DPP v Bogart-Mott [2017] VSC 262

2 The prosecution case, which you have admitted by your plea, is that on the evening of 18 March 2016, you alone, or with others, engaged in a sustained and violent assault on Sam Dunne in your home over a drug debt of $100 owed to you by Dunne, as a result of which he sustained injuries from which he died the next day in hospital.

3 At the time of the offence, you were living in a house in Crown Street, Flemington. A few months previously, in late 2015, Sam Dunne had moved into an apartment in Footscray, and he met you while he was living there. In due course, you supplied him with methylamphetamine (commonly referred to as 'ice'). At times you supplied those drugs to him on credit, and he would later pay you back.

4 Sometime after he moved into the Footscray address, Sam Dunne struck up a friendship with Nathan Tolley, who lived with his girlfriend in the same apartment complex. Approximately one week before 18 March 2016, Tolley and Sam Dunne visited you at your house in Flemington. After they arrived there, Sam Dunne gave you some money in exchange for some drugs that you supplied to him. You handed the money to a girl who was in the kitchen. Dunne and you then used the drugs at your house.

5 About a week later, on 18 March, Nathan Tolley again met up with Sam Dunne. Later on that day, Tolley drove Sam Dunne to your house. When they entered, the same girl was present as on the previous occasion. You gave Dunne a small bag of ice, and he put some of it in a glass pipe. Having used the pipe, he then passed it to Tolley, but it broke as he did so. Nathan Tolley apologised to you and told you that he would replace the pipe.

6 Tolley and Dunne then left your home, and returned to the apartment complex in Footscray. There, Nathan Tolley took Sam Dunne's pipe from his apartment, and drove to your house in Crown Street to give it to you. When Tolley arrived there, you were on the telephone, and Tolley gained the impression that you were then speaking to Sam Dunne, asking him if he was coming over. You then asked Tolley if he was going to pick up Dunne, and you and he both left together in Tolley's car and went back to Footscray to collect Sam Dunne.

7 When you arrived there, you asked Sam Dunne if he had the money that you said he owed to you. He responded, aggressively, that he did not owe you anything, and that he had given the money to the girl who was there. You then made a telephone call, and asked the person on the other end if Sam Dunne had given any money to the girl at your house. After completing that phone call, you told Dunne that he had not given the girl any money, and an argument ensued between Sam Dunne and yourself over your claim that he owed you $100 for drugs that you had supplied to him.

8 Nathan Tolley then drove you and Sam Dunne back to the Crown Street premises, where you arrived at about 7.00 pm. You and Dunne alighted from the vehicle and walked into your home. After some hesitation, Tolley left.

9 Sometime after you and Sam Dunne entered the Crown Street house, you violently assaulted him, and forced him to hand over his Commonwealth Bank Mastercard and the personal identification number to access his bank account. At 7.22 pm, Tolley received a telephone call from Sam Dunne, in which he could hear Dunne yelling at someone 'you got my keys and you got my wallet'. Tolley told Dunne to leave. However, Dunne did not respond to him.

10 Subsequently, at 8.09 pm, you were captured on CCTV walking along Racecourse Road to the Newmarket Plaza Shopping Centre. You were then captured on CCTV footage at several points along that road approaching and accessing a Commonwealth Bank automatic teller machine. You entered a liquor store, where you withdrew $35 from Sam Dunne's account by using his card, and you purchased some alcohol for which you paid cash.

11 At approximately 8.30 pm, you attended the Flemington Police Station to report on bail for another matter. The police officer, who spoke to you, observed that you had blood on the back of your grey top. You were also captured on CCTV footage at the police station removing blood stains from your knuckles as you waited for police to attend to you at the counter.

12 At 8.59 pm, you telephoned your sister Samantha. During that telephone call, you sounded panicked. You told your sister that you had got into a fight with a person over money, that that person had been passed out for around 30 minutes, and you did not know what to do. She told you to call an ambulance, but you replied that you did not want the police to get involved. You also mentioned to her that the other person was tied up, because you were worried that he was going to run away and 'snitch' to the police about the fight. You said that the other person was 'out cold', but that he was still breathing. Your sister instructed you to untie the person and to telephone an ambulance. At that stage, your sister was unsure whether you were telling her the truth in the telephone call, as you had been given to making fanciful calls to her in order to gain her attention and obtain money from her.

13 Nevertheless, at 9.12 pm your sister sent you two further text messages, urging you to call an ambulance. You responded with a series of texts stating that you had not called the ambulance, and that the other person was 'cold' and 'tied up'. You also said that you could not call the police. She then telephoned you at 9.27 pm and asked you if you had called the ambulance yet, and you said you were going to do so. At 9.31 pm you telephoned 000 and requested an ambulance be sent to your address.

14 In the meantime, you had also exchanged a series of text messages with a friend, who you had met on Facebook. At 9.17 pm, you sent her texts, including one which said 'I think I killed my friend I'ge calling the ambulance now just waiting ... I think I'm gonna go to jail, I'm worried I'm going to get arrested when the ambulance gets here ... he started the fight'.

15 When the ambulance arrived shortly after 10.00 pm, the MICA paramedic observed Sam Dunne lying in the front hallway with his feet towards the front door, and a hole in the plaster wall of the hallway, that was approximately 20 centimetres in diameter, about one metre above floor level. There were blood stains and blood stained items throughout the house, including in the kitchen, living room and hallway. A saucepan, which was missing its handle, was located in the front bedroom with blood spatter stains on it. You told the MICA paramedic that you had beaten the patient's head into the exposed brick wall several times and then into the plaster wall where the hole was located. You said that that had happened at about 9.15 pm that evening.

16 You also told the police, who attended at the same time, that you had caused the injuries to Sam Dunne, and that you had done so by putting his head into the wall and punching him with your fists. After being cautioned by the police, you said that Dunne owed you money, that you asked him for it, and when he responded that he was not going to give it to you, he started to walk towards the hallway, whereupon you threw his head into the wall and punched him. You said that you had left him there for about 30 minutes, then you thought you had better not let him die, so you called the ambulance. At one point, you told the police that Sam Dunne had hit you first and then you hit him back.

17 Sam Dunne was unconscious at the time the ambulance arrived at the scene. He was unable to breathe on his own, and he had to be intubated on arrival at the Royal Melbourne Hospital Emergency Department. He underwent an emergency craniotomy to remove a piece of his skull, and to remove a subdural haematoma in order to relieve the pressure on his brain. In addition to the haematoma, he had extensive secondary brain swelling and hypoxic ischaemic injury. He was placed on a ventilator in intensive care. He had suffered multiple bruising and abrasions to his face, chest, abdomen, arms and his right foot. There was also a fracture to the right side of his maxillary sinus. His medical prognosis was bleak, and he passed away on the next day after medical support was withdrawn.

18 You were arrested on the same evening and conveyed to Moonee Ponds Police Station, where you were interviewed. In the course of the interview, you told police that you were not present when Sam Dunne was assaulted. You said that after you had reported to the police station, you had some drinks, and when you returned home, Sam Dunne was on the floor and was injured. You said that you called the ambulance. You also told police that other people were present at your home when you had gone out, but they had left by the time you returned home. You said that you had initially taken the blame for Sam Dunne's injuries, because you did not wish to get bashed for being a 'snitch'. You also said that Sam Dunne did not in fact owe you money, that you did not have a fight with him, and that he was your friend.

19 On the same evening you were charged by police, and you have remained in custody since. During your time in custody, you have made a series of telephone calls to friends which were monitored and recorded. In the course of those telephone calls, you told your friends that you had killed Sam Dunne. In one call, you told a friend that you were 'bashing' Dunne 'for ages'. In another phone call, you stated that you bashed Dunne 'for, like, two hours' and that you were 'terrorising' him. You said you repeatedly hit him and dragged him from one side of the room to the other.

20 There is no eyewitness who has given an account of the precise circumstances in which you killed Sam Dunne. There are indications, in the depositions, that some other youths may also have been involved in the fatal attack on him. Accordingly, the prosecution has acknowledged that it cannot exclude the possibility that other people may have been involved in the assault on Sam Dunne. However, the evidence satisfies me, beyond reasonable doubt, that you were the instigator and leading actor in the assault, and that you were complicit in the conduct of any other person who assaulted Sam Dunne. I should add that the fact that other persons may have been involved in the assault does not reduce, or affect, the level of your culpability for killing Dunne.

21 There was also some evidence in the depositions that other persons might have assaulted Sam Dunne, separately to you, while you were visiting the shops and reporting on bail between 8.00 pm and 9.00 pm. That evidence is principally contained in the testimony given by a neighbour, in a preliminary hearing in which he was compulsorily examined. It is not possible to form any conclusion as to whether or not that separate assault, independent of you, took place. By your plea, you have accepted that it was your unlawful and dangerous act or acts, in assaulting Sam Dunne, which caused his death. The fact that he might have been subjected to some intervening assault, if that occurred, is not relevant to an assessment of your culpability, or to any other consideration that is material to the determination of your sentence.

22 The crime to which you have pleaded guilty, that of manslaughter, is of itself a very serious offence. The maximum sentence for the offence is 20 years' imprisonment. In this case, you subjected a wholly innocent person, who you had invited to your home, to a brutal beating, which you launched on him when he resisted your claim that he owed you a relatively small amount of money for a drug debt.

23 There were a number of aggravating factors attaching to your offending. In the first place, you had no reason or justification to attack Sam Dunne at all, let alone in the manner in which you did. The fact that you did so to extract from him payment for a drug debt is, I consider, an aggravating feature of your offending. Secondly, you attacked Sam Dunne after you had invited him to attend at your home. Thirdly, having attacked him, you subjected him to a prolonged and brutal assault. Fourthly, your conduct during and after the assault was callous and cruel. You left a mortally injured man lying in your home while you attended shops, stole money from his bank account, and reported for bail. Fifthly, after you returned home, and notwithstanding your sister's firm insistence that you do so, you delayed seeking much needed medical help for Sam Dunne, because you were only interested in your own self-preservation. Sixthly, you committed the offence while you were on bail on a number of charges, which included recklessly causing injury. Each of those factors, separately and taken together, aggravate the gravity of the offending by you in this case.

24 The principal victim of your crime was, of course, Sam Dunne. He was a young man, 24 years of age, who, like you, stood on the threshold of adult life. Sam Dunne did have his problems, but he had struggled commendably to overcome them, and he was on the road to recovery. He was a talented sportsman who, if not for your criminal actions, would have gone on to live a productive, fulfilling and worthwhile life.

25 There are, of course, other victims of your crime. I have read, and re-read, the victim impact statements, and listened to the recordings of Sam's two younger brothers as they read their statements. Parts of the statements were read aloud, and the recordings were played, in the course of your plea. By your crime, you have taken from Sam Dunne's family a much cherished and beloved son, brother, grandson, nephew and cousin, and you have deprived his friends of a valued companion. You have left an irreparable gap in the lives of many people. The grief, anguish and pain they have suffered is a direct, and inevitable, consequence of the type of offence that you engaged in. I have no doubt that the close members of Sam's family, and in particular his parents and brothers, will bear the pain and anguish of his tragic loss throughout their lives.

26 I am relating these matters to you in my reasons for sentencing you, not because it is my task to decide the case according to emotional considerations such as sympathy or retribution, but in order to properly describe and acknowledge the impact and enormity of the crime that you have committed.

27 In terms of your antecedents, you were born on 1 April 1997, and therefore at the time of the offence you were almost 19 years of age. You have been dealt with before in the Children's Court on a number of previous charges, each of which were for quite minor offences. They include three separate charges for the use or possession of methylamphetamine, and one charge for the possession and use of cannabis. A number of the other charges were for offences of dishonesty, or for public behaviour. In March 2015, you were before the Melbourne Children's Court for driving offences, and other offences including assault police, wilfully trespass in a public place and use threatening words in a public place. In all of those cases, you were either placed on a good behaviour bond, released on probation, or fined, without conviction. In the context of the present case, I do not consider that your prior convictions are of any particular significance.

28 On the other hand, your personal circumstances, and your history, are of particular significance in this case, because they reveal a number of substantial mitigating factors that need to be taken into account in determining your sentence. In that respect, I have been assisted by the plea made by your counsel, and by a number of the references tendered on your behalf, and, in particular, that of your sister Samantha. In addition, your sister gave evidence on your plea. I was very impressed with her evidence, which I have no hesitation in accepting.

29 It is no understatement to say that you have had a particularly traumatic and tragic upbringing. You were the youngest of three children of your late mother. You have an elder brother, and an elder sister. Your mother separated from your father when you were an infant. However, after their separation, you had access visits to your father each weekend. From a very young age, you were subjected to physical, emotional and sexual abuse by your father during those visits. He threatened you with a knife not to disclose the abuse to anyone. I hasten to add that the person, who abused you, is not the father of your two siblings. Your sister Samantha has described the abuse, which was ultimately revealed by you, as 'constant and horrific'. You did not disclose the abuse to anyone, until you told your mother about it when you were eight years of age, whereupon your mother swiftly put an end to any further contact by your father with you.

30 As a result of the abuse, you had counselling sessions with a psychologist at a special unit at the Royal Children's Hospital. A successful claim was made to Victims of Crime Assistance Tribunal to fund treatment for you. You were also interviewed by the police. However, it is evident that, understandably, you were substantially more forthcoming in describing the abuse, to which you had been subjected, when you spoke to your mother and to the psychologist, than when you spoke to the police. I have no hesitation in accepting the evidence, given by your sister in that respect, that the abuse did occur in circumstances which could only have had grave and long lasting detrimental consequences for your development and for your emotional wellbeing. The devastating impact, and permanent damage, that can, and commonly does, result from such abuse, as was inflicted on you, is well recognised and understood by the courts.

31 Your difficulties were compounded when, shortly after you told your mother about the abuse, she was diagnosed as suffering from terminal bowel cancer. The disease was aggressive, and the treatments administered to her did not halt its advance. Your mother succumbed to the disease when you were just 11 years of age. As your older brother, Alex, has stated, from the age of eight years, you watched your mother slowly die before your eyes, you saw the cancer treatments and the effects of them, and you saw your mother progressively get worse over the three years during which she fought the disease. At that time, you told your sister, Samantha, that you blamed yourself for your mother getting cancer because of the stress from your revelation to her of the sexual abuse that you had endured at the hands of your father. Samantha, who knows you well, has expressed the view that, throughout your teenage years, you never properly came to grips with, or dealt with, the horrific life events to which you had been exposed, and which I have just described. She said that you buried the pain from what you had experienced, and she considered that, in your teenage years, you started consuming drugs as an escape from your painful experiences.

32 After your mother passed away, you, together with your elder brother Alex, lived with your sister, who assumed the role of a carer for you. Your sister has been a constant, loyal and supportive figure in your life, and her dedication and devotion to you has gone well beyond that normally expected of a sibling.

33 Apparently you were often in trouble at school, and Samantha states that you spent your time with 'the wrong crowd', and that you started experimenting with drugs such as marijuana and methylamphetamine. From 2012 to 2016, you were enrolled with St Joseph's Flexible Learning Centre in North Melbourne. In 2014, you completed a pre-apprenticeship course in carpentry about which you were then quite enthusiastic. At the time of your arrest, you were undertaking a VCAL course at the college.

34 However, during that period, your circumstances continued to deteriorate, due to the effects of your escalating drug habit. In early 2015, when you were 17 years old, your sister gave you an ultimatum that you either attend a drug rehabilitation clinic or move out of her home. She took that course in order to try to persuade you to seek treatment for your problem. However, you declined to do so. You moved out of your sister's home, and were homeless for about six months. Ultimately, you secured some supported housing in Flemington, where you resided at the time of the offence.

35 As a result of your escalating drug habit, you suffered an episode of drug induced psychosis at the end of 2015. As a consequence, on 14 November 2015, you were admitted to Orygen Youth Health Inpatient Unit as an involuntary patient. You were diagnosed with first episode psychosis and substance use disorder. You were commenced on anti-psychotic medication. Due to concerns about non-compliance with medication, you were commenced on a depot anti-psychotic, which was to be administered to you every four weeks.

36 You were discharged on a community treatment order on 3 December 2015. By then, your symptoms had improved slightly, but you were still suffering symptoms of paranoia. On discharge, you were subject to medication supervision by your youth access team. However, that team was not always successful making contact with you, and you did not attend a number of scheduled appointments with your outpatient treatment. You were reluctant to attend appointments for your monthly depot medication, and you had limited tolerance for those appointments. You were last seen by your case manager on 12 February 2016, and your last depot injection was administered on 15 March.

37 From 2014 until the time of the offence, Mr Tom Mason, the head of Wellbeing of St Joseph's Flexible Learning Centre, worked with you in his role as youth worker. In his testimonial to the court, Mr Mason states that in the period leading up to the day of the offence, you often spoke to him about a group of men staying at your home who refused to leave. You told him you were very scared of those people, and that you would not tell the police about them because of fear of retribution. Mr Mason considered that that environment in your home made it difficult for you to engage in the treatment with Orygen Youth Health, so that your mental health deteriorated and your drug use increased during that time. Mr Mason expressed the view that your ability to make decisions at the time of the offence was incapacitated by your drug use and by the circumstances in which you were then living.

38 Recently, on 30 March 2017, you were examined by Dr Danny Sullivan, a consultant forensic psychiatrist, at the request of your solicitors. Dr Sullivan noted the treatment that you had received from Orygen. He also noted that Dr Clare McInerney, the psychiatrist who has examined and treated you while you have been in custody, had concluded that you have a persisting diagnosis of schizophrenia. Dr Sullivan came to the same conclusion, namely, that you have an established diagnosis of paranoid schizophrenia, and that you require ongoing medication. He also noted that, at the time of the offence, you had used cannabis and methylamphetamine. He considered that there was no clear information suggesting that you were suffering from psychotic symptoms at the time of the offence. Thus, he came to the view that your mental functioning was not impaired at that time by psychotic illness, although your judgment was likely to have been impaired, and your conduct disinhibited, through intoxication with cannabis and stimulants.

39 Ordinarily, the fact that an offender is intoxicated at the relevant time does not mitigate the seriousness of the offending, or the offender's culpability for it. The fact that an offender chooses to become intoxicated does not reduce that person's responsibility for his or her own actions. However, and importantly, it is recognised that where an offender's conduct is causally related to profound childhood deprivation or trauma experienced by the offender, that circumstance may mitigate the sentence, because that person's culpability for the offending is likely to have been less than that of a person who has had the benefit of a normal and stable upbringing.

40 Those propositions were recently stated, in 2013, by the High Court in its decision in Bugmy v The Queen.[1] In that case, the Court was concerned with an offender, who had been raised in a community in which alcohol abuse and violence was rife. However, the principles stated by the High Court apply equally to an offender, such as yourself, who has been raised in the traumatic circumstances that I have outlined. It is appropriate that I quote two passages from the judgment of the High Court where those principles are stated.

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[2]

42 In the second passage, a little later in its judgment, the Court went on to say:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. ... An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.[3]

43 The circumstances of your childhood and upbringing, described by your sister and brother, and the report of Mr Mason of St Joseph's Flexible Learning Centre, make it clear that those principles apply in your case. You had not resorted to the consumption of drugs as a lifestyle choice. Rather, I am well satisfied that the circumstances of your childhood played a significant, and indeed principal, causative role in your resort to illicit drugs in your early teenage years, and in shaping your reactions to the type of situation in which you resorted to lethal violence in committing the offence for which I am to sentence you. To paraphrase a passage from a leading judgment of the Court of Appeal of this State,[4] to ignore the background factors of your childhood and adolescence would be to sentence you as someone other than yourself. In that way, your background circumstances are relevant to a proper assessment of your moral culpability for the offence to which you have pleaded guilty.

44 In addition, there are a number of other mitigating factors, personal to you, which are to be taken into account in determining your sentence. On the plea hearing, an issue arose as to whether you have expressed genuine remorse for the fact that you have taken the life of a young man to whom you professed to be a friend. Your sister Samantha gave evidence that when she told you that Sam Dunne had died, you were very distraught and you cried uncontrollably. Until recently, Samantha has been visiting you weekly while you are in custody. In her evidence, she stated that, during those visits, you have shown great remorse for what you have done, and that you have told her that Sam was a good person. You have spoken at length with her about Sam's family and friends, and the profound impact that his death must have had on them. After you came face to face with Sam's family and friends at the committal hearing, you were profoundly shaken, and your sister considers that you are currently suffering depression due to your realisation of what you have done. The testimonials of your brother Alex, your stepbrother Benjamin, and Paul Cook, a family friend, also speak about your remorse. In the plea hearing, a letter, written by you, was read aloud and tendered. In that letter you expressed your regret and shame for what you have done.

45 On the other hand, it is difficult to detect any remorse in the telephone calls that you made to your friends from prison during the first two months of your incarceration. At some points, you have acknowledged that you 'messed up'. However, most of your expressions of regret, during those telephone conversations, related to your predicament, and not to what you had done to Sam Dunne.

46 The fact, that you might be sorry for your current predicament, is not, of course, necessarily inconsistent with you experiencing genuine regret for taking Sam's life. As I stated, I am particularly impressed with the evidence of your sister, Samantha. She knows you better than any other person. She told me that you are a person who tends to bottle up your true feelings. On the balance of probabilities, I am persuaded that you do feel genuine, and deep, remorse for taking Sam Dunne's life, and for causing so much suffering and sorrow to his family and those closest to him. My assessment of the evidence of your sister, and of the testimonials, in that respect, is fortified by my observations of you, particularly while Sam's parents each read their very moving victim impact statements in court. I accept that it is always possible for reactions, such as yours, to be feigned rather than sincere. Nevertheless, my observations of you at that time were consistent with the description given to me by your sister of how you felt about the pain that you had caused to Sam's family as a result of your violent actions.

47 Allied to that remorse are the commendable steps, that you have already undertaken towards your rehabilitation while you are in prison. You have successfully completed a number of courses, each of which are directed to helping you develop the necessary skills that will enable you to re-enter society when you complete the term of imprisonment that I am to impose upon you. You have told your sister that you want to change your life, and to remove yourself from the circumstances, in which you lived at the time of the offending. You have worked as a cleaner, gardener and welder in prison. A series of random drug tests undertaken on you have all produced negative results for consumption of any illicit drugs while you have been in jail.

48 The steps that you have taken to rehabilitate you are a mitigating circumstance, and indicate that you have some insight into the fundamental causes of you becoming involved in the type of incident in which you killed Sam Dunne. They also augur well for your rehabilitation after you have completed your term of imprisonment, and are relevant to the issue of specific deterrence. In addition, you have the loyal committed support of your sister, brother, and other family members and friends, which will assist in your rehabilitation after you have completed your term of imprisonment.

49 I have received a number of testimonials from family members and friends, some parts of which I have already referred to. A number of them observe that before your mother's death, you had an endearing personality, notwithstanding that at that time, unbeknown to them, you were the victim of appalling abuse at the hands of your father. Your sister explained that, throughout your life, you have had the habit of concealing your true feelings from others. Nevertheless, those testimonials do reveal a positive side to your personality. In the same vein, the testimonial of Mr Broadbent-Hogan, the VCAL coordinator at St Joseph's Campus Flexible Learning Centre in North Melbourne, states that you have a high level of intelligence and thoughtfulness, and that you have all the right qualities to work positively within the community. He describes you as a caring, compassionate, reflective and intelligent young man.

50 In addition, your plea of guilty is an important mitigating factor in this case. I am satisfied that it was accompanied by genuine remorse, an acceptance by you of your responsibility for taking Sam Dunne's life, and a willingness to facilitate the course of justice. In addition, the plea has had a substantial utilitarian effect. It has saved the community the cost of a contested trial, and, more importantly, it has spared the family of Sam Dunne, and those closest to him, the anguish of a contested trial. The acknowledgement by you of your guilt is, I consider, a further factor in favour of your prospects of rehabilitation.

51 Your youth, both at the time of committing the offence, and at the time of sentence, is also a relevant mitigating circumstance. In your case, the fact that you were youthful, and that you had significant psychological and emotional issues, mean that you had not sufficiently developed the capability to exercise emotional restraint and control that one would expect of a person of more mature years. In addition, it is an established principle of sentencing that, in the case of a youthful offender, rehabilitation is usually of more significance than general deterrence. This is because it is not only in your interest, but, more significantly, in the interests of the community, that when you are released into society, you do not re-offend. While that principle is of less weight in cases, such as this, than in sentencing for other offences, nevertheless it is a relevant principle that is to be applied in this case.

52 As a further mitigating circumstance, I am satisfied that your mental disorder, of paranoid schizophrenia, may render your term of incarceration more burdensome for you. As Dr Sullivan has noted, you are prescribed medication which is coveted by other prisoners. You have already been subjected to one episode of intimidation by a prisoner, who sought to take your medication from you. I am also satisfied that the paranoid feelings, to which you are susceptible, may cause you to apprehend that you have been subjected to threats and intimidation, in the environment of a prison, even if those apprehensions are ill-founded.

53 In determining your sentence, I am required to take into account current sentencing practices. For any given offence, the range of factors, relating to both the circumstances of the offence, and the circumstances of the offender, vary significantly, so it is never an easy task to identify the appropriate range of sentence. That is no more so than in cases involving the offence of manslaughter. Nevertheless, in a case such as this, it is important to have regard to the appropriate range of sentence, taking into account the nature of the offending and of your circumstances. In that regard, I have been assisted by the summary of sentences in some other cases provided by the prosecution, and in the published version of these reasons I shall specify those cases.[5] In addition, I have also had regard to sentences in some other cases, which I shall also specify in my published reasons.[6] None of those cases are substantially comparable to the present case. However, a review of them as a whole has assisted me in determining the appropriate sentencing range in this case.

54 It is necessary that the sentence, which I impose on you, be such as to adequately express the condemnation by this Court, and the community, of your violent conduct that has cost the life of another member of the community. It is also important that the sentence be of sufficient severity to serve as a lesson to others, and, in particular, to young persons who engage in violence while affected by the consumption of illicit substances, and to constitute a message to the community, that persons who engage in such conduct should expect to be deprived of their liberty within society for a substantial period of time. It is also important that the sentence be sufficient in order to ensure that you personally are deterred from any further wrongdoing. However, in that respect, as I have already indicated, I am satisfied that you have already taken positive steps towards your rehabilitation, so that the role of specific deterrence is, to that extent, moderated.

55 As I have already stated, the offending by you in this case is particularly serious. You subjected Sam Dunne to a prolonged and vicious beating with no justification or proper cause. Your conduct, after you had grievously injured him, aggravated the gravity of your wrongdoing. On the other hand, there are a number of important mitigating circumstances which weigh in your favour. They include your traumatic upbringing, which I have concluded played a significant role in depriving you of the capacity to control yourself in the type of circumstance in which you found yourself at the time that you committed the offence. I also take into account your remorse, the steps that you have taken to rehabilitation, your plea of guilty, your youth, and the fact that a term of imprisonment may weigh more heavily on you due to your mental disorder.

56 Taking those matters into account I sentence you as follows. I sentence you to 8 years and 6 months' imprisonment. I fix a minimum non-parole of 5 years and 3 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 399 days, including today's date, be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

57 As I have already stated, I have taken into account, in your favour, the fact that you have pleaded guilty. Section 6AAA of the Sentencing Act requires me to state the sentence, and the non-parole period, which I would have imposed, but for your plea of guilty. In this case, I find that exercise to be somewhat artificial, because of the necessary interrelationship between your plea of guilty and the other mitigating factors, and in particular, your remorse, and the steps that you are taking towards your rehabilitation. Nevertheless, and with that qualification, for the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 10 years and 6 months' imprisonment, with a minimum non-parole period of 7 years.

[1] [2013] HCA 37; (2013) 249 CLR 571.

[4] R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496, 520 [78]-[80] (Eames JA).

[5] See DPP v Robinson [2017] VSC 56; Mocenigo v R [2013] VSCA 231; R v Closter [2014] VSC 484; R v Sharp [2015] VSC 161; DPP v Townsend [2015] VSC 456; Tito v R [2011] VSCA 303.

[6] See R v Parker [2013] VSC 479; R v Raimundo [2015] VSC 550; R v Mazzaro [2015] VSC 528.