DPP v Bennison [2016] VSC 686

2 You had never met Jason Stone before the night that you agreed with a plan to assault Jason Stone. Further, until that night you did not know the person responsible for the plan, namely Terry Mitchell ("Mitchell"). Equally, you had only known the other person who was part of this unlawful agreement ("Co-offender A")[1] for no more than a week or so.

3 Timothy Bennison, you have pleaded guilty, somewhat belatedly, to the murder of Jason Stone. It was accepted by your counsel that the bashing of Jason Stone in which you actively participated was sustained, protracted and brutal.

4 To elaborate on the circumstances leading to Jason Stone's death, you were informed that Jason Stone owed Mitchell money by reason of an alleged drug debt arising from trafficking or dealing in the drug methamphetamine, also known as "ice". You agreed with Mitchell and Co-offender A to attend at Jason Stone's girlfriend's home on the same night and to wait for Stone to come to that location so you could "touch him up".

5 You attended at Jason Stone's girlfriend's home, which was a unit in North Frankston, and waited for Jason Stone to arrive. When he did arrive in the early hours of the morning, it was you that first assaulted him. You blocked his way and you punched him in the face. This is a truly extreme way to behave towards someone you did not even know.

6 Notwithstanding attempts by Jason Stone to resist you and the others, the 3 of you dragged him into the laundry of the unit. Once you had him in the laundry, the door was closed behind you. What then followed was truly abhorrent. You, along with the others, repeatedly punched and kicked Jason Stone. By your guilty plea to murder, you have accepted that you engaged in this conduct with the intention of causing really serious injury to Jason Stone, which intention was fulfilled and contributed to the cause of Jason Stone's death.

7 There were 2 other people in the unit at the time Jason Stone was being beaten by you and your co-offenders. They did not enter the laundry because of a fear for their own safety.

8 Precisely how long the bashing in the laundry took place is not clear. Both the other 2 people in the unit (who were not in the laundry) and neighbours could hear Jason Stone calling out while he was being assaulted. Towards the end of this protracted assault, you, along with your co-offenders, bound the wrists and feet of Jason Stone with adhesive tape. The 3 of you also caused a sock to be placed as a ball in his mouth. Tape was placed around his head, neck and throat to keep the sock in place, presumably in an attempt to stifle Jason Stone's cries for help.

9 Having been bound and gagged, Jason Stone was carried from the laundry, down the hallway of the unit, through the lounge room and outside the front door. He was then carried to a parked car at the front of the unit. The boot was opened and you and your co-offenders placed Jason Stone inside. The boot was then shut, locking him inside. At that point, neighbours could hear Jason Stone moaning and kicking from the inside of the boot.

10 You then decided to get into the car with Co-offender A, who sat in the driver's seat. Mitchell stated that he was going to stay behind. Upon Mitchell indicating he intended to stay, he told both you and Co-offender A to take Jason Stone for a drive and to "get rid of him". Mitchell also stated to you both that he would look after you for killing Jason Stone. When Mitchell stated these things, there is no suggestion you took a backward step or did anything other than continue with your involvement in this terrible crime.

11 With you in the passenger seat, Co-offender A then drove off in his car with Jason Stone in the boot, while Mitchell returned to the unit to clean the mess in the laundry.

12 Closed circuit television footage shows that you arrived at Ricketts Point car park in Beaumaris at 3.12 am on 8 November 2014. Although there is considerable doubt as to what precisely occurred upon your arrival at the Ricketts Point car park, there is no doubt that you were actively involved in disposing of Jason Stone's body. This involved his body being dragged onto the foreshore area. Eventually, Jason Stone's body was placed in bushes on the foreshore. Broken branches off nearby trees were placed by you and Co-offender A in an attempt to conceal his body.

13 In summary, you voluntarily chose to violently assault a basically defenceless man who you did not know at the request of another man you did not know. You caused a gruesome death in aggravating circumstances and then dumped his body.

14 It appears that approximately 2 weeks after the murder you experienced some remorse. On 23 November 2014, you voluntarily attended at Melbourne East police station and stated "I did it, I can't live with it anymore". You referred to a guy being killed in Sorrento and a body being hidden in the bushes at Beaumaris. You also said "I know who did it".

15 However, the extent and genuineness of your remorse is far from clear. For many years you have had a serious alcohol dependency which, at the time of these events, usually involved you drinking a bottle of port at 1 sitting, every day, plus other alcohol if you could get it. According to the police officer who attended to you, when you arrived at the police station you smelt of alcohol. Further, later that day when interviewed, you deliberately set about to mislead the police. Even though you had a right to remain silent and did not need to relate any detail concerning the circumstances of the death of Jason Stone, nonetheless, you told the police that you were present but falsely said you were not involved in his death. In short, you attempted to establish the involvement of Mitchell and Co-offender A in Jason Stone's death, but to exonerate yourself. This is hardly the conduct of a remorseful individual.

16 For completeness, there was no suggestion that your attendance on 23 November 2014 led the police on a chain of enquiry with respect to Mitchell or Co-offender A that they were not already pursuing.

17 On 24 November 2014, you were again interviewed by police and on this occasion you falsely denied ever touching Jason Stone or having an active role in his death.

18 Yet again, on 27 November 2014, you misled police by saying that someone called "Craig" had driven you to Mitchell's house, which was where you attended before going to Jason Stone's girlfriend's home.

19 Finally, in an interview with police, on 29 January 2015 you again denied ever touching Jason Stone, and even denied knowing Co-offender A before the time of the relevant events. This falsehood was exposed by the police, who had accessed text messages between you and Co-offender A prior to that time. Certainly by this point, the story you were telling police had started to unravel. After you had been charged with murder during the course of this interview, you acknowledged you helped Co-offender A move Jason Stone's body to the bushes. But you still denied any other involvement.

20 You maintained this position from January 2015 for nearly a year, including throughout a fully contested committal. Although the exact date is not clear, in around December 2015 negotiations to resolve that matter were instigated by you. It was not until late January 2016 that lawyers on your behalf materially advanced those negotiations, which ultimately led to you agreeing to plead guilty to murder on 22 March 2016. You were arraigned and pleaded guilty on 30 March 2016.

21 At the time you pleaded guilty, your trial for the murder of Jason Stone was due to commence in early April 2016. Whilst the adoption of this position occurred before your trial had commenced, it could not be properly described as an early plea of guilty. Further, on the question of remorse, there was no meaningful suggestion that the Crown's case was weak.[2] That said, your guilty plea has saved the community the expense of a substantial criminal trial, whether you were to be tried on your own or jointly with Mitchell. I take into account the full utilitarian value of your plea.

22 From 2 to 4 November 2016, a contested plea was conducted in this court with respect to what the prosecution said were certain aggravating factors alleged to have occurred after you arrived at Ricketts Point car park. The prosecution failed to establish those issues beyond reasonable doubt and, accordingly, they were determined in your favour.[3] It was not suggested by your counsel at the contested plea that there were any circumstances which might be proved to be taken into account in your favour.

23 Your counsel accepted that there were other aggravating circumstances, being acts in which you directly participated, namely:

(1) The use of adhesive tape to bind Jason Stone's legs and arms together.

(3) Having really seriously injured Jason Stone, putting him in the boot of the car.

(4) The manner in which you disposed of Jason Stone's body.

24 Your counsel correctly acknowledged that denunciation of your conduct, as well as general and specific deterrence will weigh heavily in determining the appropriate sentence.

25 It was submitted on your behalf that, although murder is the most serious offence, you ought to be assessed on the low to mid range of seriousness of murder. This submission was put on the following bases:

(1) You did not have an actual intention to kill, but rather an intention to cause really serious injury.

26 As to the last of those matters, it is common ground you did not use a weapon. Further, to the extent that it was not decided until the night of the murder to carry out the joint assault, it may be said that the offence was not premeditated. However, it also should be noted that there was a considerable lapse of time between the point at which the agreement was made to harm Jason Stone and the time at which he arrived at his girlfriend's home and was then attacked.

27 With respect to the first submission concerning your intention, it does not follow that because you did not have an intention to kill that necessarily you should receive a lesser sentence. Although intention may, in some cases, be a relevant consideration,[4] the moral culpability of your conduct is to be assessed based upon all the relevant facts and circumstances of the case.[5] A protracted and savage assault, as carried out in this case, can only be properly considered as involving a high level of moral culpability.[6]

28 You are now 35 years of age, having been born on 19 May 1981. You are the eldest of 7 siblings, and also have a half-sister. You now have little to do with your family,[7] other than the occasional telephone call from your father.[8] You have received no contact from your mother or your siblings since being remanded.

29 You grew up in the eastern suburbs of Melbourne. You remained at school until the age of 16, but left half way through year 9. After leaving school you secured employment immediately and have had a solid working history since that time. In broad terms, you have worked as a tyre fitter all your adult life, save for a short period working as a storeman or when you have been incarcerated. During your present period on remand you have been working in prison industries and are a billet in the prison factory.

30 You have abused substances at various times throughout your life, including the use of methamphetamine, cannabis, ecstasy and alcohol. As noted above,[9] you have a serious alcohol problem. However, although you used methamphetamine and alcohol on the night in question, it was not submitted that such use was in any way a mitigating factor.

31 In short, there is no real explanation as to why you decided to get involved, or why you continued with your involvement throughout.

32 [This paragraph is the subject of a suppression order]

33 You were assessed by a clinical neuropsychologist, who prepared a report. That report referred to the possibility of a mild level of intellectual impairment being present at the time of offending. It also referred to a significant pattern of substance abuse. However, no reliance was placed in your plea upon the principles in R v Verdins.[10] Given the contents of the report, this was undoubtedly the correct approach.

34 Your counsel sought to rely upon the parity principle, by reference to a sentence already imposed on Co-offender A. As has been recognised on many occasions, it is desirable that persons who have committed the same offence should, if other things are equal, receive the same sentence. Even if things are not entirely equal, the disparity between the sentences of co-offenders must not be such that it gives rise to "a justifiable sense of grievance" so that it would appear that justice has not been done.[11] That said, the principle may only be applicable to the extent the co-offenders' background, culpability and antecedents are comparable.[12]

35 Reliance was placed upon the fact that Co-offender A, who pleaded guilty to manslaughter, was sentenced on 11 April 2016 to 5 years' imprisonment, with a non-parole period of 3 years and 9 months. This sentence was reduced from 10 years' imprisonment with a non-parole period of 7 years and 6 months by reason of Co-offender A's guilty plea and also his undertaking to give evidence against both you and Mitchell.[13]

36 There are a number of distinguishing factors between the circumstances relevant to Co-offender A's sentence and the circumstances surrounding your crime. Although it was found that Co-offender A's crime was "a serious example of manslaughter",[14] a number of mitigating factors were identified. Without going through these expressly in detail, it is sufficient for present purposes to record that Co-offender A's criminal history did "not reveal a history of violent offending".[15] Further, he received a significant sentencing discount because of the "valuable" evidence he agreed to give against you and Mitchell.[16]

37 Finally, and self-evidently, a guilty plea to manslaughter is very different to a guilty plea to murder.

38 Whilst your criminal record could not be described as extensive, it is undoubtedly significant. In particular, in 2007 you pleaded guilty to 1 count of intentionally causing serious injury and 1 count of possessing an unregistered handgun. A feature of that case was that, like in this case, you agreed with another person to attack someone shortly before the attack occurred. That attack was also serious, the sentencing judge describing it as callous, vicious, cowardly and prolonged.[17]

39 By reason of this conviction, you are a serious violent offender.[18] Thus, in considering the sentence of imprisonment that is justified, ordinarily the court is required to have regard to the protection of the community from you as the principal purpose for which the sentence is imposed.[19] Further, the court may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[20] However, the Crown did not submit the court should impose a sentence which was disproportionate with the gravity of the offence and I do not propose to do so.

40 Four victim impact statements were tendered. Jason Stone's sister, Sarah, read out her statement in court. The statement by Jason Stone's mother, Kayleen, was read out in court by junior counsel for the Crown in the presence of Kayleen Stone, who found it a very emotional event. The remaining 2 statements from Jason Stone's father, Dennis, and from Sylvia Milionis, who describes herself as like a mother to Jason Stone, were not read in court but have been read by me. It is apparent from those statements that Jason Stone is sorely missed. Each person expressed a great deal of love, affection and respect for Jason Stone and it is clear that each of them has suffered greatly by reason of Jason Stone's unfortunate fate.

41 I have had regard to these impact statements in sentencing you.

42 It was submitted on your behalf that you have reasonable prospects of rehabilitation providing you are able to deal with your substance abuse issues. However, there was nothing before the court to suggest your substance abuse issues will not continue upon your release. Nevertheless, I have taken into account your work history and your capacity to obtain gainful employment in considering your prospects of rehabilitation.

43 Taking each of the matters referred to above into account, and balancing the factors as best as I am able within the confines of the principal purpose of regard for the protection of the community, on the count of murder you are convicted and sentenced to be imprisoned for a period of 21 years. I fix a minimum non-parole period of 18 years.

44 Pursuant to the Sentencing Act, s 18(4), I declare that 671 days of imprisonment (inclusive of today) have been served by way of pre-sentence detention, and that this period be reckoned as a period of imprisonment already served. I shall cause that declaration to be noted on the records of the court.

45 I also declare that you are a serious violent offender and shall cause that declaration to be noted on the records of the court.

46 Section 6AAA of the Sentencing Act requires me to indicate the sentence I would have given but for your plea of guilty. I would have imposed a sentence of 24 years with a non-parole period of 21 years.

[1] The identity of Co-offender A is the subject of a suppression order.

[2] In written submissions, reference was made to the strength of the Crown's case being a relevant factor. However, there was no submission put to suggest why the Crown's case was anything other than a strong case. Cf R v Pajic [2009] VSCA 53; (2009) 23 VR 527, 532 [19]-[20] (Redlich JA, with whom Ashley JA agreed).

[3] [2016] VSC 670R.

[4] Walters v The Queen [2013] VSCA 164, [25] (Priest JA, with whom Maxwell P agreed); cf at [7], [9] (Coghlan JA, with whom Maxwell P also agreed).

[7] Following the separation of your parents about 10 years ago, you sided with your father, with your other siblings siding with your mother.

[8] Your father lives interstate. The court was informed that in addition to telephoning you from time to time, he has visited you in prison twice.

[10] [2007] VSCA 102; (2007) 16 VR 269.

[11] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610.2 (Gibbs CJ), referred to with approval in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ).

[12] R v Izzard [2003] VSCA 152; (2003) 7 VR 480, 483 [12] (Callaway JA, with whom Winneke P and Vincent JA agreed); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ), 501 [117] (Bell J, dissenting).

[13] [2016] VSC 168R, [3], [59]-[66], [75]-[76] (Emerton J).

[17] R v McPherson and Bennison [2007] VCC 1068, [7] (Judge Hart).

[18] Sentencing Act 1991 (Vic), s 6B(2).

[19] Sentencing Act, s 6D(a).

[20] Sentencing Act, s 6D(b).