//
[2023] VSC 483
General information, not legal advice.
Supreme Court of Victoria
2023-08-15
Jane Dixon J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Manslaughter - Plea of Guilty after trial commenced - Relevant prior criminal history - Harsh and restrictive conditions of confinement on remand - Fifth Verdins principle - Bugmy considerations - Sentenced to 8 years and 6 months' imprisonment, with a non‑parole period of 6 years - Sentencing Act 1991, ss 5, 5(2H) and 6AAA.
2 The offence concerned the killing of Zane Meyer, which occurred between 11 May 2020 and 13 May 2020.[3] Zane Meyer (whom I will refer to as Zane) was 26 years of age at the time of his death.
6 You were initially charged with murder,[6] but following seven days of trial,[7] including cross-examination touching on the reliability of NA and JK, the Crown accepted a plea of guilty to the lesser charge of manslaughter.[8] You were immediately arraigned on that charge on 5 May 2022 and pleaded guilty.[9] You had offered to plead guilty to manslaughter in March 2021 so I will treat your plea offer as having been made at an early stage.
7 The factual basis for your offending was expounded orally by Mr Rochford at the commencement of your plea hearing.[10]
8 It is useful to refer to some background facts that set the scene for how you came to be in the presence of Zane at the Punt Hill Apartments on 12 May 2020. They also show that you were not a central player in the events that preceded your attendance there.[11] I will not recount matters touching on your role that were not alleged by the Crown in the opening to your plea.[12]
(a) Zane and his close friend Tom resided in a bungalow behind a unit in Oakleigh South ('the Oakleigh property'). WH and RH ('the H brothers'), who are brothers, lived in the unit at the front. Zane and Tom knew NA through Lisa M. The H brothers, along with Tom and Zane, were all involved in regular drug activity. Tom was referred to as the 'Australia Post Guy' because he worked at Australia Post and it was believed he could facilitate the movement of contraband.
(b) Due to her connection with Tom, NA had made it known that she could get drugs and firearms into the country with his help. In March 2020, NA and Tom met with a man named Con to discuss international tracking of postal items and drugs. For his contribution, Tom was given drugs for personal use for three to four months for himself and Zane.
(c) At some stage during April 2020, NA discussed with Tom that between $20,000 and $50,000 was owed to Con and that she intended to collect it.
(d) In mid-April 2020, JK rented an apartment at 'The Chen', a hotel in Box Hill. NA stayed there with JK for about a week.
(e) On 24 April 2020, you were released from custody and met NA at The Chen.
(f) In early May 2020, Con was arrested for drug trafficking, and NA spoke with Tom and a man named 'Mooks' about the need to collect debts. In a subsequent conversation, NA told Tom and Zane that they owed $130,000 for their methamphetamine debt and needed to 'pay up'.
(g) On 4 May 2020, Zane picked up a package on behalf of Tom which was said to contain approximately $30,000 in cash. On the same day, an associate of NA saw a Facebook image of Tom with a wad of $20,000 to $30,000 in cash.[13]
(h) On 8 May 2020, JK booked into an apartment in the Punt Hill Apartments in Oakleigh.
(i) On the same day, Zane was with RH in the front unit of the Oakleigh property. NA went to the property with others and drove off with Zane in RH's Volkswagen Golf.
(j) The last time Zane's father, Mr Meyer, was able to speak to him was on 8 May 2020 at 5pm Perth time. Zane expressed concern about his circumstances, but also appeared vague. Towards the end of the conversation Mr Meyer overheard a crashing sound and Zane said, 'What did I do wrong?' before the phone went dead.
(k) On 9 May 2020, Tom contacted NA inquiring about Zane.
(l) On 11 May, RH noticed that the bungalow at the rear of the Oakleigh address had been ransacked.[14]
(m) Over 9, 10 and 11 May 2020, while JK was staying at the Punt Hill Apartments, NA visited and used drugs with him.
(n) On 11 May, NA left the Punt Hill Apartments and went to where Zane was in the CBD. Zane was in the company of associates of NA. NA allowed Zane to use her phone and he spoke to his mother. NA then took Zane with her in an Uber to the Punt Hill Apartments and introduced him to JK. JK noticed that Zane had injuries to his face and appeared not to have showered. Zane had no possessions with him. While Zane was showering, NA told JK that Zane had $10,000 and that he would be staying there while she looked for the money.
(o) Zane showered and was given some clothes by JK and he briefly left the apartment with NA to get some food.[15] NA returned to the apartment with Zane and then left Zane with JK while she went off for a period of time. Zane told JK that he was being bashed because NA and others thought he had money. According to JK, Zane was free to leave the Punt Hill Apartments at that point in time.
9 The above narrative sets out NA's involvement with Tom, Con and others in drug related activity and explains why NA was particularly focused on applying pressure to Zane to find out the locations of Tom and the money she was seeking. This background brings the narrative to the point where it is not in dispute that NA asked you to come to the Punt Hill Apartments leading to your arrival there around midnight on the night of the 11 May 2020.
10 CCTV footage from the apartment complex shows you and NA sitting on the couch in the foyer of the Punt Hill Apartments for a short time before the pair of you went up to Apartment 101, which was JK's apartment, at 12.04am on 12 May 2020.
11 When you entered Apartment 101, you approached Zane briefly before going off into one of the bedrooms with NA.
12 JK could hear you and NA talking in the bedroom, although he could not hear what you were saying. JK went to bed around 3am. Between 6.30 and 7am, you and NA woke up. NA received a message on her phone from a person known as Ollie containing a screenshot of a message sent to Zane's email by Tom. The message apparently said 'Where were you? You weren't at the rendezvous point?'
13 It is contended by you, and not disputed by the Crown, that the following sequence of events occurred: NA reacted to the message from Ollie by yelling and screaming at you. You replied, 'What's wrong?' and NA threw her phone at you, striking you on the head. You grabbed her phone and read the message. NA said '[t]he fucking dog, I'll show him', and you replied 'whatever' and went back to sleep. A short time later, NA came into the bedroom to wake you and told you to come and help her. You went out to the lounge room with NA, and she stood over Zane asking him questions about Tom and about the message concerning Zane meeting him. NA urged you 'to do something'. It was at that point that you stabbed Zane multiple times with a knife, causing his death.
14 The Crown accepts that your actions were not done with the intent required for murder. It is accepted by the Crown that NA was standing nearby and was present at the time of the stabbing. The case against her was put on the basis that she was involved in the commission of the offence of manslaughter by encouraging and assisting your actions.
15 JK woke up to screams from the lounge room and locked himself into his room. After a while, NA told JK he could come out, as Zane was dead. JK began packing his things. When he came out of his room, he saw you and NA lying on the bed. The three of you discussed disposing of Zane's body.
16 NA went to an address in Mount Waverley to a person that she knows as Debra, and told Debra she was in trouble and needed money. She was given $200.
17 NA contacted her ex-husband,[16] who then arrived at the Punt Hill Apartments in a car, at NA's request. Items were purchased by the three of you to clean up the apartment. JK bought hydroperoxide from a chemist to help remove blood from the carpet, and other items were picked up from the supermarket. NA paid cash to reception in the apartment building for an extra night's accommodation. NA, JK and you returned to Room 101 and can be seen on CCTV footage carrying a handbag and a brownish-coloured bag. Your group also obtained a tarpaulin and cleaning products.
18 The body of the deceased was wrapped in the tarpaulin. JK went for a walk at one point and NA phoned him and told him to get more supplies from Bunnings. JK had no money so he stole tape, gloves and black plastic. He returned to the apartments at 3.09pm. In Room 101, there was a pile of bloody clothes, including clothing that JK had given to Zane. You were seen to be over the top of the body which had been wrapped in a blanket that was taped in the tarpaulin. Zane's body was placed upright in a linen cupboard.
19 At about 6.05pm, NA, JK and you took a taxi from the Punt Hill Apartments to the Mount Waverley address, aiming to source a car. At about 6.30pm, NA's ex‑husband picked up NA, JK and you from the address in Highclere Avenue and drove to a shopping centre. JK made some purchases and all of you were then driven back to the Punt Hill Apartments where attempts were made to enter the open fire door while carrying bags.[17]
20 At 7.31pm the three of you can be seen on the CCTV footage walking and carrying multiple packs and bags. NA is seen using a phone and then accessing the foyer, while you and JK are visible standing at the fire exit door. NA is seen letting you and JK in through the fire door. More cleaning took place along with more discussions about dealing with Zane's body.
21 Then, in the early hours of the morning on 13 May, a car was brought into the parking area outside. At 2.29am, the CCTV footage captures JK entering the foyer and going up in the lift. The vehicle he obtained was a white Kia Rio.[18] JK reversed the car into a parking space near the fire exit door. The back seat was laid down flat. You carried Zane's body over your shoulder and put his body in the rear of the car. CCTV footage shows the vehicle reversing. Both you and JK were in that car.
22 You drove with JK out past Mount Waverley, then down a dirt road where you stopped. You and JK carried Zane's body and threw his body over a fence into a ditch where it was hidden from view, before driving back to the Punt Hill Apartments.
23 All three of the group continued cleaning up Room 101. This included carrying the bloodied items in bags and putting them in the back of the Kia Rio. This can be seen on CCTV footage. You then approached reception. At 11.46am, the three of you left the building by car; NA was driving, you were in the front passenger seat, and JK was in the rear passenger seat. You drove back to NA's house in Camms Road. A fire was lit in the backyard, and the bloodied items from Room 101 were burned on the concrete in the backyard.[19] JK washed the ashes into the drain.
24 Zane's body was located by Victoria Police on 17 June 2020, near 260 Glenfield Road in Lysterfield.[20]
25 A post-mortem was conducted by Dr Melanie Archer on 18 June 2020. She identified stab wounds to the right neck, and five penetrating stab wounds to the chest (which went through the ribs) with surrounding bruising and associated injury to the heart and lungs.[21] There was significant blood loss. Dr Archer concluded that the cause of death was multiple stab wounds; causing injuries to the heart and lung that were 'unsurvivable'.
26 The Crown submitted that your offence is at the 'upper-end' of objective gravity for manslaughter offences. The aspects of your offending that increased its objective gravity, as highlighted by the Crown, included the use of a weapon; the infliction of multiple injuries and degree of violence the assault entailed;[22] and the post-offence conduct relating to the manner in which Zane's body was disposed of.
27 Mr Edney disputed the Crown's characterisation of the objective gravity of your offending, and highlighted the circumstances surrounding the incident, including your lesser involvement and interest in the events leading up to the assault on Zane, as well as the way in which you had been woken up by NA and immediately drawn into incident.
28 I accept the Crown's submissions about aspects of your offending that increase the seriousness of your offence. On the other hand, I acknowledge that NA and others were more involved in the matters that led to Zane being taken to the Punt Hill Apartments, and that NA's actions and reactions to information about Zane influenced your actions when you attacked Zane. This is not to downplay the gravity of your actions which, on any view, were objectively grave.
29 I have received and taken into account the victim impact statements provided by Zane's family members.[23]
30 Following Zane's death, his family were devastated to learn about how he was killed. Zane's parents described the distress they felt while waiting for information after Zane went missing and their profound grief upon learning that Zane was the victim of a homicide.
31 Zane's mother explained that she has been living a nightmare since Zane first went missing, and will continue to do so for the rest of her life. As the legal process has continued through the courts, she has been troubled by flashbacks and distressing triggers that continually haunt her. Her world is shattered and still in pieces, and her heart is broken from losing her only son.
32 Zane's father found it an impossible task to explain in his victim impact statement how his life has been affected by what was done to his son. He has fond memories of Zane, and feels his son was out of his depth when he ended up in Melbourne, mixing in the world he was in. Zane's father feels he is undergoing a life sentence as a result of what was done to his son.
33 Zane's sister said she has no words to truly describe how the death of her brother affected her. She has been seeing a counsellor since July 2021. She feels unable to forgive those responsible for taking Zane's life.
34 Regarding your personal circumstances, you are currently aged 33 and were aged 30 at the time of offending. You have prior convictions in Queensland and Victoria which are admitted. You endured a dysfunctional early life marred by family violence and drug and alcohol abuse.
35 Your personal background has been gleaned from information provided by your counsel Mr Edney and from previous psychological or psychiatric assessments of you. I received reports that were tendered before Judge Dean in the County Court in 2014, in advance of sentencing for a number of offences committed in 2013. Those reports included the report of Professor Paul Mullen, forensic psychiatrist,[24] and the report of Carla Lechner, clinical and forensic psychologist.[25] I also received the sentencing remarks of Judge Dean.[26]
37 A number of other documents were tendered on your behalf that are relevant to your custodial history, with particular focus on the harsh conditions of confinement you have experienced in recent years.[29] Those documents include records from Ravenhall Correctional Centre[30] and a sentence and remand report relating to you.[31] The Court also received a testimonial signed by your mother and step-father;[32] a letter of apology prepared by you;[33] a further defence outline of submissions,[34] and supplementary sentencing submissions filed on 7 July 2023.[35]
38 You are the only child of T Harvey (nee Pearson) and R Wilson. Although you were born in Australia, during your infancy, your mother, a New Zealander, fled from your father due to his extreme violence and she returned to New Zealand with you. Your mother entered a relationship with your stepfather, Mr Harvey in New Zealand, and they then moved to Queensland during your early years. Your mother and stepfather went on to have another child, your younger brother.
39 You attended Ferny Grove Primary School and in your lower school years[36] you were diagnosed with ADHD[37] and prescribed medication for that condition. You were bullied at school because of your weight. Your stepfather did not accept that you had ADHD and considered it was used by you as an excuse. You had a poor relationship with your stepfather and there was constant conflict and regular physical abuse.
40 Your biological father is a Māori man and you have three younger half siblings on your father's side. Your mother did not re-establish any contact with your father until you were 12 years of age.
41 You were enrolled at Ferny Grove High School for years 8 and 9 but have said that you were in the worst class and did no work. These were tumultuous years for you. You ran away from home at the age of 12 because of ongoing conflict with your step‑father. Therefore, your mother arranged that you would move to Melbourne to live with your father.
42 It transpired that your father was unemployed and a chronic alcoholic and regular cannabis user. Your father's household was chaotic with no food available and no efforts made to ensure you attended school.
43 While living with your father, you began to consume alcohol and cannabis with him and you remained in that unsatisfactory environment for about 18 months. You were frequently grossly intoxicated during that period. You spent a short period of time in year 10 at Elwood Secondary School, but this was a period when you were drinking alcohol and had no stability in life.
44 After a while, your mother came to Melbourne to visit you, and upon learning of your circumstances, removed you from your father's care and placed you with an aunt who also lived in Melbourne. Your aunt was a church-going person and after a short while, the arrangement broke down and you returned to Queensland at the age of 15.
45 At the age of 16, you were the victim of an assault, namely being 'bottled' in the face. You told psychologist, Ms Lechner, that the attack resulted in trauma that led you to increase your substance abuse at that time.
46 You were subject to juvenile justice interventions in Queensland, and spent time in youth detention before the age of 18, however the exact history of this is somewhat unclear.[38] Following your release from youth detention, you had some employment in powder‑coating for a while, but ultimately lost that job when you were remanded in custody again. According to Professor Mullen's report, you were only at liberty for a brief period before being sentenced to a term of imprisonment as an adult.
47 You found it difficult to find employment as a result of periods spent in custody in Queensland but did find some work for a tree-lopping company between the ages of 18 and 21.
48 You told Professor Mullen that you had one relatively long-term relationship with a female for three years, but when that relationship broke down you responded by drinking heavily. You told Ms Lechner that the three year relationship was with 'Chantal' and that you had broken up with her two years earlier 'because of the way I was'. That would suggest that the relationship ended in 2011. You reported that when you were in that relationship, your abuse of alcohol was moderate but you succumbed to heavy drinking after breaking up with Chantal, and lost your job as a tree‑lopper. That seems to have marked the beginning of a downward spiral for you.
49 Your Queensland criminal history records numerous offences committed between 2006 and 2012, many of which appear to be minor and for which you received fines. However, you also received a number of terms of imprisonment, and it appears that between 2008 and 2012 you spent lengthy periods of your early adult life in custody.
50 On 3 June 2008, when you were 18 years old you were sentenced in the Brisbane District Court to 420 days' imprisonment for property offences committed on 6 February 2007[39] and 10 April 2007,[40] when you were still 17 years old. The term of imprisonment was backdated to 10 April 2007, and it appears you were released from custody on the day you were sentenced.
51 On 23 January 2009, when you were 19, you were imprisoned for a total of 12 months for common assault and one charge of stealing.[41] On 16 March 2010, you were sentenced to probation for two years for a trespass-related offence.[42] Then, on 13 July 2011 you were sentenced to probation for two years for two charges of breaching an order.[43] On 23 December 2011, following an apparent breach of both orders, at the age of 22, you were re-sentenced in the Brisbane District Court to a total effective sentence of 12 months' imprisonment.[44]
54 You told Ms Lechner that while in custody in Queensland you were 'playing up in jail[sic] ... no medication, hard to control myself' and that, as a consequence, you ended up in management units. You described being placed in solitary confinement for seven months with nothing in your cell except for a radio. You said you were subject to 22 hour lockdowns and that when you got out, you could not talk to anyone, had no confidence and reacted by drinking heavily.
55 You were released on parole in Queensland on 12 March 2013 and came down to Melbourne on 15 March 2013, as a result of being told by your cousin that your father had been bashed. You said you visited your father twice, and seeing his condition triggered feelings of anger and frustration about what had been done to him. This led to you drinking and doing drugs of a kind that you did not normally do. You told Ms Lechner that, at the time, you were drinking non-stop every day. You said that you were doing drugs to 'side-track' your mind.
56 When you were assessed by Professor Mullen in 2014, you told him that 'prison has affected me a lot, I've just become so used to jail [sic] life, I can manage there' and that outside of prison, you found it difficult to cope because 'you don't really grow up in prison, you just stay the same and when you come out you're no more mature than when you went in.'
57 You told Professor Mullen that when you first arrived in Melbourne from Queensland, you were using ice and Xanax and drinking heavily.[49] You reported to Professor Mullen that you suffered regular blackouts in association with gross intoxication and that when you were not working or in prison you would typically have your first drink soon after getting out of bed in the morning and would drink through the day.
58 Professor Mullen noted your report of a long history of contact with mental health services. Although you had been diagnosed with ADHD as a child, Professor Mullen considered that this was a difficult condition to diagnose in the context of a grossly disturbed family environment and he was sceptical that the administration of Dexamphetamine and Ritalin would have been helpful to you as a child. He opined that you had been prescribed an excessive quantity of those medications by any reasonable standards.
59 It was in the context of severe alcohol and drug abuse following your arrival in Melbourne on 15 March 2013 that your 2013 offending took place, commencing on 8 April 2013. You offended in company with three co-offenders and you were ultimately convicted of ten armed robberies, assault, attempted theft and conduct endangering persons.[50] Judge Dean described your offending at that time as being of the utmost seriousness and noted that deterrence and protection of the community were important features of the sentencing exercise.
60 Professor Mullen opined that it was difficult to be optimistic about someone with your extensive criminal record at such an early age and the interaction between your offending and gross alcohol abuse appeared to be substantial. This opened up the possibility that if you could remain abstinent, the chances of re-offending would decrease. The importance of finding employment was also emphasised and it was noted that your three periods of imprisonment had done nothing to assist you to move towards a more law-abiding life and may well have increased your chances of being a long-term recidivist offender.
61 Professor Mullen observed that you appeared to have some positive qualities and strengths despite your terrible background. Ms Lechner considered that you had some insight and willingness to be involved in treatment and that your risk level would decrease with ongoing therapy addressing your substance abuse problems and psychological distress, with such treatment ideally commencing in custody and continuing upon release into the community.
62 In sentencing you, Judge Dean noted that your exposure to violence, alcohol abuse and drug abuse at an early age undoubtedly led to the development of your offending behaviour. It was noted by Judge Dean that in addition to the reports of Professor Mullen and Carla Lechner, he heard from your mother during your plea and that it was clear from her evidence that you suffered significant trauma as a child, although she continued to offer future support.
63 Having considered the reports provided in 2014, Judge Dean described your prospects for rehabilitation at that time as guarded, noting that the likelihood of reoffending depended on whether you were able to remain drug and alcohol free upon your release from prison. His Honour stated, '[i]n my opinion, your rehabilitation will be facilitated by an extended period of supervision on parole.' At the conclusion of Judge Dean's sentencing remarks, you were sentenced to an aggregate term of six years and three months' imprisonment and ordered to serve three years and nine months before becoming eligible for parole.
64 Turning to the Sullivan report, when Associate Professor Sullivan assessed you, you told him about your past interests, including that you maintained some Christian beliefs and had previously enjoyed weight training, boxing and playing rugby. You also described your past and continuing experiences of spending long periods in custody and how you felt that had affected you.
65 Associate Professor Sullivan reviewed your personal history and examined your mental state. He received information from you about your contact with the Queensland criminal justice system in your youth and early adulthood. You also outlined to him your experience of being in custody from 2013 to April 2020, including being placed at the Melbourne Assessment Prison, the Metropolitan Remand Centre, Barwon Prison, Port Phillip Prison, Marngoneet Correctional Centre and Ravenhall Correctional Centre. He had access to and examined your Corrections records. A summary of his review of your Corrections records will be attached to these sentencing reasons as Appendix A. At the time of your release in April 2020, you had served your entire sentence, having been denied parole. You were remanded for the current offending quite soon after being released.
66 The observation was made that since arriving in Victoria in 2013, you have been incarcerated for almost all of that time; and that you had spent all but five weeks of the last ten years in custody.
67 The Sullivan report records your account that you had been placed in management units due to past altercations with correctional staff, but at the time of the assessment you felt you were being treated reasonably by staff. You said you had a computer in your cell but it was taken from you. You reflected that you were bored, isolated, lacked activity, exercise or access to outdoor space. You said that your legs have been swelling up and you were worried about a blood clot. You said that you used to have stomach problems in prison and had thought in the past that you were being poisoned by custodial staff, although testing was negative for this. You believed you had contacted Hepatitis C through the prison system and you were concerned about a skin rash. You were in receipt of an opiate substitute and a medication for neuropathic pain.
68 The Sullivan report also makes reference to your account that when you were released from prison in April 2020, it was the peak of the COVID-19 pandemic and you felt you were in a bad way coming out of gaol. Shortly prior to your release, you had been cut off the Olanzapine medication that had been being prescribed for you in prison. You ended up in contact with mates from prison who introduced you to NA. You said that you had been consuming alcohol and were at a cousin's house when NA contacted you and asked you to come to her hotel. When you attended there, you noticed that there was someone on the couch. You reported that the victim of your offending, Zane Meyer, was not known to you prior to your offence.
69 Note was made of your psychiatric history prior to your release from prison, including that you received recurrent psychiatric reviews due to persecutory ideas that your food was being adulterated, and somatic concerns associated with abdominal pain and a perception of a rash around your eyes. A range of opinions had been ventured about your symptoms.
70 At the time of the Sullivan report, you still had a mild pre-occupation with a skin condition around your eyes, but were no longer preoccupied with concerns that your food was adulterated, although you considered that it may have happened in the past. You were not found to meet the diagnosis of a delusional disorder or psychotic illness but you were diagnosed with a significant adjustment disorder with a depressed and anxious mood related to your conditions of incarceration.
71 Associate Professor Sullivan gave the following opinion:
He is distressed, but not clearly suffering from sustained and pervasive symptoms of depression. Furthermore, he identifies increasing difficulties with mixing with other people, which he associates with a long period of time spent on his own while in solitary confinement. I do not consider there are sufficient grounds to make a diagnosis of an anxiety spectrum disorder, but note that Mr Pearson has much time to ruminate about his mental health and has limited meaningful occupation or diversion in his current situation. This appears detrimental to his mental health.
72 Associate Professor Sullivan also diagnosed you with a severe substance use disorder including past cannabis and alcohol abuse, and stimulants. He considered that there was insufficient collateral information to determine if you would meet the diagnosis of a personality disorder, noting that since much of your adult life has been spent in custody, this markedly reduces the opportunity to demonstrate personality functioning in a range of different domains.
73 There was no indication of any underlying mental disorder associated with your commission of the offence. However, Associate Professor Sullivan considers that incarceration would weigh more heavily on you due to your protracted adjustment difficulties and the circumstances of your placement, noting that you had sought diverted medication, ostensibly to sedate yourself and cope better and that you had experienced recurring mental health difficulties resulting in trials of several medications in custody. You have required psychological support through Corrections Victoria's Major Offenders Unit.
74 The Sullivan report opines that you will likely continue to have intermittent contact with mental health clinicians and may seek or use prescription medication to better cope. Recommendations were made about what is required in order to reduce your risk of reoffending in the future. These recommendations will be discussed further below.
75 Mr Edney noted that you were remanded in custody on the charges that went before Judge Dean on 7 May 2013.[51] You were aged 24 when his Honour sentenced you on 17 March 2014. You served your entire sentence without being granted parole. You have two entries in your criminal history that relate to offences committed while you were in custody serving that sentence.[52] The first took place on 25 July 2018.[53] You were sentenced for that offence on 23 August 2019, receiving an aggregate sentence of 6 months' imprisonment to be served cumulatively on the sentence imposed by Judge Dean. Then, on 13 December 2019 you were sentenced to 1 months imprisonment for an offence committed on 18 November 2018,[54] which was to be served concurrently with the sentence imposed by Judge Dean.
76 You were released from custody on 24 April 2020 and committed the current offence less than a month later on 12 May 2020. You were arrested and returned to custody on 1 June 2020 in relation to other matters, and then charged with the current offence on 23 June 2023.[55]
77 Mr Edney relied on your conditions of confinement as a matter that should reduce the length of the sentence to be imposed in your case.
78 Mr Edney pointed to the Corrections Victoria Sentence and Remand report, and observed that you have spent considerable periods of time in management and separation units since your return to custody on 1 June 2020.[56] It was put that you have been on remand now for in excess of three years, and that for most of that time you have been subjected to a prison regime that is, effectively, one of 'solitary confinement'. That regime was described as far more onerous than the 'normal' incidents that attach to an 'ordinary' term of imprisonment. It was noted that you were housed for some time in the Melaleuca Unit at Barwon Prison,[57] but recently you were moved to the Olearia unit[58] at the same prison. It was mentioned that the Melaleuca and Olearia Units are similar in physical conditions to other management and high security units in Victoria.
79 Mr Edney submitted that you have experienced physical, social and psychological isolation and 20‑24 hour daily lockdown conditions (as well as being locked down for whole days at a time because of COVID-19 related reasons), and that meals and medications are provided through the trap to your cell. He submitted that the 'depth' and 'extent' of your placement in these highly restricted environments deprived you of meaningful human contact; subjected you to restricted access to programs and courses that might assist your rehabilitation; and confined you in a cell for up to 23 hours per day. In combination, this caused a deterioration in your mental and physical health.[59] Mr Edney provided detailed submissions as to your daily routines since your return to custody in June 2020.[60] The details provided in those submissions will be attached to these sentencing remarks as Appendix B.
80 Mr Edney referred to Corrections Victoria documents that recognise the undesirability of imposing strict regimes on prisoners over the long term.[61]
81 Reference was also made to custodial records showing the extensive psychological, physical and somatic symptoms you have reported leading to extensive testing and differing regimes of treatment.[62]
82 Mr Edney was instructed by you that you understand that you are subject to a long term management plan and that this regime will continue into the future, although there is a chance you may be able to move to a management facility at Ravenhall that offers greater opportunities for rehabilitation.[63]
83 Mr Edney also submitted that during your previous term of imprisonment for the sentence imposed by Judge Dean, you spent the last 14 months of that sentence in highly restrictive conditions. In combination with your current period of remand, you have spent around four years in strict conditions, including being transferred between high security units such as Charlotte, Banksia, Olearia and Melaleuca.
84 Mr Edney submitted that the Court should take account of the harsh and restrictive conditions that exceed those experienced by the ordinary prisoner by reducing the length of the sentence to be imposed. He argued that onerous conditions of confinement have long been held to be mitigatory because what is exacted from an offender by means of 'punishment' is greater than would otherwise be the case from an offender enduring a 'normal' prison regime.[64] In effect, a prisoner subject to such conditions has been, or will be, doing 'harder time' over and above the 'normal' incidents of imprisonment. Whilst the authorities do not specify the extent of any reduction by reference to onerous conditions, Mr Edney submitted the reduction could be substantial.[65]
85 In considering the arguments put forward by Mr Edney both generally in relation to Corrections Victoria regimes of prisoner management and specifically in relation to you, I note that Corrections were provided with copies of submissions made on your behalf in case they wished to be heard or sought to provide a response.[66]
86 The Crown accepted that your experiences in custody were relevant to the sentencing exercise in a general sense, but submitted that the Court should approach this issue with caution. Regarding the submission that the restrictive conditions imposed on you should lead to a significant reduction of your sentence, Mr Rochford noted that there are indications in the material provided by Corrections Victoria that the restrictive conditions have, at times, been in response to your own conduct.[67]
87 It was also submitted that periods of lockdown caused by the pandemic are addressed independently of the courts by Corrections Victoria, through the application of Emergency Management Days.
88 I accept that the conditions you have endured on remand have been extremely harsh and restrictive, over and above COVID-19 related restrictions (which are addressed through a combination of Emergency Management Days and the Worboyes discount). I accept that your resilience and capacity to cope with your remand conditions has likely been diminished following previous exposure to such conditions during earlier sentences undergone in Victoria and Queensland.
89 Whilst it is unclear how long you will continue to be detained in conditions of strict confinement (such as those you have endured on remand), I accept that it may take some time for those conditions to be relaxed and much will depend on your own behaviour.
90 In considering the jurisprudence concerning conditions of strict confinement, I accept that a sentence of imprisonment that has been served in harsh conditions increases the burden of the sentence for the offender relative to other offenders, and that this has occurred in your case. I accept that it is a factor that can be taken into account in reducing the length of the sentence to be imposed,[68] however the Court must also be cognisant of the extent to which a management regime may be responsive to a prisoner's own behaviour.[69] Whilst your behaviour in prison appears to have contributed to the harshness of the regime applied to you, this factor does not cancel out any mitigation of sentence based on harsh conditions of confinement.[70] Accordingly, I have reduced the length of the sentence I would have otherwise have imposed because of the harsh custodial conditions you have experienced on remand, accepting that it is likely that such conditions will continue to some extent as you undergo your sentence.[71]
Circumstances of release from prison and re-offending
91 Mr Edney submitted that the offending occurring so soon after your release from prison needed to be viewed in the context of you having been released from the extremes of strict confinement to having to cope in a community struggling to cope with the COVID-19 pandemic. It was put that you received little by way of support following your release despite having expressed anxiety to the authorities about your imminent release during the early stages of the pandemic.
92 Mr Edney argued that during your lengthy sentence your mental health became compromised by long periods of solitary confinement. Prior to your release in April 2020, you repeatedly expressed paranoid beliefs such as that officers in various units were poisoning your food. The records from your last location before release show that, at a minimum, contemplation was given to whether you should be detained as an involuntary patient pursuant to the Mental Health Act 1986 (Vic) and whether you should continue to receive the anti-psychotic medication you were on.[72] The records show that on 22 April 2020, the decision was made that you no longer required the anti-psychotic medication.
93 Mr Edney submitted that the fact that these matters were being considered so close to your release date reveals the precarious state of your mental health at the time, and that there was a serious issue about whether you would be able to cope outside of custody. These matters were documented by the correctional authorities, yet the degree of support you received was not proportionate to the level of support you required to properly reintegrate into the community.
94 Mr Edney drew attention to the remarks made by Judge Dean about the desirability of your rehabilitation being facilitated by an extended period of supervision on parole.[73] This did not occur.
95 The Defence relied on Bugmy factors[74] as being significant in your case, noting that Judge Dean made findings consistent with Bugmy principles in 2014.[75] It was noted that the disadvantages suffered in a person's early life are enduring, and that the mitigating force of that disadvantage does not diminish over time. The Crown did not dispute that features of your upbringing enliven Bugmy principles.
96 I accept that Bugmy principles apply in your case to reduce moral culpability to some extent and that those principles are also relevant to my consideration of your prior criminal history. However, I must also give weight to community protection and specific deterrence in your case.
97 Bugmy principles are also relevant to informing the concatenation of circumstances that accompanied your release from prison in April 2020. On the day of your release, your daily routine underwent a dramatic change from being a strictly confined prisoner who had been reporting a range of paranoid beliefs and somatic conditions and was in receipt of anti-psychotic medication, to suddenly being outside of prison in the midst of the COVID-19 pandemic, without the anti-psychotic medication you had previously been taking and without the option of being able to join your family in Queensland. In my view, your release in these circumstances, when viewed against the background of your troubled upbringing, left you poorly equipped to avoid relapsing into criminal offending.
98 Mr Edney drew the Court's attention to the deterioration in your mental health while in custody and 'recurring mental health difficulties which have resulted in trials of several medications' and which have necessitated psychological intervention.[76] Mr Edney relied on the Sullivan report as supporting the submission that incarceration will weigh more heavily on you.[77] The Crown did not dispute that the Sullivan report provides a foundation for the application of the fifth Verdins principle.[78]
99 I accept that the fifth Verdins principle applies in your case for the reasons expressed by Associate Professor Sullivan.
101 Although your matter proceeded to trial, and your plea came after the trial had commenced, you offered to plead guilty to manslaughter in 2021, and ultimately your plea of guilty helped to reduce the demands on the criminal justice system during the COVID‑19 pandemic. I have given weight to your early offer to plead guilty to manslaughter. I also accept that Worboyes factors are relevant in two ways: firstly, because your plea of guilty has saved precious court resources; and secondly, because of the hardship suffered by all prisoners due to the pandemic, adding to the burdens experienced by you as a management prisoner.
102 Mr Edney submitted that you are genuinely remorseful and conscious of the enormity of your crime and its impact on the victims. He referred to your plea of guilty and to the letter of apology your wrote as demonstrating your remorse.
103 The Crown acknowledged that your sentence warranted mitigation to reflect your plea of guilty.[81] Regarding remorse, Mr Rochford submitted that the Court should regard the evidence of your remorse as being limited. Whilst some remorse was reflected by your plea of guilty and the letter of apology, it was submitted that the delay from arraignment to plea hearing caused distress to the deceased's family. The Crown also suggested you are unwilling to take full responsibility for your actions.
104 I accept that you are somewhat remorseful and that your letter of apology shows that you have some understanding of the impact of your crime on those close to Zane; however, I have some reservations about the extent of your acceptance of responsibility for your role in what took place.
105 Mr Edney submitted that despite your dysfunctional childhood, your family in Queensland are willing to assist your rehabilitation, and they have shown willingness to support you in various ways during your periods in custody in Victoria.[82]
107 The cases I have referred to provide some guidance, however no two cases are the same, and sentences are not precedents to be applied or distinguished. In the end, the determination of the appropriate sentence requires the synthesis of many factors - some of which, in this case, point in opposing directions.
108 The Crown submitted that while the circumstances underpinning manslaughter cases can vary greatly, in this case the sentencing purposes of deterrence, just punishment and denunciation must be given significant weight. Regarding rehabilitation, the Crown submitted that your prospects are poor, due in part to your history of institutionalisation.[85]
109 The Crown also argued that community protection has a significant role to play in sentencing you, noting how soon you re-offended after being released from custody on 24 April 2020.
110 Mr Edney, on the other hand, referred to the fact that you are still relatively young, that you have family support, and that at the present time, there are indications of greater stability, such as improvement with treatment with a new antipsychotic medication and the prospect that you may in the near future graduate to Ravenhall from your current placement.[86]
111 Although I regard your offending in this case as a serious example of the offence of manslaughter, I consider that the length of your sentence should be moderated to give appropriate weight to your plea of guilty, Worboyes factors, Bugmy factors, and the fifth Verdins principle. I also acknowledge the difficult circumstances you found yourself in when you were released from prison in April 2020. I will also moderate your sentence due to your ongoing experience of conditions of hardship in custody.[87] It is also contextually relevant that the restrictive conditions of your current remand were preceded by similar restrictive conditions imposed in the latter part of your previous period of custody, potentially leading to a loss of resilience in coping with such conditions. The hardship of the conditions you have endured and may continue to experience to some extent in the future supports the submission that you have been doing 'harder time' than the ordinary prisoner.
112 In considering the significance of your past and likely future conditions of custody and the significance of this offence having occurred so soon after your release, it appears to the Court to underline the vital importance of supervised release with appropriate support structures in place.[88] I accept the opinion expressed in the Sullivan report that in the event of future parole it would be of benefit (and likely to improve coping and reduce the risk of further offending), if you had a comprehensive series of supports in place including options for accommodation and employment support, transitional case management and stronger linkages to primary care and mental health clinicians if required at the time of release. Ideally, preparation for putting these measures in place should commence well before the expiry of your minimum term of imprisonment.
113 Regarding your prospects for rehabilitation, I am bound to assess them as very guarded, but if you were able to gain trust within the prison system and obtain education or work you may fare better when you approach consideration for release on parole. All the factors I have referred to in these sentencing remarks have also influenced the determination of your non-parole period.
114 Just punishment, general and specific deterrence, denunciation and community protection are all important in your case. Your rehabilitation is also important.
115 The principle of parsimony requires that the Court not impose a sentence that is more severe than that which is necessary to achieve the purposes of sentencing.[89]
116 Finally, I acknowledge that no sentence imposed by this Court will compensate the family of Zane Meyer for their grievous loss, and that you are the person whose actions took away his life. For that, you must be punished.
118 On the charge of manslaughter, you are convicted and sentenced to a term of imprisonment of 8 years and 6 months' imprisonment. I fix a non‑parole period of 6 years.
119 I declare that you have already served 1109 days,[90] not including today's date, by way of pre-sentence detention, to be reckoned as already served under the sentence I have just imposed.
120 Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 11 years with a non‑parole period of 9 years.
121 I will make the disposal and forfeiture orders sought by the Crown.
[46] A forensic discharge summary prepared on 26 March 2020 noted that Mr Pearson had been discharged to voluntary follow up with a general practitioner. He had contact with psychiatric services at Ravenhall Correctional Centre and had diagnoses of hypochondriacal disorder (non-delusional dysmorphophobia) and multiple substance use. It was noted that he also had a history of asthma and treated hepatitis C virus. It was noted that Mr Pearson had a history of erratic treatment compliance and "psychosocial issues regarding poor interpersonal relationships, accommodation and occupation". He reported a diagnosis of attention deficit hyperactivity disorder in the past.
[47] Mr Pearson was assessed by consultant forensic psychiatrist Dr [redacted] on 1 November 2018, and diagnosed with mild-to-moderate depression, social anxiety and prominent antisocial personality traits and commenced on duloxetine (Cymbalta, an SNRI antidepressant).
[48] He was then reviewed in 2020 by consultant forensic psychiatrist Dr [redacted], and found to have a single paranoid delusion about food contamination, which was considered related to stress or cluster B personality rather than psychosis.
[49] In March 2020, he was seen by Dr [redacted] and the impression was of "paranoid psychosis consistent with a monodelusional disorder, quite possibly arising as a consequence of his prolonged management in segregation for the last two years". Mr Pearson was started on olanzapine.
[50] He was reviewed by consultant forensic psychiatrist Dr [redacted] on 17 March and transferred to the Acute Assessment Unit at Melbourne Assessment Prison, as he remained unwell and was not accepting medication.
[51] He was reviewed by consultant forensic psychiatrist Dr [redacted] on 24 March 2020 and was transferred to Aire Unit of the Ravenhall Correctional Centre, and olanzapine dosage was increased to 15 mg.
[52] On assessment, Mr Pearson was described as "disturbed". He wanted a puffer and was upset at being handcuffed. He was irritated at being maintained in a room with a carpet because of allergy. He complained to the psychiatrist that poison had been mixed with his food over the last six months, and he felt unwell including abdominal pain and "other problems which he did not want to elaborate on". He did not accept that he had mental health issues and would not accept taking olanzapine, also noting that it affected his sleep. He was on 60 mg of methadone and wished to reduce his dosage. He was noted to have had multiple investigations in January and February 2020, including haematology, electrocardiogram (ECG) and multiple biochemical investigations. He also had a urea breath test and faecal assay looking for a range of different infections which might be associated with abdominal problems.
[53] It was noted he had had earlier treatment in 2015 and 2016 for depression and anxiety with mirtazapine and escitalopram (Lexapro, an SSRI antidepressant) but with erratic compliance. He was preoccupied with "a pigmented rash" around his eyes and forehead which could not be observed by doctors. He also considered when he stopped eating prison food he improved. He had seen a clinical psychologist in Major Offenders Unit and noted she worked with him for 14 months and there had been ongoing deterioration in his presentation, with fluctuating fixity.
[54] I reviewed further JCare notes covering the period since his release from custody in 2020. At reception screening on 1 June 2020, Mr Pearson reported that he had taken olanzapine and methadone after release from prison. No specific mental health concerns were noted and he was described as behaviourally settled. At that stage, he "reports his past solitary confinement, trust issues and poor rehabilitation post release is a cause for reincarceration". On 23 June 2020 he was re-referred by the unit correctional staff after he was charged with murder. He denied significant concerns. He was then further reviewed by a consultant psychiatrist on 24 June 2020. He was provided olanzapine 5 mg.
[55] He was maintained on at-risk rating for a period of time but there were no particular concerns.
[56] On 1 July 2020, Mr Pearson was found with "prongs for smoking". He did not express concerns about contamination of his food. On 12 October 2020, there were concerns that he was diverting methadone after pink liquid was found in the carpet of his cell but he denied this, saying that he self-medicated through the day with a sip in the morning and having the rest later in the day. On 15 December 2020, it was noted that following consideration of this Mr Pearson had not been found guilty of diversion and opiate substitution treatment was to be reinstated. It was noted that "since being ceased off methadone two months ago, Trent has recommenced unprescribed buprenorphine use...1 mg daily (when available) via snorting".
[57] On 24 February 2021 there were concerns that he had found a battery and buprenorphine, but he stated that someone else had acknowledged that they were responsible for this. He spent some time at St Paul's Psychosocial Rehabilitation Unit in Port Phillip Prison. Mr Pearson underwent assessment there. On 23 April 2021 he was reviewed by the consultant forensic psychiatrist at St Pauls, Dr [redacted] . It was noted that he was a long-term management prisoner "in relation to his longstanding antagonism towards correctional staff". Noting the persistence of his belief that he had been poisoned in the past (although not considering this was continuing), considered the diagnosis was likely delusional disorder "not impacting on his current functioning or risks" and he was continued on olanzapine. Mr Pearson was reviewed by a consultant psychiatrist on 18 October 2021 and it was noted "no current mental psychotic disorder, previous delusional belief has responded to olanzapine, weight gain and risk of metabolic syndrome but reluctant to switch antipsychotic". No change to medication was made and he was for review in a few months.
[58] On 17 January 2022 Mr Pearson was reviewed again. There was a mild reduction in olanzapine dosage, and he was commenced on sertraline due to anxiety. A psychiatric nurse review in 2 June 2022 noted "feels olanzapine is not working for him, states he feels paranoid and thinks he is going crazy, feels that his environment is not real". He was then reviewed by the psychiatry consultant on 10 June 2022 when he complained about the effect of being in solitary confinement and it was noted "thoughts about his food being poisoned have returned... recently had some stomach upset and based on this wondered if people could be spitting in his food". Also noted was "does not think the reduction in olanzapine is related. Not keen to increase the dose." Also noted was "occasionally has experiences in which he feels like he is in a simulation and does not know what reality is". There was discussion of treatment for attention deficit hyperactivity disorder. Olanzapine was switched to paliperidone (Invega, an antipsychotic medication) and sertraline was stopped at his request. He did not feel happy with the paliperidone as it made him feel "zoned out, drowsy and has no motivation".
[59] A psychiatry consultant reviewed Mr Pearson on 6 September 2022 and noted that he did not feel sertraline was helpful and did not wish to increase the dose, noting "in community used alcohol to cope". Also noted was subclinical hypothyroidism and vitiligo (a skin condition).
[60] He noted some problems: "they had found shit hidden in my cell/had loss of privileges for a bit... coz I do random shit coz I am hyperactive, and stay up late doing arts and crafts". Although he did not attribute improvement in his mental state to he was considered to have improved. He was started on aripiprazole (Abilify, an antipsychotic medication) 10 mg for one week with a subsequent increase to 15 mg. He was given an ADHD questionnaire by the consultant psychiatrist and sought collateral information about that diagnosis. The notes ended on 4 November 2022.
__________________________
2. As to the physical layout of the Melaleuca Unit some assistance, according to TP, may be had to the photographs of the management unit of the Alexander Maconochie Centre in the ACT that are annexed to the decision of Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83. In Davidson - which is reference in FN 50 of the Amended Defence Submission - the applicant had spent 63 days in solitary confinement. Of course, in TP's case his confinement in such conditions is to be measured in years not just over 2 months. A useful way, perhaps, to understand TP's 'time' is how much he has been deprived from 'doing' during this period of 'time'. As was explained by Ashley JA in R v Tran [2008] VSCA 80 - - when re-sentencing a successful appellant - at [47] - 'for anyone who might be disposed to say that there is not much difference between 16 years and 6 months' imprisonment and 18 years' imprisonment, and that substitution of one for the other would be just 'tinkering', I think it is well to reflect upon how much is done by most people in one day, one week, or one month of their lives, let alone how much in one year, or a year and a half'.' Framing TP's experience of his 'time' in such a way it is possible to understand just how much he has 'lost' by doing his 'time' in such extreme conditions.
__________________________
[1] For the purposes of the Sentencing Act 1991, manslaughter is a category 2 offence. Section 5(2H) provides that the offender must be sentenced to a term of imprisonment unless one of the exceptions in the subsection is engaged.
[2] The maximum penalty for manslaughter has since increased to 25 years. See Crimes Amendment Manslaughter and Related Offences Act 2020 s 3 (amending the Crimes Act 1958 s 5).
[3] As indicated on the indictment, though it is evident that you killed Zane on 12 May 2023.
[4] Pursuant to s 325 of the Crimes Act 1958 (predicated on assisting in the disposal of the deceased's body on what was, at the time of his plea, alleged to be the offence of murder). JK was sentenced by Incerti J to 2 years imprisonment with a non-parole period of 11 months.
[5] NA was sentenced on 31 March 2022 to 4 years and 4 months' imprisonment with a non‑parole period of 2 years and 2 months.
[6] To which you pleaded not guilty on 26 April 2022.
[7] Six days in which evidence was called before the jury.
[9] In March 2021, TP offered to plead guilty to a charge of unlawful and dangerous act manslaughter. That offer was rejected at that time. The matter proceeded as a murder trial before me from 26 April 2022 until 5 May 2022 and a plea of guilty to manslaughter was entered.
[10] See Transcript of Plea before Justice Jane Dixon, 28 April 2023, pp 8-15.
[11] It was noted by the Crown that I had some familiarity with the background context from having sentenced NA.
[12] Noting that I was told that you had indicated to the Crown in advance of your plea hearing certain areas of dispute touching on your role.
[13] The image was deleted from Facebook shortly after it was posted.
[14] On 13 May 2023 R Hintz made a police report about the theft of his car.
[15] CCTV footage relating to a time of 11.08pm. Further CCTV footage shows NA returning to the apartment with Zane at 11.13pm.
[19] That fire went for about 45 minutes.
[20] That location was found using service information from the phones of JK and you at that location at 6.30am on 13 May 2020.
[21] There was bruising with the stab wounds. There was also a stab wound to the medial left thigh, three superficial stab wounds to the posterior left thigh and calf, a superficial stab wound to the right knee, a stab wound to the medial right forearm with penetration to the bone, bruising to the right lateral forearm and the left occipital subgaleal scalp bruise.
[22] Noted to be apparent from the autopsy on Zane's body.
[23] Exhibit P1 'Bundle of Victim Impact Statements: Mr Meyer (27/1/23), Ms V (23/2/23) and Ms W (20/1/23)'.
[24] Exhibit D11 'Forensicare Report, dated 16 February 2014'.
[25] Exhibit D10 'Carla Lechner Report, dated 23 November 2013'.
[26] Exhibit D3 'Sentence of Judge Dean in DPP v Pearson [ 2014] VCC 230'.
[28] Exhibit D2 'Psychiatric Report of Associate Professor Danny Sullivan, dated 26 May 2023' ('the Sullivan report').
[29] Subpoenas were served by the Defence on Corrections Victoria and Justice Health.
[30] Exhibit D4 'Discharge Summary Primary Health Ravenhall Correctional Centre, dated 22 April 2020'; and exhibit D5 'Discharge Summary Secondary Mental Health Ravenhall Correctional Centre, dated 26 March 2020'.
[31] Exhibit D7 'Sentence Remand Report, as at 17 January 2023'.
[32] Exhibit D8 'Reference letter by R Harvey and T Harvey, dated 26 June 2023'.
[33] Exhibit D6 'Letter by Trent Pearson, undated'.
[34] Exhibit D9 'Further Sentence Submissions, dated 30 June 2023'.
[35] Exhibit D12 'Final Supplementary Sentencing Submissions, dated 7 July 2023.'
[37] Attention deficit hyperactivity disorder.
[38] In written submissions, Mr Edney notes that your first engagement with the criminal justice system was when you were 17 years old and you received a term of detention from the Brisbane Childrens' Court. However, the report from Professor Mullen records your first period in detention was when you were 15 years old, when you were remanded at the Queensland juvenile facility for 16 months.
[39] Attempt to enter premises with intent; enter premises with intent; and enter premises and commit indictable offence.
[41] The sentence was imposed by the Brisbane Magistrates' Court for offences committed on 21 June 2008. For the charge of common assault you were sentenced to 12 months' imprisonment, and for the charge of stealing you were sentenced to 216 days imprisonment to be served concurrently. Your criminal history records your 'Parole Release Date' as 23 January 2009.
[42] Sentence imposed by the Brisbane District Court for an offence committed on 28 February 2009; attempted enter dwelling with intent. A compensation order was also made.
[43] Also imposed in the Brisbane Magistrates' Court. The first offence occurred on 9 December 2010 and relates to a '[DFVPA]...Breach of Order...'. The second occurred on 14 March 2011 and relates to the same type of charge.
[44] You were sentenced to 12 months' imprisonment for the offence that took place on 16 March 2010 and 9 months' imprisonment for the offences that took place on 9 December 2010 and 14 March 2011, to be served concurrently.
[45] By the Brisbane Magistrates' Court. The offence occurred on 29 September 2011. The operational period of the suspended sentence was 12 months.
[46] At the same time, you were sentenced to two charges of failure to appear, the first occurred on 23 November 2011 and the second on 30 November 2011. You were sentenced to 1 month imprisonment on each, to be served concurrently with the two months' of the restored suspended sentence, meaning a total effective sentence of 2 months'.
[47] Sentence imposed the Brisbane Magistrates Court for one charge of commit public nuisance committed on 5 November 2011 and a further charge of commit public nuisance committed on 6 November 2011, for which you received 6 months' to be served concurrently; one charge of failure to appear on 22 February 2012, for which you received 2 months' to be served cumulatively; and one charge of breach of order committed between 21-23 July 2011, for which you received 1 months' imprisonment to be served cumulatively.
[48] Some of these offences appear to pre-date the re-sentencing exercise of the Queensland District Court on 23 December 2011, and it may that you were arrested in relation to these offences but that the breaches were dealt with first in the Brisbane District Court, and that you were sentenced in relation to these offences while already in custody. However, I cannot be certain of this as the circumstances of the offences and the procedural history that relates to them is not clear.
[49] You also attributed your substance abuse to your distress at your father's condition in your consultation with Professor Mullen.
[50] The armed robberies were mainly committed on convenience stores and service stations.
[51] As shown by the Corrections materials.
[52] Shortly after you were sentenced by Judge Dean, you were sentenced on 4 April 2014, for a charge of robbery to 8 months' imprisonment, 4 months' of which were to be served concurrently with the sentenced imposed by Judge Dean. The details of this offence were not put before the Court, although it was suggested by Mr Edney that the offence was temporally connected to the spate of similar offending dealt with by Judge Dean.
[53] For two charges of assault emergency worker; one charge of recklessly causing injury; and one charge of unlawful assault, in relation to an assault on prison staff whilst in custody. See exhibit P5 'Summary of Offending on 25 July 2018'.
[54] For an offence of threat to kill, in relation to a verbal threat made to prison officer. See exhibit P6 'Summary of Offending on 18 November 2018'.
[55] On 1 June 2020, you were arrested and placed into custody in relation to other offending, including commit indictable offence whilst on bail; shop steal; theft of motor vehicle; and fail to stop for police. On 22 June 2020, you were sentenced to 2 months' imprisonment for those offences backdated to the day of your arrest. On 23 June 2020, you were charged with murder and remained in custody on the murder charge after the expiration of your 2 month sentence. Accordingly, your PSD is calculated from 1 August 2020. See Exhibit D7, 'Sentence Remand Report, as at 17 January 2023'.
[56] Exhibit D7 'Sentence Remand Report, as at 17 January 2023'. This document shows the locations of a prisoner throughout their time in custody.
[57] From September 2022 until more recent times.
[59] Mr Edney referred to literature that shows a link between solitary confinement and health effects including psychological detriment, perceptual distortions, paranoia, gastrointestinal and genitourinary problems , insomnia and the like: Transcript of part heard plea hearing 29 June 2023 pp 13, 14.
[60] Exhibit D9 'Further Sentence Submissions, dated 30 June 2023'.
[61] It was noted that Corrections Victoria recognises the applicability of the Mandela Rules to prison administration.
[62] Transcript of part heard plea hearing 29 June 2023 p14.
[63] Transcript of part heard plea hearing 29 June 2023 pp 15 and 19.
[64] Particular emphasis was placed on forms of solitary confinement.
[65] Mr Edney referred to R v Howard where Wood CJ at CL commented that: 'It is the fact, as Kirby P pointed out in AB v The Queen, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison'. Mr Edney argued that although this and other similar cases were dealing with protective custody, there are relevant comparisons to be made with management regimes due to the harshness of conditions in such cases.
[66] On 20 June 2023 the Department of Justice and Community Safety ('DJCS') were provided with the following documents: exhibit D1 'Amended Defence Outline of Submissions for Plea in Mitigation, dated 19 June 2023'; exhibit D2 'the Sullivan report'; exhibit 3 'Sentence of Judge Dean in DPP v Pearson [2014] VCC 230'; exhibit D4 'Discharge Summary Primary Health Ravenhall Correctional Centre, dated 22 April 2020'; exhibit D5 ' Discharge Summary Secondary Mental Health Ravenhall Correctional Centre, dated 26 March 2020'; exhibit D6 'Letter by Trent Pearson, undated'; and exhibit D7 'Sentence Remand Report, as at 17 January 2023'. On 22 June 2023 DJCS advised that neither Corrections nor Justice Health would seek to file any material or respond to material provided to them. On 13 July 2023, DJCS were provided with exhibit D9 'Further Sentencing Submissions, dated 30 June 2023.' On 13 July 2023 DJCS responded that neither Corrections or Justice Health sought to respond to the submission.
[67] For example, a Department of Justice Risk History refers to two assaults by you. The first appears to have occurred on or around 29 August 2013 and is described as an assault on staff and another prisoner. The second occurred on or around 20 August 2019 and is described as a 'serious assault on PPP staff'.
[68] DPP v Ali Chaouk [2019] VSC 381 [19].
[69] Byrne v The Queen [2020] VSCA 289 [21].
[70] The Queen v Binse [2014] VSC 253.
[71] The Queen v Binse [2014] VSC 253 [42]; DPP v Ali Chaouk [2019] VSC 381 [20] and [26].
[72] Exhibit D5 'Discharge Summary, Secondary Mental Health Ravenhall Correctional Centre dated 26 March 2020' p 10.
[73] Exhibit D3 'Sentence of Judge Dean in DPP v Pearson [2014] VCC 230' at [20].
[74] Bugmy v The Queen ([2013] HCA 37; 2013) 249 CLR 571.
[75] Exhibit D1 'Amended Defence Outline of Submissions for Plea in Mitigation dated 19 June 2023' at [47].
[76] Mr Edney also referred to Associate Professor Sullivan's opinion that, at times, you diverted medication to sedate yourself and 'cope better', see exhibit D2 'the Sullivan Report' [80].
[77] Exhibit D2 'the Sullivan Report' [80].
[78] R v Verdins [2007] VSCA 102 [32].
[80] Worboyes v The Queen [2021] VSCA 169.
[81] Noting that while you entered your plea during a trial for the more serious charge of murder, you had originally offered to plead guilty to manslaughter at a much earlier stage.
[82] Transcript of part-heard plea hearing 29 June 2023 p 5 and exhibit D8 Reference letter by R Harvey and T Harvey, dated 26 June 2023.
[83] Including the Sentencing Advisory 'Sentencing Snapshot, Sentencing in the Higher Courts 2017‑2018 to 2021‑2022: Manslaughter' published June 2023 .
[84] See for example: R v Deng [2023] VSC 257; DPP v Griffith [2023] VSC 218; DPP v Manuel [2021] VSC 568; DPP v Volpe [2021] VSC 353; and DPP v Harrison 2021 VSC 601.
[85] Transcript of part-heard plea hearing 29 June 2023 p 28.
[86] Transcript of part-heard plea hearing 29 June 2023 pp 19 and 31.
[87] Whilst also considering the contributions of prison misbehaviour to prison management decisions.
[88] The Court of Appeal in Glatz v R [2023] VSCA 161 referred to the way in which protection of the community can be enhanced by appropriate preparation for release, and support once released, for prisoners suffering from adverse mental health conditions, though I note that Glatz concerned an offender diagnosed with a mental illness, being a schizoaffective disorder.
DPP
Pearson [2023] VSC 483