The Queen v Neil Allan Baker
[2012] VSC 19
•13 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2008 1637
| THE QUEEN |
| v |
| NEIL ALLAN BAKER |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 7 December 2011 | |
DATE OF SENTENCE: | 13 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 19 | |
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CRIMINAL LAW – Sentencing – Manslaughter – Unlawful and dangerous act – Offender choked and struck victim during argument over money – Victim was frail, 76 year old man – Offender left injured victim lying on the floor of his home – Offender returned several times over following days – Offender failed to obtain assistance for victim – Victim died some days later – Offender took steps to conceal his actions – Offender an alcoholic – No history of violence – Some prospects of rehabilitation – Sentenced to 10 years’ imprisonment with non-parole period of 7 ½ years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Thomson | Solicitor for Public Prosecutions |
| For the Accused | Mr P Morrissey SC and Ms C Hollingworth | The Office of Emma Turnbull |
HER HONOUR:
Neil Allan Baker, you have pleaded guilty to the manslaughter of Brian Pearce in January 2007.
At the time of his death, Mr Pearce was a 76 year old retired butcher, who lived alone in a unit in Albert Street, Ballarat. You were a 50 year old unemployed alcoholic, living in various boarding houses. You had been friendly with Mr Pearce for several years. In the first part of 2006, he had allowed you to live in his spare room for about six months, and provided you with some financial support.
Some time between the 8th and 15th of January 2007, most likely between the 12th and the 14th, you visited Mr Pearce, intending to get money from him in return for sex. The two of you argued over money, and you assaulted Mr Pearce.
You grabbed him in a choking fashion, causing extensive bruising around the neck. You punched him to the face with at least moderate force, fracturing his right eye socket and cheekbone. You caused the fracturing of two of his ribs, with either a kick or punch. You caused at least one other blunt trauma to the head, leading to an intense haemorrhage of the entire left temporal muscle and a subdural haemorrhage overlying the left cerebral hemisphere. This last trauma could have resulted from impact to the floor. The subdural haemorrhage is the most serious of the injuries contributing to Mr Pearce’s death. These several unlawful and dangerous acts form the basis of the manslaughter charge. Mr Pearce had no offensive or defensive injuries.
Mr Pearce also had an enlarged heart, which may have been a contributing factor to his eventual death.
You left Mr Pearce lying naked, helpless and clearly seriously injured, on the floor of his unit.
Some time later, you went and spoke to your acquaintance, Robert Pinkerton, and told him you had visited Mr Pearce to get some money, lost your temper and assaulted him. You told Mr Pinkerton you believed Mr Pearce was badly injured.
A day or so later, you went and saw Mr Pinkerton again. You told him you had been back to see Mr Pearce, who was still alive but seriously injured, and had tried to give him some water.
On 16 January, Mr Pinkerton and another man, Scott Martin, spoke to you about wanting a car. You said you knew where to get one. You gave them Mr Pearce’s keys and showed them where Mr Pearce’s car was. You did this so that anybody visiting Mr Pearce’s unit would think he was not at home, because his car was not parked out the front in its usual place.
On 17 January, Mr Martin and Mr Pinkerton drove Mr Pearce’s car to Melbourne, where they eventually abandoned it. They caught the train back to Ballarat.
Some time after 4 pm on Wednesday 17 January, you went to see David Johnson, an alcohol and drug counsellor, who had counselled you for alcohol-related issues in 2006. You were heavily intoxicated when he saw you. You told Mr Johnson you had something you needed to get off your chest, and had walked past his office several times over the last few days, but had not had the nerve to go inside.
You told Mr Johnson you had killed someone several days earlier. You said you had not intended to kill the person, but had a fist fight following an argument about money. You said the death was not immediate, and the man had been lying on the floor. You said you had returned to the man over the next two to three days, and tried to give him water. You told him that you had told two men about the assault, and they had stolen the man’s car. You said you were certain the man had died about the 3rd or 4th day after the fight.
You told Mr Johnson you were very confused and had been drinking constantly. You said you wanted to contact the other two men, to tell them to go away, but Mr Johnson told you not to do so. You also expressed concern about the impact of these events on your own, elderly father.
Mr Johnson encouraged you to see a lawyer. He arranged an appointment with a local solicitor, Mike Wardell, and took you to Mr Wardell’s office, stopping on the way so you could buy a stubby of beer to drink.
Mr Wardell arranged for you to make a written statement, which you signed and he witnessed the next day, Thursday the 18th. At 6.25pm that evening, you, Mr Wardell and another solicitor went to the police station and gave a copy of your statement to Detective Canny. You were arrested and subsequently interviewed by police. Save to agree that the statement you had signed was yours, you otherwise made no comments to the police.
The written statement said you wished to report Mr Pearce’s death to the police. The statement said that on Monday 8 January 2007, Mr Pearce had indecently assaulted you “which resulted in [you] striking him several times”. The statement also said that “following the incident, Mr Pearce was still alive and able to talk and so [you] left the address.”
Police went to Mr Pearce’s unit and forced an entry through the locked front door. They found Mr Pearce dead on the floor.
Mr Pearce’s car was recovered in Melbourne. Some months later, police were able to identify Mr Pinkerton from CCTV footage relating to the car. In April 2007, Mr Pinkerton informed the police of Mr Martin’s involvement. They were both interviewed as accessories to murder, but were not charged with any offence. They made statements setting out their involvement, and what you had told them.
I am satisfied that the claim in your police statement – that you struck Mr Pearce because he had indecently assaulted you – was untrue. I am satisfied that you assaulted him because of an argument about money. Your statement to police also did not disclose that you had left Mr Pearce injured and lying on the floor, or that you were well aware that he had remained there over a number of days, apparently unable to get up.
The prosecution urged me to conclude that you deliberately lied to the police about the indecent assault, either because you did not wish to reveal past homosexual behaviour, or because you wanted to set up a possible defence of self-defence. Your counsel argued that you were so drunk when you made your written statement, that I could not be satisfied that your statement was a lie (or, if it was a lie, that it was made for either of the purposes suggested by the prosecution).
I accept Mr Johnson’s evidence that you were heavily intoxicated when he saw you on the afternoon of the 17th and took you to see Mr Wardell. But your statement was not signed until some time the following day. And by the time your solicitor took you to see the police, more than 24 hours had passed since you had seen Mr Johnson. Whilst I accept that you were generally drinking heavily during January 2007, there is simply no evidence as to what, if any, alcohol you consumed between your first visit to Mr Wardell, and when you made and delivered the statement to police.
None of the police who saw you at the Ballarat police station on the evening of the 18th made any mention in their witness statements of your being under the influence of alcohol. Detective Canny, who spoke with you (albeit briefly) on several occasions that evening, gave evidence at the plea that he did not believe you were affected by alcohol at that time. And in the audio recording of the short record of interview, which was conducted that evening, you can be heard responding to questions appropriately and not slurring your words.
However, no forensic medical officer was available to attend the station that evening, and no breath test or other sobriety test was conducted at the time.
Around 3pm on the following day, the 19th, you were examined by Dr Angela Sungaila. She formed the opinion that you were unfit to be interviewed at that time, not because you were intoxicated, but due to the effects of alcohol withdrawal.
Irrespective of whether or not you deliberately lied to the police about the indecent assault (about which I make no finding), I am satisfied that you did not tell the police all the details that you had told Mr Pinkerton and Mr Johnson. Instead, you made a statement which significantly understated your culpability for Mr Pearce’s death.
The maximum sentence for the offence of manslaughter is 20 years’ imprisonment. However, the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff, which can be applied to such cases. It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.
I accept the submission made by both the prosecutor and your counsel that this case falls somewhere within the middle of the range of seriousness for the offence of manslaughter.
Mr Pearce allowed you, his friend, into his unit with the expectation of some sort of companionship. He should have been entitled to feel safe in his own home. You assaulted him – a short, elderly, vulnerable man – because you could not get the money you wanted to buy alcohol. Your alcohol addiction may provide some explanation for your behaviour, but it does not excuse it.
Whilst it is probable that you had consumed some alcohol prior to the assault, there is simply no evidence as to how drunk you may have been at the time of the assault (or, indeed, during your subsequent visits to see Mr Pearce).
I accept that the assault was unplanned, and note that no weapon was involved. I also accept that your anxious personality may have contributed to your fleeing, in some sort of panic, after the initial assault.
However, over a number of days and separate visits, you failed to get medical help for Mr Pearce, which could well have saved his life. Even allowing for your problems with alcohol, and your anxious personality, your conduct in leaving a helpless and seriously injured old man to die, naked and alone, on the floor of his home, over a number of days, was very callous.
Furthermore, you participated in the removal of Mr Pearce’s car by Mr Pinkerton and Mr Martin, in order to help yourself avoid detection. I am not sentencing you for the theft of Mr Pearce’s car, but your actions in that regard were calculated.
Before I consider your personal circumstances, I want to say something about the impact your actions have had on others. Victim impact statements have been filed by Mr Pearce’s brother, Robert (“Bob”) Pearce, and Robert’s wife, Patricia Pearce, as well as Mr Pearce’s two nieces, Anne McKenzie and Colleen Davis. It is clear from the evidence that Mr Pearce (who was generally known as Burt or Buddy) was a friendly, kind and generous man, who is greatly missed by his family. They are also particularly upset about the circumstances surrounding Mr Pearce’s death (all of which received considerable publicity at your first trial), and about the effect his death has had on some family relationships.
I turn to consider your background and personal circumstances.
You were born in Ballarat on 30 March 1956, and lived at Mount Pleasant with your parents and siblings, until you were about 20. You have described your parents as caring and supportive, although your relationship with family members became strained after you started abusing alcohol in your mid-teens. Their disapproval of your alcohol abuse seems to have led to your estrangement from them.
You attended a local primary school, and then a technical high school until year 11. Your schooling seems to have been unremarkable, and you played school and club sport. Thereafter, you undertook an apprenticeship as a fitter and turner.
Over the years since then, you have worked in a variety of jobs, including seasonal fruit picking and irrigation work, at various places in Victoria and South Australia. You have had periods of employment and accommodation stability, as well as periods of unemployment and homelessness.
You began abusing alcohol when you were about 16, drinking beer to the point of intoxication most nights. You also engaged in binge drinking over many days.
Since then, you have regularly abused different types of alcohol, including beer, wine and methylated spirits. However, you have had a number of periods of abstinence from alcohol, sometimes for several months or even years. For example, you were abstinent for about 5 years in the late 1980s, and about 2 years between 2002 and 2004.
Over the years, you have attended AA meetings, been in a detoxification unit, and sought help from various alcohol counselling services. You have also spent several periods living at Peplow House, an emergency accommodation service.
You were abstinent again from June to November 2006, during which time you regularly attended alcohol counselling with Mr Johnson, and kept in contact with accommodation and employment service providers.
Then you began abusing alcohol again in late 2006. You had been on a 10 day “bender” in or around January 2007.
Since you were remanded in custody in April 2007, you have not had access to alcohol.
During the 1980s, you had a couple of relationships with women, both of which seem to have ended due to your alcohol abuse. With the first of those women, you had a son, who is now almost 30 years old and has no contact with you.
In custody, you have been working in industries and undertaking an information technology course. You would like to continue to improve your IT skills, with the hope of working in that field when you are released from prison.
You have remained interested in sports, and have generally kept yourself physically fit during periods of abstinence.
According to Mr Bernard Healey, a consultant clinical psychologist who prepared a report on your behalf, you are of above average intelligence, have an introverted personality, suffer from anxiety and mild paranoia, and demonstrate classic symptoms of alcoholism. Mr Healey does not suggest that your anxiety played any role in your offending.[1]
[1]Mr Healey’s evidence does not go so far as to support your counsel’s submissions about the significance he says your anxiety played in these events.
After a trial, in October 2008, you were convicted of murdering Mr Pearce. During that trial, you suggested through your counsel that, although you did assault Mr Pearce (because he had indecently assaulted you), the jury could not be satisfied that he died as a result of your actions. Rather, your counsel suggested that he may have died as a result of a subsequent assault, probably committed by Mr Pinkerton and Mr Martin. The Court of Appeal overturned your conviction, due to various inadequacies in the trial judge’s charge.
Your re-trial for murder came on for hearing before me on 28 November 2011. Shortly prior to the empanelment of the jury, you pleaded guilty to manslaughter.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a second trial. Furthermore, Mr Pearce’s family has been relieved of the trauma of a second trial.
But this is not an early plea. You persisted in maintaining your innocence until shortly before this trial was due to commence.
Mr Johnson said that when you came to his office on 17 January 2007, you were “clearly troubled” by what you had done, and wanted to get something off your chest. But he also said (quite properly) that there might have been a number of different reasons for your statements, and he could not say whether or not you were remorseful at that time.
The fact that you finally decided to come forward and tell the police about Mr Pearce’s death may demonstrate some degree of remorse, or it may be that you were motivated more by a concern to protect yourself (in case Mr Pearce’s death was discovered through some other means). The fact that you gave the police an account of what had happened, which considerably understated your culpability, causes me to have some doubts about the extent of any genuine remorse at that time.
Mr Healey’s report, prepared in December 2008 for the plea after the first trial, did not contain any indication of remorse at that time; on the contrary, he noted that you were still maintaining your innocence.
When you spoke to Mr Johnson again, on the morning of the plea before me, you told him you wanted to write to the victim’s family and apologise. You also told him you had wanted to visit Mr Pearce’s grave during the period in 2007 when you were not in custody, but that Mr Wardell had advised you not to do so.
Apart from that very limited evidence, there is little to demonstrate any real remorse on your part.
You have 7 prior convictions from 6 court appearances between March 1976 and November 2003. Most of them were for theft, or related to drunken behaviour. However, one of the convictions, in December 1979 (when you were in your early 20s) was for an assault with intent to rob, for which offence you were sentenced to 12 months’ imprisonment, with a six month non-parole period. As best you can recall, on that occasion you entered a milk bar, whilst drunk, intending to steal some cigarettes; when the shopkeeper confronted you, you assaulted him in some way.
Notwithstanding your decades of alcohol abuse, and the 1979 conviction, I accept that you do not have a history of violent behaviour.
As far as your prospects of rehabilitation are concerned, you are intelligent and have the capacity to learn. When not abusing alcohol, you have led a relatively stable life, in gainful employment, on occasion forming meaningful relationships. However, you have battled with alcohol addiction for almost four decades. You have been more successful in remaining abstinent when in gainful employment, which understandably provides you with a sense of self-worth. But you are now almost 56 years old. And by the time you are released from prison for this offence, you are likely to have more limited employment opportunities than in the past.
Unfortunately, you do not have any support from family or friends. Your parents are both dead, and your siblings ceased to have any contact with you some time before these events. There is no supportive network to assist you to remain abstinent, or find employment, once you leave prison.
Your prospects of rehabilitation, and the question of specific deterrence, are inextricably tied in with whether or not you are able to stay off alcohol when you get out of prison.
Your counsel argued that you should be given a shorter than usual non-parole period, in order to enable you to undertake counselling and other programs, and to learn to live an abstinent lifestyle, under the supervision of the Adult Parole Board.
However, I note that you have, in the past, participated in counselling and programs designed to address your alcohol abuse, and have demonstrated an ability to live an abstinent lifestyle without external supervision. But, on each occasion, you have subsequently lapsed back into alcohol abuse.
I am satisfied that there should be sufficient time for you to receive suitable counselling and support, during the more ordinary or usual non-parole period which I propose to impose. But, given your history, I am not persuaded that an extra period on parole is likely to have a significant impact on your prospects of remaining abstinent, once you are no longer under the supervision of the Adult Parole Board.
As far as general deterrence is concerned, the taking of a human life is a most serious offence. The courts not only have a duty (by imposing appropriate sentences) to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence, may cause loss of life. There is also a need for denunciation of what you did to Mr Pearce.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 10 years. I fix a period of 7 ½ years as the period you must serve before becoming eligible for parole.
I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to 12 years’ imprisonment, with a minimum non-parole period of 9 ½ years.
Further, I declare that the period to be reckoned as already served under this sentence is 1766 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
I will also make a forensic sample retention order, in terms of the draft order previously provided to me.
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