Excuse 5
‘Oops’
Adult Sambar deer are as big as cows but for Robert John Osip they might as well have been roadrunners. He had about as much success in bagging one as Wile E. Coyote had with the ever-elusive beep-beeping bird.
In 30 or 40 hunting expeditions into a forest famous for its Sambar deer, Osip failed to shoot even one of them. For over a year, Osip and his hunting mate, Brian Davey, slung their powerful game rifles over their shoulders and went huntin’ in the Yarra State Forest near Warburton, east of Melbourne. Rain or shine, the pair would traipse for five or six hours along the McDonald Track looking for Sambar. In all that time, after all that ever-alert hiking—constantly scoping the scene, tuning the ears and eyes for the slightest tell-tale sight, sound or movement of a Sambar—they had seen just one. The closest they had come to their prey was seeing one in the middle distance, calmly walking along a gully into the bush. Otherwise nuthin’. No deer-head trophies. No action. No blood sport.
Then, at about 5.30 pm on 19 February 1999, there was action and there was blood but instead of sport, instead of a trophy, 20-year-old Osip bagged a tragedy, a tragedy that would change his life.
Osip: I wandered about six or 700 metres up the track and I heard a noise like a large animal pushing its way through the scrub. I walked to the edge of the track and looked down into the bush but was unable to see anything. This area is where there are a lot of deer. I stopped and listened and I heard the noise again. I looked in the direction of the noise and saw movement in the trees and I put my gun up to my shoulder and pulled the trigger. I heard what sounded like something heavy falling over and groaning…and I realised I had shot a person. I then ran down to the fire track and looked up and saw a person [lying] on their back on some logs. I ran down to this person and it was a man. There was a dog that run away from me.
…
I thought it was a deer…
…
I heard a noise like a deer. I saw a shape and put my gun up, identified it and pulled the trigger. Then I heard a groan sound like, ‘Oh shit’, and realised I had hit someone.
In his eagerness to finally bag a Sambar, Osip had killed 20-year-old Gary Paterson. The bullet from Osip’s .270 Whitworth rifle hit Mr Paterson’s right shoulder. It seared a deadly path through his ribs, lung and liver. There was no exit wound because the bullet burst open as it entered Mr Paterson’s body. Osip’s powerful rifle could fire a bullet 3650 metres, but Mr Paterson had blocked its path after just 10 metres.
A quietly-spoken nature-lover, Mr Paterson was out walking his black and white labrador-cross about two kilometres from his home when Osip’s deadly bullet rammed into his shoulder. Even his red and white jacket—colours favoured by hunters to make sure other hunters see them—had not stopped him being mistaken for a deer.
Osip, of Wyuna Walk, Mooroolbark, in Melbourne’s leafy outer-east, told his Supreme Court manslaughter trial, that when he fired that fatal shot he had been convinced he was shooting at a deer.
Osip: I heard a noise coming from my left-hand side, down in the scrub. I walked over to investigate the noise and I didn’t see anything at that time. I was about to walk away when I heard the noise again. I looked back down in the direction of the noise.
…
I saw the shape of the lower neck of a deer and the upper shoulders of that deer.
…
It was very dark brown, almost black in amongst the trees.
Barrister: Did you see any red and white jacket.
Osip: No I did not.
Barrister: Did you see any man?
Osip: No I did not.
Barrister: How sure were you that you were looking at a deer?
Osip: One hundred per cent sure.
Barrister: What did you do?
Osip: I raised the rifle to my shoulder, sighted it to the target, identified it as a deer and pulled the trigger.
…
I then heard the sound of something heavy falling on the ground and then I heard someone say something.
Barrister: What did you hear?
Osip: I can’t remember what was said but it was in the context of, ‘Oh shit’ or ‘I’ve been shot’.
…
I then looked at my friend Brian Davey who was further up the track. I said to him, ‘I’ve shot someone’. He looked at me as though, ‘Don’t be joking’. I said to him again, ‘I’ve shot someone’. And he said to race down to have a look. I then ran to him.
I ran past him [Davey] and passed him my firearm and I went round the trees, down the grass embankment and looked up the hill.
…
I saw the top of the head of a person facing down the hill with his legs pointing up the hill.
I raced up to him and saw that he was breathing still. I checked his pulse and turned him over.
Then me and Brian then tried to lift him up the hill…We just couldn’t get him up the hill; he was too heavy and too droopy…Brian suggested, ‘I have got a rope in my car’.
I ran down to the car, grabbed the rope and ran back…to where Brian and the man were. I put the rope around his arm and the front of him.
Brian went up the hill with the end of the rope. I stayed down with the man so the rope did not snag, rip his face, to keep the knot away and I lifted him up over the snags and we dragged him up the hill.
Barrister: What happened when you got him to the car?
Osip: There was no pulse. I then hit him in the chest and checked his pulse again and there was a faint pulse. By that time Brian had cleared up the back of the car and we placed him into the back…and drove to Warburton Hospital.
Under cross-examination by prosecutor Bill Morgan-Payler, QC, Osip agreed that most weekends and sometimes during the week for over a year he and Mr Davey tried to shoot a Sambar deer without any success. He agreed that the Sambar deer was known as the most difficult deer to hunt.
Mr Morgan-Payler: You were very toey to bag a trophy, yep?
Osip: You could say I was eager to shoot a deer.
Osip also agreed that some months before he killed Mr Paterson, a local had warned him and Mr Davey not to shoot until they were well along the track, away from houses. He said he would not have been surprised to find people out walking their dogs in the area where he fired his fatal shot.
Osip also said he knew the deerhunters’ fourth safety rule. In bold capital letters this rule is set out in the Victorian Hunting Guide, which is sent out each year to every licensed hunter in the state.
IDENTIFY YOUR TARGET AND WHAT IS BEHIND IT.
Make sure of your target before firing. It is not good enough to just think that what you see is your target. REMEMBER: DO NOT FIRE AT MOVEMENT ONLY. DO NOT FIRE AT COLOUR ONLY. DO NOT FIRE AT SOUND ONLY. DO NOT FIRE AT SHAPE ONLY. Your target must be positively identified before firing; if in doubt DON’T SHOOT. In the early morning or late evening, it is not easy to see clearly. Be sure the object you are aiming at is clearly identified and that it is in full view before you shoot.
Osip, however, refused to admit that he had failed to follow this rule even though his actions had killed a person.
Mr Morgan-Payler: The target you aimed at, you hit?
Osip: Yes…
Mr Morgan-Payler: Mr Osip, the very one thing you did NOT do was identify your target.
Osip: I did.
Mr Morgan-Payler: Because, if you had identified that target, you would not have shot and killed it because it was a human being. Is that not correct?
Osip: I identified my target…
Mr Morgan-Payler: What, in effect, you did was make a mistake, a criminal mistake, sir. Isn’t that the case?
Osip: No.
The issue for the jurors was whether Osip had just been very, very unlucky or whether his negligence had been bad enough to deserve criminal punishment.
The prosecutor told them Osip’s desperation to bag a deer had driven him into making a ‘monstrous error’ by breaking one of the fundamental rules of hunting.
Mr Morgan-Payler: Ladies and Gentlemen of the jury, one thing is certain: the accused in this case did not identify his target. If he had, he would be in front of you on a much more serious charge.
That he thought that was a deer down there in the bush is clear but he was negligent to a gross degree in not spending the time…to see that what he first thought was a deer was, in fact, Gary Paterson.
…
Imagine his anticipation, imagine his high degree of preparedness—‘When am I going to bag my trophy?’ ‘When will I have the head on the wall or the proud photograph with the dead animal?’ ‘When will I simply be able to say to my friends and companions I got a big deer yesterday, let me tell you about it.’
He saw a brown blob and that’s what he shot at. You cannot allow of such a terrible lack of care.
The defence barrister, Simon Gillespie-Jones, stressed that Osip’s mistake had been reasonable.
Mr Gillespie-Jones: Obviously Robert Osip made a mistake…[but] would a reasonable person think it likely that there would be a person there in that undergrowth?
All this man has done…every one of us has done. He has made a mistake. We have all made mistakes.
But, after deliberating for less than three hours, the jurors decided that Osip had not just made a tragic mistake, they decided he had committed manslaughter.
A couple of days later, Mr Gillespie-Jones asked Justice John Coldrey not to jail his freshly convicted client even though he had been found guilty of one of the worst crimes. He said Osip was a well-regarded, hard-working young man who was just a few months off finishing his four-year carpentry apprenticeship. He had been a keen cub and scout, had played hockey for 11 years, did not drink alcohol or smoke cigarettes, and loved fly-fishing.
Osip’s father told the judge his eldest son had been deeply disturbed by what he had done. He had not even picked up a gun since. The killer’s boss said that since the shooting Osip had even struggled to pick up a nail gun.
Mr Thomas Steiniger: He used a power saw and everything else like that but the nail gun took him probably two days before he could physically even pick it up.
Mr Gillespie-Jones also pointed out that after firing the lethal shot, Osip had ‘done everything save the impossible’ to try to save Mr Paterson’s life.
The prosecution had fought hard to get Osip found guilty of manslaughter, but it surprised most observers by agreeing with the defence that it was not necessary to jail Osip. In manslaughter cases, the prosecution almost always pushes for the accused to be jailed.
Yes, he had killed a man out walking his dog. Yes, a jury had found he had been criminally negligent in firing a high-powered gun without properly identifying his target. Mr Morgan-Payler, however, said Osip’s remorse, his efforts to save Mr Paterson’s life, his clean record and excellent character references justified fully suspending his jail sentence.
In sentencing Osip, Justice Coldrey rejected his claim that he only fired when he thought he saw the lower neck and upper shoulders of a deer.
Justice Coldrey: In my view, your evidence to that effect during the trial was a reconstruction or rationalisation of events. I am prepared to accept that you saw an area of colour amongst the foliage but at no time did you adequately identify it as a Sambar deer. It may well be that, in your eagerness to earn the acknowledged prestige of bagging this type of deer, you temporarily abandoned the basic safety provisions…
The jury verdict is a finding by independent and impartial members of the community that your conduct in firing the rifle in those circumstances, involved such a great falling short of the standard of care which a reasonable person would have exercised, and involved such a high risk that death or serious injury would follow, that criminal punishment was merited.
…
The community is understandably concerned that persons who venture into public recreational areas of bushland armed with high-powered rifles, strictly observe safety precautions.
The courts must pass sentences which deter those who may be minded to discharge lethal weapons in disregard of those standards. This is not only in the interests of the general public but also important if sporting shooters are to continue to have access to our public spaces.
The judge, however, said there was much in Osip’s favour.
Justice Coldrey: I accept that you feel very great remorse at what has occurred…Given your panic-stricken state, I am satisfied that you endeavoured to assist Mr Paterson to the best of your ability.
…
Apart from this incident, you have led a blameless life. You have been industrious in the workplace and have participated in worthwhile social and sporting organisations and, consequently, your prospects for rehabilitation are excellent.
The judge also said he had taken into account Osip’s youth and accepted that it was unlikely he would offend again.
We reporters, while furiously scribbling down Justice Coldrey’s sentencing remarks, were half-thinking about how our photographers were going to get a shot of the ‘killer deerhunter’ as he walked out the court. Which of the court’s exits would he be likely to use? In the dock, Osip would have been trying his best to look contrite while inside celebrating the imminent end to his trauma.
But in two sentences—greeted with tears and gasps of shock from Osip’s supporters and smiles and gripping of hands from Mr Paterson’s friend and supporters—the judge changed all that.
Justice Coldrey: Mr Morgan-Payler, on behalf of the Crown, submitted while the offence itself, with the loss of life, is a serious one warranting a sentence of imprisonment, the circumstances surrounding its commission and, in particular, your personal history enabled the sentence to be wholly suspended. Regrettably, I cannot accede to that submission. This is a case which calls for an immediate custodial sentence, however, I will be as merciful as possible.
So much for the rough rule of thumb that judges pick a midpoint between the prosecution and the defence.
Justice Coldrey: This is a truly sad case and I am conscious of the anguish that has been caused both to your family and, in particular, to the family of Gary Paterson. Nothing this court can do, of course, can bring Gary Paterson back.
Because of your age and exceptional prospects of rehabilitation I will in this instance impose an unusually low non-parole period.
Robert Osip you are to be imprisoned for four years. I fix a period of one year before you are eligible for parole.
The weeping which followed this sentence—despite it being a light punishment for manslaughter—seemed to indicate that the Osip family had really expected him to walk free.
Outside the court, however, Mr Paterson’s uncle, Brian Stevenson, slammed the sentence as a ‘bloody disgrace’.
Mr Stevenson: Gary was an animal lover, a conservationist. The guy was an exceptional human being, and he’s not here because of what that bastard did.
He was a quietly spoken sort of guy who loved walking around the woods of Warburton with his dog. That dog was his best friend. He didn’t deserve this.
Six months later, Victoria’s Court of Appeal rejected a call to overturn Osip’s conviction. Osip’s new defence team argued that there had been a miscarriage of justice because the jury should have been told to find Osip not guilty if the prosecution failed to exclude, as a reasonable possibility, that when he fired his gun Osip honestly and reasonably believed he was firing at a deer, even if he was mistaken. Osip’s defence team tried to argue this was different to the argument that a hypothetical reasonable man would not have thought it likely a person would have been where Mr Paterson was. The court disagreed.
Justice Batt: The jury could not have been satisfied beyond a reasonable doubt that, in…[Justice Coldrey’s] words, the act…of the accused was…performed by him ‘in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised’, without concluding that any belief which…[Osip] had that the target at which he aimed was a deer was not a reasonable belief.
The appeal judge said you could not claim you made a reasonable mistake if you admitted being negligent.
Justice Batt: It seems to me inescapable the ‘defence’ of an honest and reasonable mistake entails the absence of negligence and that the presence of negligence denies the reasonableness of any relevant mistake. The two cannot co-exist.
The three appeal judges also refused to cut the sentence although they found it ‘somewhat severe’. They rejected the defence claim that because this was the first known case in Australia of a hunter mistakenly killing a person, there was no need for Justice Coldrey to use the sentence to deter others.
Justice Batt: It may well be that similar offences are rare in Australia (although not in North America) but that does not mean his Honour [Justice Coldrey] erred in giving effect to the sentencing purpose of general deterrence. The case was an appropriate vehicle for giving a timely warning to shooters…It must not be overlooked that as a result of what the jury found to be gross negligence, a man’s life was ended.
In her terrified last moments, 80-year-old May Bennett desperately tried to dodge an out-of-control thousand-kilogram van. As the yellow van bore down on her, the elderly woman ran as fast as she could across a road to a nearby park. Even there she wasn’t safe. The vehicle-turned-missile ramped the kerb and careered relentlessly toward its prey. It hit her. It ploughed into her. It pinned her against a tree. Four days later Ms Bennett died.
Sprinting behind his runaway van, yelling, ‘Look out!’, ‘Oh no!’ and ‘Get out of the way! Get out of the way!’ was Adrian Leigh Southwell. All his desperate warnings were in vain. The 22-year-old could do nothing but watch as his van fatally wounded Ms Bennett. With the old lady pinned against the tree, while horrified witnesses called an ambulance and police, Southwell sprinted home. He alerted his father and they raced back in a four-wheel-drive car with a tow rope. They were about to try to pull the rogue van off Ms Bennett but stopped when told an ambulance dispatcher advised against it. Best let the experts move the stricken woman.
So Southwell sat in the gutter—just metres from the mortally injured woman—inconsolable, in shock, helpless.
A frustrating afternoon battling his yellow bomb had ended in a tragedy he would have to live with for the rest of his life.
•••
About 5 pm on 12 October 2000, Southwell was just 50 metres from his home, in Dalmor Avenue in the outer-eastern Melbourne suburb of Mitcham, when his van conked out. It was out of petrol. Frustrated and cursing, Southwell left the van on a flat part of the road and walked home. His father offered to help tow the van home but Southwell refused. He thought it just needed petrol. He borrowed his father’s car and $5, drove to a nearby petrol station and put $5 worth of petrol in a jerry can. He poured this into his van and tried to start it. Again the beast refused to budge. The battery was flat. It’s not hard to imagine the cursing that stubbornly immoveable van would have copped.
As Southwell battled to coax some movement from his van, one of his favourite neighbours—an old lady who was always on the look out for ways of helping others—asked if there was anything she could do. Southwell thanked Ms Bennett for her concern but told her everything would be all right. Ms Bennett continued walking her dog down the road to the park at the bottom and Southwell continued fighting his van. He pushed it up a slight hill and tried a roll start. Still nothing. Southwell wasn’t prepared to give up. He wasn’t content just to swear at it or even give his van a Basil Fawlty-style ‘darn good thrashing’. Refusing to admit defeat, he borrowed his father’s four-wheel-drive car.
Then he made his fateful decision. He decided to use a three-strand, six-millimetre polypropylene rope as a tow rope. New, it was designed to tow things weighing up to 660 kilograms. By the time Southwell used it, the rope, with a diameter of the average little finger, had a breaking strain of just 540 kilograms. The van it was being asked to pull up a hill weighed 1080 kilograms.
At first, the little rope pulled above its weight. It slowly hauled the driverless van up the hill, a hill with a children’s park at its base. After about 30 metres, Southwell stopped and reversed a little to make one last bid for the summit, for home. When he started towing again, the slightly loosened rope tautened and the inevitable happened. It snapped.
By the time the free-wheeling van slammed into Ms Bennett, it was doing about 30 kilometres per hour.
Southwell told police he had been ‘totally stupid’ not to have someone in the van’s driver’s seat. He also conceded he had not used a strong enough rope.
Southwell: It’s a fairly sturdy rope but it’s not suitable to tow a car…It’s not strong and sturdy enough.
He told police that what he had done—trying to tow a driverless van up a steep hill with an unsuitable rope when people were walking and children were playing in a park at the hill’s base—had been ‘irresponsibly stupid’.
Over the next few months, the young man was haunted by the death of the nice old lady he had regularly talked to, the old lady who had so futilely tried to dodge his van as it honed in on her like a tracer bullet. He woke up crying uncontrollably from nightmares. Remembering Ms Bennett’s love of gardening, Southwell and his girlfriend planted a melaleuca tree for her in the park. They also put flowers on her grave.
Nine months after Ms Bennett died, Southwell had more problems than just his nightmares. He was arrested and charged with manslaughter. Another 15 months later, Southwell’s Supreme Court trial started.
The prosecution said that by his own admissions, Southwell was guilty of criminal negligence manslaughter.
The defence pointed out that despite its technical breaking point, Southwell had towed his van twice before with that rope and had no reason to believe he couldn’t do so again. Southwell’s defence argued Ms Bennett’s death had been just a ‘tragic, freakish accident’.
After deliberating for just four hours, the jury thought otherwise and declared Southwell guilty of manslaughter. Upon hearing the verdict, Southwell’s eyes brimmed with tears. He looked up briefly at the court ceiling and then slightly bowed his head.
The prosecution called for Southwell to be jailed to deter others from similarly stupid acts. The defence called for him to get a wholly suspended jail term. That would mean he would walk free, but have a jail sentence hanging over his head to deter him from breaking the law again.
At Southwell’s pre-sentence plea-hearing, Ms Bennett’s family showed what Justice John Coldrey called ‘remarkable compassion’. Her nephew Bruce Bennett told the court even though Southwell had been ‘extremely stupid and thoughtless’, it was the unanimous desire of the family that his sentence ‘not be crushing’.
Mr Bennett: We would not like the legacy of May’s death to be the derailing of this young man’s future.
He said his aunt, who had run a hardware shop in Brunswick before retiring 16 years before she died, had been an ‘exceptionally giving person’.
Mr Bennett: She was extremely hard-working and self-reliant all her life. She almost never asked for help but was always going out of her way to do things for her extended family and others that she had become friendly with. She would refuse herself many of the most common of creature comforts whilst at the same time going out of her way to shower others with luxury.
In sentencing Southwell, Justice Coldrey said he had been lulled into a false sense of security after using the rope a couple of times to tow his van.
Justice Coldrey: It would appear, however, that as your confidence strengthened, the rope weakened.
In retrospect you described what you had done as ‘irresponsibly stupid’. That assessment is undoubtedly correct.
The judge noted that Southwell was an enthusiastic worker in his job as a concreter and had been well-regarded as a backhoe operator. He said he had no doubt Southwell’s remorse was deep and genuine.
Justice Coldrey: You have…suffered significant mental punishment for your actions.
…
I have concluded that this is a case where justice may be tempered with mercy.
Then the judge passed a very unusual sentence for somebody guilty of manslaughter. It was a sentence most often handed down by magistrates and County Court judges in cases of theft or assault. It was a sentence which evoked obvious relief in the man in the dock.
Justice Coldrey: Mr Southwell, if you agree, I propose to release you on a Community Based Order for the maximum permitted period of two years…I order that you perform the maximum allowable amount of 500 hours of unpaid community work.
The judge also cancelled Southwell’s driving licence for two years.
Justice Coldrey: Mr Southwell, you have been given a chance to make something out of your life and at the same time make a positive contribution to the community in which you live. I hope you will avail yourself of both those opportunities.
Southwell: Yes, Your Honour.
Outside the court, Southwell said he was ‘very, very remorseful for what’s happened. Very, very sorry’.
Southwell: I have definitely learnt my lesson. For sure I will not ever be so reckless and careless.
It’s affected my whole life forever. There’s not a day goes by that it doesn’t enter my head.
Also outside the court, the policeman who arrested Southwell, Senior Constable Greg Dean, said he had not been able to find a similar case in Australia. He said Southwell’s biggest act of criminal stupidity had been not having someone sitting in the towed car.
Sen Const Dean: We wouldn’t be here today if there had been someone in that vehicle when that rope snapped.