DPP v Black [2016] VSC 564

2 You were arrested and charged on 25 May 2015. You pleaded not guilty and were committed for trial on 23 March 2016. You have spent over a year in custody on remand prior to trial.

3 Your trial in Morwell was conducted with efficiency and occupied the jury for eight sitting days - including deliberations - after some earlier legal argument was conducted in Melbourne.

5 You are the owner of a one-acre parcel of land at 61 McCartins Road, Turtons Creek, in South Gippsland. The land already had some shedding in place when you purchased it.

6 You are a bricklayer by trade with skills in building and landscaping and you acquired various building materials that you used to expand and develop the existing sheds. You also used the sheds to store vehicles, tools, art work and chattels.

7 You had been living in rented premises in Bentleigh and most of your work was in the Melbourne metropolitan area until a few months before May 2015.

8 Your building activities on the Turtons Creek property were not in keeping with the local shire building regulations, and came to the attention of the South Gippsland Shire Council officers tasked with the enforcement of building and planning regulations in that region.

9 In August 2013, Shire Council Building Surveyor, Matthew Patterson, together with another Shire Council officer, inspected the land and determined that a number of the existing sheds had been constructed without a permit.

10 In September 2013, a Building Notice was issued requiring you to show cause why the illegal works should not be removed. When the show cause period expired, you were issued with a Building Order for demolition of buildings constructed without a permit ('the demolition order').[2]

11 A Shire Council prosecution was brought against you for unlawful building work conducted on your land and works conducted on a neighbour's land. The matter was heard on 13 June 2014 in the Wonthaggi Magistrates' Court.[3] You pleaded guilty and were placed on a good behaviour bond for those matters and ordered to pay the Council's costs of $3000.

12 The Shire Council officers, including Mr Patterson, agreed to give you an extra six months to comply with the existing demolition order because you were living in Melbourne at the time and had lost your licence. This meant you had until the end of 2014 to comply.

13 You applied to the Shire Council, through Mr Patterson, for a number of additional extensions of the time allowed for compliance. These were granted in late 2014 and early 2015.

14 You disagreed with the Shire Council's position that all the sheds on your land were built without a permit and you argued that some of the existing structures had been built decades earlier. You debated this matter with Mr Patterson on a number of occasions but refused to allow him to conduct a further inspection to verify your claims. You also told Mr Patterson that you had complied with the demolition order to a significant extent by de-constructing the top two tiers of one of the disputed buildings.

15 On 1 May 2015, you sought a further extension of the demolition order. A final extension was granted with an indication that no further extensions would be permitted. Around that time, you suggested that Mr Patterson could inspect the sheds at a convenient time.

16 On 20 May 2015, you again tried to extend the period for compliance but that request was declined by Mr Patterson.[4] By then, you had developed a fixed and hostile view of Mr Patterson and blamed him for your predicament. You believed that you had been personally targeted by him. Some of this hostility seems to have flowed from the successful Shire Council prosecution of you, where you felt you had been singled out for unfair treatment. You brooded over these matters to an irrational extent. You had been drinking to excess, and could not sleep properly because of your anger and distress about the demolition orders. You believed that you stood to lose everything you had built up over the previous several years, including all your goods and chattels stored on the land. You worried that, as well as bulldozing all the sheds and contents, you would be ordered to pay the costs of the demolition and would be bankrupted and your land forfeited.[5] You had looked into a legal challenge to the Shire Council's orders but were ineffectual in putting anything into practice.[6]

17 On Friday 22 May 2015, you invited Mr Patterson to attend the property for an inspection. Mr Patterson agreed to attend on the following Monday morning of 25 May 2015, but felt uneasy because he had detected a change in your manner when you had made your inspection request. He asked a co-worker, Justin Eades, to accompany him for the inspection. Mr Eades had never met you and was not previously involved in your dealings with the Shire Council.

18 During the course of the weekend prior to the inspection, you continued to brood over your grievances against the Shire Council and against Mr Patterson personally. You decided to seek retribution against Mr Patterson for enforcing the demolition of the sheds on your property. You made plans to attack and kill Mr Patterson. You dug a shallow hole at Douces Track near a local camping spot about four kilometres away from your land at 61 McCartins Road. The dimensions of the hole enabled the inference that it was excavated for the purpose of disposing of Mr Patterson's body once you had put your plan to kill him into effect.

19 You had guests from Melbourne to stay over the weekend of 23 and 24 May 2015. Your fiancée, Amy Sacco, was also present that weekend. On Saturday, you obtained two bags of hydrated lime from a local landscaping supply company in Foster and loaded them into the rear of your Nissan Patrol vehicle. This was partly captured on CCTV cameras at that business premises. Your fiancée and a friend, Mr Kennedy, were with you when you obtained the lime and they were called by the Crown to testify to that effect. Ms Sacco and another friend also testified at trial that a barbecue had taken place at the Douces Track campsite on Sunday, the day before Mr Patterson's inspection, but that none of your group had noticed a hole such as the one discovered a short distance from the location of the campfire on the day after your arrest.

20 On Monday 25 May 2015 at just after 10 am, Mr Patterson and Mr Eades attended your address for the appointed inspection, parking their work vehicle in your driveway. All your weekend guests and your fiancée had left by that time.

21 Mr Patterson introduced Mr Eades as the new Shire Council enforcement officer who had taken over the role from the previous officer involved in your matter. You suggested to both men that the inspection could commence in a shed that was further into the property, explaining to them that you had removed the top storey. It should be said that your property is situated in a reasonably remote and heavily vegetated part of Victoria.

22 Upon entering the shed and after a short discussion with you, Mr Patterson began inspecting the shed whilst Mr Eades used a camera to photograph features of the joists.

23 Acting suddenly, and taking both men by surprise, you seized a piece of scaffolding piping which was close at hand and hit Mr Eades to the back of his head, causing him to stumble forward. You then swung the metal pipe at Mr Patterson at least three times, connecting with his head and ribs. Mr Patterson was better placed than Mr Eades to deflect your attack, so that the blows to his head were less injurious than they might otherwise have been.

24 You then confronted both men, brandishing your weapon whilst they stood at one end of the shed trying to reason with you. You told Mr Patterson that the only way he would be getting out of the shed alive was if he killed you.[7] You told him that he had ruined many lives, and that you were going to kill them both and no one would find their bodies.[8] At this juncture, Mr Patterson seized a nearby short-handled shovel. Mr Eades asked to leave the shed to get some fresh air. You agreed to this, but then in an act of cowardice, rather than letting him pass, you swung the pipe towards his head a second time, causing him to fall. Seeing this, Mr Patterson wielded the shovel and struck you on the back of your head.

25 During the scuffle that followed, Mr Patterson pinned you down onto the shed floor, giving Mr Eades a chance to escape.[9] Mr Eades was suffering the effects of the head injuries inflicted by you and was in no condition to run away, but managed to find his way out of the shed and up the driveway. Mr Patterson also escaped but realised that he had lost possession of the car keys in the shed.

26 You yelled after both men that you had a gun and would come after them and shoot them. You did not have a gun. You went to your car, a Nissan Patrol, and set off in pursuit of your two victims but lost sight of Mr Patterson, who had escaped into the thick scrub. After searching for Mr Patterson for a short time and when it was obvious to you that Mr Eades was in a bad way, you decided to help Mr Eades and gave him water to wash his wounds at a nearby water tank. It was then that you said to Mr Eades, 'You know I was trying to kill you back there.' You then drove him up the road and dropped him off outside your fiancée's family home where you knew that he could get further assistance.

27 You returned home to your own property, parking the Nissan Patrol under some trees off the main driveway, and took some rudimentary steps to prepare for the attendance of police. You did little to cover up the evidence of the assaults in the shed but did place the bloodied metal pipe and the bloodied short-handled shovel on a tarpaulin laid out in the rear section of the Nissan Patrol. The two bags of lime which had been obtained on the previous Saturday were on the back passenger seat of the vehicle under a jacket, and a muddy long-handled shovel was positioned near the lime when later examined by police. It is likely that the tarpaulin, long-handled shovel and lime were already in place prior to the assaults.

28 You telephoned your fiancée and your mother prior to surrendering to police and admitted that you had done a foolish thing. You then drank some wine and waited for police to attend.

29 The inference available to the jury was that you had made the car ready to receive the body of Mr Patterson prior to the Shire Council inspection, but did not necessarily expect Mr Patterson to attend the inspection with another officer. The excavation site at Douces Track dug in advance of the inspection was of a size and shape for one person's body. The jury did not need to rely on the evidence of the excavation site to be convinced that, at the time you attacked the two Shire Council officers, you intended to kill them both. However, it was circumstantial evidence that strengthened the inference that you had planned in advance to kill Mr Patterson.

30 The inference as to your intent to kill Mr Patterson and Mr Eades was open to the jury to make from the nature of the attack, the weapon employed by you, the severity of the injuries you inflicted, what you said to Mr Patterson at the time of the attack as well as the admission made to Mr Eades once you had cooled down and were trying to assist him.

31 The injuries suffered by both men were significant, but Mr Eades's injury was of a more serious nature. He was airlifted to the Alfred Hospital. On admission, he was diagnosed with bruising to both sides of the front of the brain, blood clots overlying the right side of the brain and pressure caused to the brain by the abovementioned conditions.[10] He also had a subtle but visible non-displaced linear fracture of the left occipital bone. He did not undergo surgery but was managed non-surgically with close observation.[11]

32 He was discharged on 5 June 2015 and was advised not to drive for some weeks due to the risk of a seizure. When a further CT scan was performed in July 2015, the bruising and blood clots had resolved. However, he was then diagnosed with post-traumatic stress disorder, post head injury cognitive deficits, anxiety and depression. He has anosmia and some ongoing pain in the head and neck.[12]

33 Dr Kow, the neurosurgery registrar at the Alfred Hospital who treated Mr Eades' injuries during his hospital stay and after, gave evidence at a Basha inquiry that persons who suffer traumatic brain injuries can experience post-concussive syndrome, manifesting various neuropsychological symptoms that can take days and up to months to recover from, if they do recover.[13]

34 Mr Patterson sustained three lacerations to his scalp, which needed suturing, and pain in the ribs. He was treated that day and then discharged.

35 You were arrested near your property on McCartins Road after you approached a police vehicle and told police that you were the offender. You advised them of the location where you had last seen Mr Patterson. You were then taken to the Foster police station for questioning in a recorded interview. After being cautioned and informed of your rights, your scalp injury was seen to and you participated in further interviewing at the Wonthaggi police station.

36 You told police about the background to the demolition order and said you had suffered depression, stress anxiety and insomnia as a result of the actions of the Shire Council and their prosecution of you.[14] You said that you felt persecuted by Mr Patterson.[15] You said that you had stayed up at nights with your fiancée reading regulatory legislation.[16] You said that you needed to get Mr Patterson up there that day because it was the end of the demolition order compliance period and that you needed him to see that you had demolished one shed completely but were seeking permission to keep some others. You said that Mr Patterson had earlier agreed to issue a permit for those existing sheds but had then reneged.[17]

37 You claimed that you knew in advance of the appointment that Mr Patterson would attend with someone from enforcement and not on his own. You said that when Mr Patterson used the phrase 'moving forward' when speaking in the shed about your future options, you lost control and used the pipe to attack both men in a rage.[18]

38 You said that after the two men escaped, you assisted Mr Eades and went looking for Mr Patterson to see if he was really hurt, and that you then returned home and drank some wine whilst waiting for police.[19] You said that you rang your mother and a lawyer before you were arrested.[20]

39 You did not deny your victims' accounts of being struck by you with the metal pipe or that you screamed abuse at Mr Patterson for ruining your life.[21] You claimed not to recall aspects of what had occurred in the shed due to the blow that you had received. You said the incident in the shed took about five to ten minutes.[22]

40 You blamed your recent heavy alcohol consumption, sleeplessness and anxiety for your memory problems and your crazy outbursts of rage.[23]

41 The day after your arrest and first police interview, the excavation site at Douces Track was noticed by a member of the public. It was described as 600 millimetres wide and 500 millimetres deep and of a perfect rectangular shape. Soil similar to that which was found at the excavation site was found on the long-handled shovel located in your vehicle, and on the work boots seized by police from your prison property.[24]

42 Central to your account in your interview and to the way your case was conducted at trial was the implication that the seizure of the metal pipe and sudden attack on your victims was a spontaneous response to a remark made by Mr Patterson, and that the assault was not premeditated.[25] The jury verdict implies a rejection of this position, although conviction on the two charges of attempted murder did not depend on such a finding. However, I am satisfied beyond reasonable doubt that your action in grabbing the nearby scaffolding pipe and attacking your two victims was the product of homicidal thoughts and pre-planning focused upon Mr Patterson prior to the inspection appointment.

43 I am not satisfied that any premeditated homicidal thoughts or pre-planning extended to anyone other than Mr Patterson before the arrival of the two men on site on the morning of 25 May 2015. It is not clear precisely when you formed the intent to kill Mr Eades, but it is possible that your decision to do so was a relatively spontaneous off-shoot of your original plan to kill Mr Patterson.

44 The plan to attack and kill Mr Patterson on the Monday morning during the appointed inspection and then to transport and bury his body in the pre-dug hole was aptly described by the Crown in their closing address as 'an absolutely crazy and irrational scheme'.[26] You had not obtained any particular weapon in advance to ensure the success of a planned killing, although you did lead your two victims to a shed which contained items of hardware and portions of scaffolding piping. Your brooding state of mind in the lead-up to your offending and your heavy drinking over the preceding weekend was described by you in your interview with police and referred to in discussions you had with others before and after 15 May 2015.

45 Subsequent to your arrest and remand in prison, you had a number of telephone conversations with your fiancée, Ms Sacco. These calls were recorded by the authorities and the recordings were obtained under warrant. The recordings revealed that you had become aware that police had been to the excavation site. You had been arrested wearing a pair of work boots which were lodged with the rest of your property at the prison. You were concerned the boots might link you to the excavation site. You asked Ms Sacco to retrieve the boots and dispose of them.[27]

46 Your plan was thwarted because police had already seized the boots. This conduct was the basis for the charge of attempting to pervert the course of public justice (Charge 6). The Crown argued that you did this with the objective of destroying evidence of soil remnants on the boots. The jury verdict convicting you of this charge indicates acceptance of that argument.

47 You were interviewed a second time on 1 February 2016 and gave a more detailed account of your activities over the weekend prior to the assaults. You told the police you had been drinking a lot over that weekend.[28] You gave an account that suggested that you had no opportunity to dig a hole at the excavation site but admitted that you had attended the campsite abutting the excavation site for a barbeque with your visitors on the Sunday of 24 May 2015 but had seen nothing amiss. You described the campsite as your usual barbecue site.[29]

48 You gave an account of buying the lime on 23 May 2015 to clean pipes for drop toilets and because of having a need for lime in your occupation as a bricklayer and stonemason.

49 In your two police interviews, you admitted to having assaulted your victims but denied harbouring more sinister motives when you attacked them in the shed at Turtons Creek and your defence at trial was consistent with this approach. However, there was convincing evidence before the jury that you had held a deep seated grudge against Mr Patterson and that the attack on him was pre-meditated.

50 A plea in mitigation was conducted on your behalf on 11 and 12 August 2016 and your sentencing hearing was initially listed on 20 September 2016. You withdrew your instructions to your legal representatives before that date and filed further written material to the Court whilst self-represented.[30]

51 You are 46 years of age and have prior convictions.[31] The most significant of your prior convictions include charges of intentionally or recklessly causing injury and false imprisonment which were dealt with in October 1997 when you were sentenced at the age of 27 to 3 months' gaol, suspended for 12 months. There were then further charges of recklessly causing injury and related offences which were dealt with in May 1999 when you were aged 28 resulting, inter alia, in a six-month gaol sentence, suspended for two years. Those matters occurred 17 years ago in the context of the breakdown of a turbulent relationship with your then partner.

52 The Crown submitted that your prior offending showed that you tend to resort to violence in response to crises in your personal life.

53 Regarding the offence of attempting to pervert the course of public justice (Charge 6), the Crown conceded that the manner in which you committed that offence placed its objective seriousness at the low end of the range, although the Crown argued that there should be some cumulation of the sentence for that offence. I am not persuaded that this offence should be dealt with through cumulation of the sentence in all of the circumstances of this case.[32]

54 Your conviction on two charges of attempted murder means that you are to be sentenced as a serious violent offender under part 2A of the Sentencing Act 1991 (Vic) for the second offence of attempted murder. The Crown did not submit that your sentence should be longer than that which is proportionate to the gravity of the offence, as permitted by s 6D of the Sentencing Act 1991 (Vic), but did submit that a proportion of the sentence imposed for the second offence of attempted murder of Mr Patterson (Charge 4) should be served cumulatively on the sentence imposed for the attempted murder of Mr Eades (Charge 1).

55 Going to your personal history, I observe that you had a difficult childhood due to being unable to settle down at school. You are one of two sons to your parents and were brought up in the south-eastern suburbs of Melbourne. Your mother was told that you were hyperactive and this may explain why you experienced severe bullying at school. You were ultimately transferred to a special needs school at the early secondary level and then transferred again to an 'open learning' school called ERA at the middle secondary level. Around the age of 15, you commenced a bricklaying apprenticeship at Collingwood TAFE.

56 Your family then relocated to Maldon. Family life had been marked by conflict between your parents and you regarded your father as a harsh disciplinarian. Your parents separated in your late teen years but you continued to gain education and experience in bricklaying, including heritage work and masonry. You began to subcontract your labour in the Bendigo region. Your work in heritage bricklaying is said to be highly skilled and you have always had subcontract bricklaying work available to you as an aside to other employment that you have undertaken.

57 At the age of 20, you decided to do a 12-month sound engineering course and, following completion of this course in 1992, you started working as a sound mixer for live music venues throughout Australia.

58 In 1994, you commenced a relationship with a woman who was also part of the live music scene and she bore you a son, Ben, in 1996. You were aged 26. The pair of you were both heavy drinkers in that period.

59 You returned to bricklaying in 1997 but the strains of your relationship with Ben's mother led to the assault charges and subsequent court appearances to which I have already referred.

60 You maintained skilled employment throughout your thirties and early forties, including in window and door installation and subcontracting to a steel design company on an ongoing basis.

61 You had a lengthy relationship with another woman and purchased the property in McCartins Road in 2009.

62 You then began a relationship with your fiancée, Ms Sacco. You helped support her through nursing training and she is now a registered nurse.

63 I was told by Ms Leighfield that you were consumed by anxiety over the Shire Council enforcement proceedings and had several visits to your local doctor in March and April 2015 to discuss your unstable mental health, insomnia, increased drinking and your efforts to save your property.

64 You spoke to your doctor on 6 March 2015 of having suicidal thoughts, feeling drained and of staying in bed for weeks because of your battle with the Shire Council.[33] You were referred on that date for cognitive behavioural therapy under a Mental Health Care Plan because of a diagnosis of 'mixed anxiety and depression and adjustment disorder'. The Mental Health Care Plan was ultimately not put into effect because your criminal offending intervened.

65 You were assessed by Dr Mathew Barth, psychologist, for the purposes of your plea in mitigation.[34] Dr Barth saw you on two occasions and reviewed your mental health, substance abuse, behavioural control, and risk of future violence. You spoke of your excessive drinking over the previous five years as a result of the demands of window installation subcontracting work and because of your dealings with the Shire Council.

66 You said you were drinking up to 16 standard drinks a night four times per week and needed to drink in order to sleep. This report of the degree of your alcohol consumption exceeds that which you gave to your general practitioner in March and April 2015, so I have some reservations that your drinking was to that level, but I accept that you were drinking excessively and that alcohol abuse partly explains your offending.[35] I also accept that your visits to your local doctors clinic were initiated with the aim of addressing your alcohol use and anxiety and depression.

67 Dr Barth diagnosed you with an Alcohol Use Disorder in early remission in a controlled environment by DSM-5 criteria. He also described your interpersonal and behavioural adjustment as problematic with prominent features of a narcissistic and antisocial personality disorder, although he did not diagnose you with that disorder. He described you as a rigid thinker and sensitive to perceiving unfair treatment by those in authority, whom you are inclined to regard as bullying you.

68 Your risk of future violence was assessed using the HCR-20 scale and you were seen to have a number of historical and clinical risk factors, although your risk management prognosis was more favourable due to the support of your family and your fiancée and other protective factors. You were assessed as needing extensive psychological intervention to avoid future alcohol abuse, assist with managing anger and stress and address problematic personality traits.

69 The jury verdict on the two charges of attempted murder represents convictions for very serious offending. Your assaults on your two victims have disrupted their lives and caused unnecessary pain and suffering to each of them and their family members.

70 The decision to attack two Shire Council officers in the performance of their duties must be denounced in the strongest terms. People are employed throughout Victoria in difficult and personally challenging roles which may sometimes lead to individual grievances. It is trite to observe that any such grievances must be pursued through legal channels and not through violent and destructive means. The prosecution rightly submitted that protection of the community is an important consideration in sentencing for offending of the kind you engaged in.

71 The victim impact statements in this case serve to underline the purposes for which punishment is required by law. The victims of your crimes will continue to experience trauma and worry for many years to come because of your actions.[36]

72 Justin Eades submitted a victim impact statement describing the impact of your crime. He has suffered ongoing sequalae including anosmia and cognitive deficits. The permanence or otherwise of these conditions will only become known in the future, although I did receive some more up-to-date information on 17 October 2016.[37]

Further neurological recovery may still occur although it is likely that the majority of recovery has occurred, Justin has capacity to improve his overall functional recovery through further multidisciplinary rehabilitation aimed at managing his cognitive difficulties.[38]

74 Mr Eades is currently unable to work in his chosen field of employment and is unlikely to be able to return to employment in that field. He depends on WorkCover payments in lieu of his previous earnings. He said the crime has impacted on his day-to-day enjoyment of life. He has become reclusive and avoids social events and is more reactive and moody. He feels physically and mentally hurt and angry that this happened to him just for doing his job.

76 He no longer goes hunting or four wheel driving for pleasure and gains no enjoyment from food due to the anosmia, leading to weight loss and lack of energy. He feels depressed and easily overwhelmed. He rues the effect on members of his family of the consequences of the assault.

77 His mother, Mandy Eades, says that she has also suffered great distress and anxiety over the harm inflicted on her only son. She and her husband have had to step up and support Justin through his outpatient treatment and rehabilitation, including driving him to and from medical and psychological appointments. This has impacted on their ability to conduct their business affairs and plan for the future.

78 Mr Eades's stepfather, Mr Schubach, describes the period since the attack on Justin as 'a nightmare.'

79 Mr Eades's wife, Merran Willems, describes her own fear and anxiety in the aftermath of Justin's admission to hospital and the disruptive impacts on their family life. She is conscious of the many ways that Justin is still suffering from the effects of the crime and is sad that they cannot have their old life back. She describes Justin as housebound and dependent and says she herself has needed counselling to cope with all the changes in their lives.

80 Matthew Patterson says that the attack affected his quality of life and he has not been able to make any long-term plans due to the court proceedings. He suffered pain in the ribs for several weeks after the incident and believes the attack negatively affected his outlook on life making him less confident and trusting. He feels uneasy about having asked his colleague Justin Eades to attend the inspection in light of what happened.

81 Matthew Patterson's wife, Carolyn Patterson, supported him throughout the committal and that trial, and she worries about him going out on-site by himself in case something untoward were to happen again in the future.

82 The Crown submitted that the relevant sentencing purposes in your case included general and specific deterrence, just punishment, denunciation, community protection and, to a lesser extent, rehabilitation.

83 The Crown also argued that based on the materials before the court your prospects for rehabilitation were moderate at best.

84 They submitted that you cannot gain much recognition for remorse or regret in circumstances where you contested guilt and never apologised for your crimes.

85 They also argued that the jury verdict expressed a rejection of the idea that you did not pre-meditate the assaults but simply snapped as a result of a spontaneous utterance by Mr Patterson.

86 However, they conceded that there should be some mitigation of your sentence because of the particular hardships you have suffered in gaol whilst on remand.

87 The Crown referred the Court to the attempted murder sentences of R v Rapovski,[39] DPP v Saltmarsh,[40] R v Quail[41] and R v Brew[42] and submitted that your offences are at least in the mid-range of seriousness for sentencing purposes.

88 Whilst the sentences referred to assist in indicating a generalised range for the purpose of discerning current sentencing practice, the factual background of each of those cases is quite different to your case.

89 Beale J in Rapovski reviewed the sentencing practice for the crime of attempted murder. Many of the available sentencing cases had their genesis in intimate or family relationships and presented a different range of considerations to your case. His Honour considered an array of sentences for attempted murder, some of which involved catastrophic injury to the victims, and also had regard to the Sentencing Advisory Council Sentencing Snapshot for Attempted Murder. I have reviewed those cases and the Sentencing Snapshot.[43] However, the Sentencing Snapshot relates to a relatively small cohort of cases.

90 As observed by his Honour, comparable cases only provide limited assistance, and each case ultimately must be decided on its facts. The use of this kind of material was also recently discussed in DPP v Zhuang.[44]

91 The objective features of the offences that you committed upon Mr Patterson and Mr Eades support the Crown's submission that they should be viewed as at least in the mid-range of seriousness. Your criminality is aggravated by the fact that you planned in advance to attack Mr Patterson, simply because of a grievance related to the way he was carrying out his role as a public officer. You took advantage of the fact that Mr Patterson and Mr Eades came on to your property in a somewhat remote area of South Gippsland to conduct the inspection.

92 General deterrence and denunciation are important considerations because of the need to discourage others from visiting their grievances about the administration of local laws on the individuals tasked with enforcing those laws.[45] The law treats crimes committed on a public person or a public official as particularly serious.[46]

93 Ms Leighfield did not dispute that the pre-planned targeting of a Shire Council officer was an aggravating feature of the offence of attempted murder, although your pre-planning was limited to Mr Patterson.

94 Both parties submitted that there should be parity of sentence for each offence of attempted murder because, although the charge concerning Mr Patterson involved a pre-planned attack on a Shire Council officer, his injuries were less serious than those of Mr Eades. On the other hand, Mr Eades suffered more serious injuries but was given assistance by you in the aftermath.

95 Ms Leighfield tendered a Defence Plea folder containing several certificates for courses you have completed in custody, medical and psychological material, references from friends and relatives, a letter written by you to the Court and an Outline of Defence Plea submissions.[47]

96 She called Mr John Challender, a retired mining consultant who volunteers as a prison visitor with Prison Fellowship Australia.[48] He testified as to your positive approach to the mentoring offered to you in prison.[49] He said that you had encouraged other prisoners in the fellowship group.

97 Ms Leighfield relied on the following main factors in mitigation of sentence:

(a) Firstly, your offending was not executed as part of a well-planned, rational scheme but was in part the result of a period of excessive drinking and unstable functioning, as was apparent from the records produced from your general practitioner and the explanations you gave to police.

(b) Secondly, your offending was mitigated by the physical assistance you offered Mr Eades in the aftermath, once you had regained your composure.

(c) Thirdly, regard should be had to your cooperation with the police and the substantial admissions to them and the expressions of regret and concern for the impact of your physical actions in striking each victim.[50]

(d) Fourthly, you could call in aid your strong and extensive work history prior to your arrest and your work as a yard billet in prison.

(e) Fifthly, you deserve recognition for the rehabilitative and restorative actions engaged in whilst on remand which include a number of self-development programs undertaken on remand and pursuit of mentoring from Prison Fellowship visitors.[51]

(f) Sixthly, you continue to receive strong support from family and friends in spite of your crimes and this will assist your rehabilitation.[52]

(g) Seventhly, you have endured significant hardship in custody as a result of the fear and chaos engendered during the prison riots and as a result of the disruption caused to your own circumstances in custody, including being targeted for assaults. This has ultimately led to you being transferred to the protection stream with more onerous conditions and fewer opportunities.[53]

98 Regarding the psychological material from Dr Barth and the Foster and Toora medical practices, Ms Leighfield did not seek specific reliance on Verdins[54] factors but underlined the relevance of Dr Barth's report in two ways.

99 Firstly, she focused attention on the contextual circumstances of your offending and the interaction of those factors with your particular background and personal disposition.

100 Secondly, she also underlined the importance of therapeutic treatment to address future risk and enhance progress towards rehabilitation. This, in turn, would meet the goal of community protection. She also submitted that, although you contested digging the hole and planning the attack on Mr Patterson, you did not deny assaulting both men and your trial was focused on the discrete issue of denial of the specific intent for attempted murder and a premeditated plan to kill,[55] as well as contesting Charge 6 of attempting to pervert the course of public justice.

101 I accept the submissions put forward by the Crown as to the aggravating features of your offending and the submission that the nature of your offending falls to be considered as at least within the mid-range of seriousness for the crimes of attempted murder.

102 There were some unusual features of the way you went about preparing for your attack on Mr Patterson that suggest that your planning was somewhat haphazard. This may be explained by the alcohol you were consuming over the preceding weekend.

103 The objective criminality is somewhat mitigated by the fact that you ultimately desisted from pursuing your victims, and instead provided significant assistance to Mr Eades in circumstances where timely access to emergency services was likely to be vital.

104 I accept the Crown's submission that you cannot gain much assistance from expressions of remorse and regret for the injuries that you inflicted in circumstances where you have disputed any aspect of pre-meditation. You have also continued to attribute blame to Mr Patterson for the lead-up to the offending.

105 I agree with the Crown's submission that as well as general deterrence, I should give some weight to specific deterrence and community protection, notwithstanding that your previous violent offending was many years ago, and you have managed since then to function reasonably well in spite of your drinking and your personality problems.

106 The sentence I am about to impose is your first term of immediate imprisonment and your remand in custody for these crimes has been your first experience of gaol. There is some merit in Ms Leighfield's submission that rehabilitation is an important consideration and I consider that community protection may be partly achieved through rehabilitative measures. It will be especially important for you to learn to address your alcohol abuse and to manage conflict without resorting to violence. I have borne this in mind in fixing your non-parole period, taking into consideration that your eligibility for parole and rehabilitation under conditional supervision will be able to be assessed at the expiry of the non-parole period.[56]

107 Your experience of gaol appears to have been very confronting for you. Ms Leighfield outlined the deleterious conditions that flowed from the prison riots at the Metropolitan Remand Prison on 30 June 2015. I was told by Ms Leighfield that this led to lockdown for three weeks and then only short periods of respite from lockdown for the following four weeks.

108 You were then transferred to Port Phillip Prison and were attacked by another prisoner in February 2016 after being accused of being an undercover police officer. This led to you entering the protection stream where your access to programs and advancement within the prison was more limited. You also claim to have experienced significant physical and psychological impairments since your imprisonment.[57]

109 Taking account of these particular hardships experienced during the period of your remand, I accept that I should moderate your sentence to some degree. I also accept that the hardship flowing from being placed on protection is likely to continue into the future.[58] I consider that your behaviour on remand provides an indication of moderate prospects for rehabilitation. I also make this finding in recognition of your solid work history prior to your arrest and the passage of time since your prior violent offending. The support of your family and friends will also assist you when you are ultimately released.

110 I am persuaded by Ms Leighfield that the factors she advanced in mitigation have merit in reducing the total sentence to be imposed, although I give little weight to the expressions of regret made after you were arrested.

111 In balancing the objective seriousness of your crimes with your personal circumstances and the factors put forward in mitigation and taking into account the effect of your crimes on your victims, I am persuaded that there is a basis for allowing a measure of concurrency between the sentences imposed for Charge 1 and Charge 4. Your assistance to Mr Eades in the aftermath of the offences is particularly important in this respect, as is the absence of pre-planning relevant to him.

112 In considering ss 6B and 6D(a) of the Sentencing Act 1991 (Vic) and the requirement to sentence you as a serious violent offender on Charge 4, I must regard protection of the community as the principal purpose of sentencing in respect of that charge. Although I am entitled to sentence you to a disproportionate sentence on that charge, the Crown has not sought to persuade me that I should do so, and I decline to do so.

113 Because I must sentence you as a serious violent offender on Charge 4, s 6E of the Sentencing Act 1991 (Vic) provides that the term of imprisonment on that charge must be cumulative on any other sentence of imprisonment unless otherwise ordered.[59] In deciding to order a measure of concurrency between the sentence imposed on Charge 4 and the sentence imposed on Charge 1, I have taken into account the extent to which the offences arose out of the same transaction, and were committed within a very short span of time,[60] although impacting each victim individually.

114 I have also taken into account the principle of totality. The Court of Appeal said recently in DPP v Clunie:

Whilst s 6E of the Sentencing Act 1991 must be regarded as moderating the effect of the principle of totality as it applies to [serious offenders], nevertheless that principle remains relevant.[61]

115 I am also bound by the principle of parsimony, which finds expression in s 5(3) of the Sentencing Act 1991 (Vic), not to impose a sentence that is more severe than that which is required to achieve the purposes of sentencing.

116 In structuring your sentence, I have allocated an appropriate sentence for each charge and relied on the order for concurrency as the proper means of having regard to the principle of totality.[62]

117 In conclusion, whilst paying heed to the purposes of sentencing you as a serious violent offender and to the submissions of both parties, I do consider it appropriate to direct a measure of concurrency between the sentences imposed on Charge 1 and Charge 4. The Crown did not seek to suggest otherwise.

118 Regarding Charge 6, I regard it as unnecessary to cumulate any part of the sentence imposed on that offence, because of the derivative nature of that charge arising from the other two charges.

119 On Charge 1 of attempted murder of Justin Eades, I sentence you to eight years' imprisonment.

120 On Charge 4 of attempted murder of Matthew Patterson, I sentence you to eight years' imprisonment. I direct that four years and six months of the sentence imposed on Charge 4 be served concurrently with the sentence imposed on Charge 1.

121 On Charge 6 of attempting to pervert the course of public justice, I sentence you to imprisonment for three months, which is to be wholly concurrent with the aforementioned sentences.

122 On the total effective sentence of 11 years and 6 months' imprisonment, I fix a minimum non-parole period of 7 years and 6 months.

123 I declare that I have sentenced you as a serious violent offender on Charge 4 pursuant to s 6F of the Sentencing Act 1991 (Vic), but I am not imposing a disproportionate sentence as a result of that declaration.

124 I declare that you have served 518 days of pre-sentence detention, excluding today.

[1] Crimes Act 1958 (Vic) ss 320 & 321P.

[2] Transcript of Trial, DPP v Black (Supreme Court of Victoria, S CR 2016 0032, Jane Dixon J, 14-24 June 2016) ('Trial transcript') 82.

[3] Mr Patterson said that the Shire Council gets hundreds of complaints a year for illegal works but probably only three or four per year are prosecuted: Trial Transcript 82-3.

[5] These concerns were disclosed in your police interview after your arrest. See also Transcript of Plea, DPP v Black (Supreme Court of Victoria, S CR 2016 0032, Jane Dixon J, 11-12 August 2016) ('Plea Transcript') 32-5.

[6] Approaches to the Ombudsman in February 2016 were unproductive owing to your failure to lodge a timely appeal from the original building notice: Plea Transcript 33-4.

[9] Mr Eades also had a recollection of hitting you with a shovel at this point.

[10] Bi-frontal parenchymal haemorrhagic contusions with a 6 mm right anterior cranial fossa subdural hematoma and a 9 mm leftward midline.

[11] Mr Eades and Mr Patterson's injuries were the subject of a statement of agreed facts tendered by the Crown as Prosecution Exhibit 14. The Court accepted the tender of further medical and psychological reports on 17 October 2016 in respect of Mr Eades's anticipated recovery.

[12] Prosecution Exhibit 14 (Statement of Agreed Facts).

[13] Transcript of Basha Inquiry, DPP v Black (Supreme Court of Victoria, S CR 2016 0032, Jane Dixon J, 7 June 2016) 170.

[14] Police Record of Interview on 25 May 2015 ('ROI') Q&A 99 and 100.

[17] ROI Q&A 125-141. Mr Patterson had agreed that he might have amended the demolition order if you could have proved the longstanding existence of any of the subject structures: Trial Transcript 114.

[22] ROI Q&A 375. This time estimate was in keeping with other evidence in the trial.

[24] The Crown called expert evidence from Professor Robert Fitzpatrick on soil comparisons between the shovel found in your car, your boots and the excavation site.

[27] Arunta call dated 15 June 2015 (Prosecution Exhibit 10).

[30] See Transcript of Proceeding, DPP v Black (Supreme Court of Victoria, S CR 2016 0032, Jane Dixon J, 20 September & 17 October 2016); Defence Exhibit 2 on the plea (Material tendered by Mr Black).

[31] See Criminal Record; Defence Exhibit 1 on plea (Defence Outline of Submissions on Plea).

Your convictions appear to breach a suspended sentence of 14 days' imprisonment for a previous driving offence but the parties did not request that I deal with that matter.

[32] The evidence supporting Charge 6 was also relied on as post-offence conduct in proof of the other charges.

[33] The record of your attendances at the Foster and Toora medical centres was tendered as Tab 3 in a Defence Plea Folder tendered on your behalf (Defence Exhibit 1 on the plea).

[34] Report of Dr Mathew Barth dated 5 August 2016 (Tab 2 of Defence Exhibit 1 on the plea).

[35] A number of your referees mentioned your increased and uncontrolled drinking in the lead up to your crimes. Dr Barth did not have the notes from the Foster and Toora medical centres or the personal references as material available to him when he prepared his report. He was subsequently supplied with that information but stated that the information did not change his diagnosis or formulation of your offending and hence no updated report was needed: Defence Exhibit 4 on the plea (Email from Dr Matthew Barth to Jennifer Taylor on 17 Oct 2016).

[36] Prosecution Exhibit 1 on the plea (Bundle of victim impact statements).

[37] Prosecution Exhibit 2 on the plea (Further reports in relation to Justin Eades' injuries).

[39] [2015] VSC 359 ('Rapovski').

[40] [2013] VSCA 290.

[41] [2013] VSC 190.

[42] [2013] VSC 131.

[43] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends for attempted murder in the higher courts, 2001-2002 to 2005-06, No.21, January 2007. The SAC states that the median length of imprisonment term imposed was 11 years while the median non parole period was eight years.

[44] [2015] VSCA 96 [30]-[36].

[45] See R v Turnbull (No 26) [2016] NSWSC 847.

[46] Ibid [77]; see also DPP v Arvanitidis [2008] VSCA 189 [4].

[48] Mr Challender also submitted a written testimonial which was included in Defence Exhibit 1 on the plea.

[49] Tab 6 of Defence Exhibit 1 on the plea; Plea Transcript 39-40.

[50] Ms Leighfield referred, especially, to concern and regret you expressed to police after arrest and subsequently in conversations with your mother and fiancée: See Plea Transcript 57-8.

[51] Prison Fellowship Australia 'Change on the Inside' six-week program, Corrections Victoria 'Coping Inside - Managing Emotions' program'; Kangan Institute module on food safety.

[52] She emphasised aspects of the testimonials that spoke of your past good works.

[53] The deleterious conditions you have experienced on remand were discussed in a letter you wrote for submission on your plea (Tab 13 of Defence Exhibit 1 on the plea) and submissions made on your behalf: Plea Transcript 36-8, 65 and Outline of Defence Plea submissions.

[54] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[55] You signed a statement of agreed facts and your trial was conducted with economy.

[56] R v Bernath [1997] 1 VR 271, 278.

[57] See Transcript of Proceeding, DPP v Black (Supreme Court of Victoria, S CR 2016 0032, Jane Dixon J, 17 October 2016) 26.

[58] R v Rostom [1996] VicRp 60; [1996] 2 VR 97.

[59] This means that I must expressly direct concurrency for any portion of the sentence imposed on Charge 4.

[60] The incident lasted less than 10 minutes.

[61] DPP v Clunie (a pseudonym) [2016] VSCA 216 [35].

[62] Hudson v The Queen (2010) 30 VR 610, 629 [59], cited in DPP v Clunie (a pseudonym) [2016] VSCA 216 [37].