consider that it is necessary that you be sentenced to imprisonment for a period of 8 years.
However, taking into account that:
(a)your recognition of the tragic consequences of actions should ensure that for the benefit of your partner, your children and the whole community you may be expected to be able to control your anger and behaviour in the future;
(b) you appear to be truly remorseful; and
(c)your prospects of rehabilitation are very good, particularly if you are subjected for some time to supervision and control (as you have been during your period on bail);
I consider that it is appropriate to order that you be eligible for parole after serving not less than 5 years of that sentence. In my opinion, this is the minimum period that justice requires that you should serve in actual incarceration having regard to the circumstances of the case.
Accordingly, I sentence you to 8 years’ imprisonment and fix the period of 5 years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served is 25 days inclusive of today’s date and I direct that there be noted in the Court’s record the fact that the declaration has been made and its details.
Pursuant to s 6AAA of the Sentencing Act 1991, I state that, but for your plea of guilty, I would have sentenced you to a term of imprisonment for 11 years and set a non-parole period of 8 years.
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