DPP v Clover [2019] VSC 123

2 The Summary of Prosecution Opening on Plea,[1] was read aloud and tendered by the Crown at the commencement of the Plea Hearing,[2] along with Crime Scene photos,[3] and a bundle of Victim Impact Statements.[4] A Brief Outline of Crown Submissions ('the Crown Brief Outline') on the plea was also provided.[5] The Defence tendered an Outline of Plea Submissions,[6] and a report from psychologist Dr Mathew Barth dated 14 November 2018.[7]

3 David Griffiths, Tanya Burmeister and Zoe Burmeister were each killed as the result of the ignition of a fire which quickly engulfed the alcove where they were staying at the disused Kinnears Rope Factory. Shortly before the ignition of the fire you had purchased some petrol, which you brought to the scene in a fuel container before deliberately depositing a small amount on the perimeter of the alcove and setting it alight. The fire was planned by you and it took hold very quickly, spreading from the doorstep area and mesh perimeter doors to within the alcove. At the time of the fire you knew David Griffiths and Tanya Burmeister were present inside the alcove although you did not know that Zoe Burmeister was there. The murder charges are founded on reckless intent because you realised that ignition of the fire would probably bring about really serious injury to David Griffiths and Tanya Burmeister but you decided to proceed regardless.

Detailed explanation of facts founding the charges of murder

4 It is necessary to explain the relationship between yourself and the three victims of your crimes in order to understand the background to your offending.

5 David Griffiths was 39 years of age when he was killed. He had been married and fathered two children but was estranged from his wife. He was unemployed and on social security benefits at the time of his death. He was a long-term substance abuser and habitually begged alms in the vicinity of Swanston Street, Melbourne near EB Games. You had known David Griffiths for a number of years. You knew him as 'Bluey'. He had previously lived in your home for about six months until he had a falling out with you and moved out.

6 During 2015 David Griffiths became homeless but in mid-2016 he began living in the alcove where the fire occurred. The alcove was a defunct gas meter room at the back of the Kinnears Rope Factory building. The alcove was directly opposite number 3 Kinnear Street. It measured 3.5 metres wide and 2.6 metres deep. The walls of the alcove were brick and there was no opening from the alcove into the factory. The only opening to the alcove fronted onto the street and was separated from the street by two mesh covered doors,[8] which met in the middle. One of the two doors was generally fixed in place, whilst the other opened outwards. The fire brigade had previously alerted the building owners to risks created by the dumping of rubbish in the alcove, so mesh was installed on the metal door frames and they were locked with a chain and padlock.

7 Nevertheless, David Griffiths gained access to the alcove in 2016 and began squatting there. It appears that he replaced the owner's padlock with his own padlock and draped cloth over the inside of the mesh doors. He secured the alcove from the outside with the chain and padlock whenever he departed but tended to pull the chain and padlock through to the inside of the doors when he was present at night. It is not known whether the padlock was actually locked on occasions when it was pulled through to the inside, or whether on the night of the fire the padlock was locked on the inside of the doors. The alcove was crammed with possessions including flammable items such as beds, small cupboards, clothing and the like.

8 Tanya Burmeister was 32 years of age at the time of her death.[9] She was the mother of Zoe Burmeister, and had three younger sons, although she did not have formal custody of her children at the time of her death. She was unemployed and on social security benefits and was a long-term drug user. She was in the habit of begging at a location outside Krispy Kreme doughnuts in Swanston Street. This was not far from the location David Griffiths usually occupied. Tanya Burmeister and David Griffiths had become involved in an intimate relationship at the time they were killed.

9 Zoe Burmeister was 15 years old at the time of her death. She came under the supervision of the Department of Health and Human Services ('DHHS') because of her mother's itinerant lifestyle and substance abuse. Despite being placed in foster care she frequently absconded to be with her mother, causing notifications to police that she was a missing person. In the days leading up to 1 March 2017, Zoe Burmeister was reported missing when she failed to return to her foster carer. It appears that during that time she was staying with her mother and David Griffiths in the alcove. The day before her death, on 28 February 2017, police had visited you, Mr Clover, inquiring about Zoe's whereabouts. You told them that Zoe had been staying with her mother behind the old rope factory on Kinnear Street, Footscray.[10]

10 Mr Clover, in early 2017 you were unemployed and on social security benefits. You have had a long-term heroin addiction and you were in the habit of begging in the vicinity of McDonald's and the Young & Jackson Hotel.

11 You had met and commenced a relationship with Tanya Burmeister in 2013 and she began to stay with you around that time. You told Glen Hassell, in May 2016, that you were in love with Tanya and planned to marry her. You had been living in a house at Delahey since mid-2013 and sought to offer Tanya a home for herself and her daughter Zoe.[11] Ultimately, your relationship with Tanya became tumultuous and in October 2016 you became severely depressed when she left you for a while. Medical records show that you were admitted to hospital for depression briefly at this time.[12] Following your arrest on the current charges, police found letters written by you to Tanya, some of which are dated from this period mentioning your jealousy at the idea of Tanya being with another man. Some of your associates described you as having become obsessed with Tanya.

12 David Griffiths made friends with Kiana Mallia in August 2016 and through her Ms Mallia met Tanya a few months later. Ms Mallia worked in a shop at Flinders Street Station. She recounted that sometime in September or early October 2016 David Griffiths complained that you had walked past the rope factory and made a threat to set the squats on fire. Sometime after this, Ms Mallia agreed to help David and Tanya report the threat to the police at Melbourne East Police Station.[13] Ms Mallia said that even after going to the police station, David Griffiths complained that you were continuing to make threats of a similar nature. Tanya was less specific but said that you were just 'giving her threats' and 'stressing her out'.[14]

13 Tanya continued to stay with you at your house in Delahey from time to time after October 2016 but the relationship was troubled. She left you at the end of December and went to Wonthaggi to stay with a former partner in an attempt to get off drugs.[15] She then returned to Melbourne and spent some time with you in early February 2017 but the relationship became untenable. By the time of the White Night Festival in Melbourne on 18 and 19 February 2017, she had decided to break off with you completely and she stayed with a friend in St Kilda for a few nights. She then moved to Footscray and shared the alcove with David Griffiths.

14 Associates of the pair of you noticed that you were extremely upset and angry over Tanya's decision to finally break up with you.[16] You packed up her possessions to return some items to her in the city and you gave some items away but your anger was magnified by learning that she did not care about getting her things back from you.[17] You were furious that she was involved with David Griffiths and you claimed that she had been spreading rumours about you in connection with Zoe Burmeister.

15 In February 2017 you told Daniel Harvey that you had been involved in an altercation in the city where you yelled at David and Tanya. You said that you had been falsely accused of tampering with Zoe and of taking inappropriate photographs of her. You claimed that Tanya had spread rumours about you amongst the beggars of Melbourne and Footscray. Mr Harvey said you became even more angry when you learned that he had invited David and Tanya to use the shower at his place. On the Sunday before the fire you told him that you had seen David and Tanya in Empire Street and that you wanted to go back to the squat and have it out with David Griffiths ('Bluey').

16 Naomi Lane had come to know David and Tanya in December 2016 and in the weeks that followed she learned that they were together as a couple. She recalled sitting with them outside EB Games when you approached and said to Tanya: 'You will always be mine and no one will have you'. A few weeks before the fire she observed you walking past the front of EB Games yelling abuse and making threats towards David and Tanya.

17 About two days before the fire Zoe Burmeister's boyfriend, Brandon Blacker-Rix, stayed overnight in the alcove with Zoe and her mother and David Griffiths. In the morning he noticed you arguing with David and Tanya and yelling in their direction: 'I'm gonna hit you, I'm gonna smash you'.

18 On the afternoon of 1 March 2017, around 4.00 pm you rode your bike to the Taylors Lakes Cash Converters and obtained a loan of $150 using your bicycle as security. Sometime later you were detected walking in the direction of Watergardens Railway Station wearing a purple backpack and a fluorescent singlet.

19 Meanwhile, David Griffiths and Tanya and Zoe Burmeister met Sharon Merigan outside the alcove at around 5.00 pm and shared some cannabis. David and Tanya confided in Ms Merigan that they were worried about the threat that you posed to them. After a while Ron Thornton joined them and the group left and travelled towards the Coles store in Footscray. Ms Merigan departed but Ron Thornton, David Griffiths, Tanya and Zoe Burmeister returned to the alcove and sat outside socialising from around 7.00 pm onwards. Ron Thornton left at 8.10 pm at a time when the others were preparing to retire inside the alcove.

20 At 7.26 pm you were captured on CCTV in the waiting area at Footscray Railway Station placing a grey t-shirt over your fluorescent vest and boarding a train for Southern Cross Station. You got off in the Melbourne CBD and obtained a shopping trolley, which you had with you when you boarded a Sunbury line train at Flinders Street Station just after 9.50 pm. The train arrived at Footscray Station at 10.11 pm and you left the train with the shopping trolley.

21 At 10.03 pm Glen Kerr was driving past the alcove and observed it to be quiet,[18] with the mesh doors closed and no lights on.

22 At 10.16 pm you entered the Leeds Street Club in Footscray, pulling the shopping trolley with your purple backpack inside. You remained in the club for one minute before leaving and walking north along Leeds Street.

23 Several local residents who observed the alcove between 10.30 pm and 11.10 pm noticed that the mesh doors were closed and there was no apparent activity. However, at 11.10 pm Bich Thai observed a flash of light inside the alcove, similar to the light produced by a mobile phone.

24 At 11.14 pm you walked from Owen Street, Footscray towards the Caltex Service Station in Gordon Street. You left the shopping trolley on the nature strip and pulled a red fuel container from it. You went to a petrol pump and pumped 1.65 litres of unleaded petrol into the fuel container before paying the shop attendant two dollars for the fuel. You appeared angry and troubled at that time. You left the service station with the fuel container at 11.16 pm and walked across Gordon Street into Owen Street.

25 The evidence reveals that after obtaining the fuel you went to the alcove and deposited a portion of the petrol near the base of the Western door of the alcove. You then set the fuel deposit alight.

26 George Xydias, Arson Chemist, examined the crime scene on 2 March 2017. He noted that the nature of burning across the exterior doorstep on the Western side indicated the presence of a small amount of flammable liquid. Apart from the exterior door area, there was no further evidence of flammable liquid spread about the interior of the alcove, nor any evidence of flammable liquid trailing away from the region of the front door step. He concluded that petrol had been applied to the outer doorstep of the alcove in a localised way, rather than a continuous trail. He determined that the fire in the alcove resulted from ignition of a small amount of petrol on the ground outside the alcove and subsequent spread of the fire to various combustible items inside the alcove. Most of the lower level burning was to items beside the door on the Western side and more so across the exterior region, where a carpet strip was located. This was determined to be the origin of the fire. The most intense floor level heat effects were across the doorway, including the footpath and mesh door. It appeared likely that the petrol was lit with a match or cigarette lighter.[19] The alcove sustained severe burning, with most of the contents being intensely heat affected or partly consumed.[20]

27 Whilst no one saw the fire being lit, there were a number of eye-witnesses in the vicinity in the very early stages. Shortly after 11.00 pm Seare Negash was returning from walking his dog, to his car in Kinnear Street, when he heard a loud noise in the direction of the alcove. He observed the nascent fire and saw a male stand up and walk away from the area of fire and enter a laneway directly across Kinnear Street from the alcove.

28 Felix Tchung, who lived opposite the factory, was alerted by his sister to the fire. When he looked out the window he could see the fire on the ground and on the door on the right-hand side, but it did not appear to be inside the alcove. He observed: 'the fire was spreading very fast across the door and the ground, like there was petrol or something' and that the fire spread 'up and across the door from right to left'.[21] He called 000 at 11.25 pm.

29 At 11.25 pm taxi driver, Gurpreet Bhatia, had turned his taxi left from Eldridge Street into Kinnear Street, when he observed a small fire about a metre high in the middle of the opening to the building. He saw no one in the vicinity, but believing he was first on the scene he immediately filmed the fire with his mobile phone. At 11.28 pm, three minutes after first observing the fire, he called 000. From the time he first got out of his taxi to view the fire he could hear male and female voices crying out for help from inside the alcove. Several other neighbours and passers-by saw the fire in its early stages, some of whom heard screams for help and explosions from inside the alcove as the fire rapidly spread.

30 Several people made efforts to douse the fire with buckets of water, but this did not stop the fire from taking hold. The Fire Brigade received notification at 11.26 pm and attended at 11.30 pm. By then the fire was already burning intensely. Despite the prompt actions of firefighters the three victims had already died. Firefighters had observed the red fuel container on the ground about one metre from the closed doors when they arrived. It was found to be about half full. Firefighters had also noticed that the doors of the alcove were shut with a chain in place when they arrived. The chain fell to the ground as the doors were opened. Once opened the bodies of the deceased victims were immediately visible.

31 Mr Clover, after igniting the fire your movements were captured on CCTV at various locations. You were detected walking South past the Powell Hotel on Gordon Street, Footscray wearing the same fluorescent singlet as earlier and pushing the shopping trolley, then walking past the Whitten Oval at 11.43 pm before entering West Footscray Station and boarding a Sunbury bound train. You fell asleep and missed your station, and were awoken by some Protective Service Officers ('PSOs') at 12.20 am. You travelled in the driver's compartment back to your usual train stop at Watergardens Railway Station.[22]

32 Dr Matthew Lynch, forensic pathologist, attended at the crime scene on 2 March 2017 and examined the bodies of each of the deceased. He observed signs of thermal damage and smoke inhalation. In each case the cause of death was attributed to the effects of fire.

33 On the evening of 2 March 2017, you were arrested in Swanston Street, Melbourne where you were begging. You were formally interviewed by police about the fire at 7.28 pm that evening and the interview concluded at 1.17 am the following morning. In the police interview you contemptuously denied lighting the fire and expressed resentment at Tanya's decision to leave you and stay with David Griffiths in the alcove. You said Tanya had pulled your heart strings for months and you were wild at being accused of being a paedophile and of having photos of her daughter. You said that you had visited the alcove many times and had slept there once and that it was 'pitch dark black in there.' You mentioned the chain and lock being on the inside on the occasion when you stayed there.[23] You gave a patently false and implausible account of having gone to the alcove on the night of the fire and having spoken to David Griffiths and of having left the fuel container there pursuant to an arrangement with him. You denied having made any threats to Tanya Burmeister or David Griffiths and you rejected responsibility for the death of the three victims. You showed no remorse at that time.

Procedural history, timing of guilty pleas and remorse

34 You have been in custody continuously since the date of arrest on 2 March 2017. After a contested committal you were committed to this Court on 2 February 2018. Despite the matter being set down for trial, you indicated to the Crown on 15 August 2018,[24] that it would not be disputed that you lit the fire.

35 Legal argument commenced before me on 8 October 2018 but you pleaded guilty to the current indictment on 10 October 2018, before it concluded.[25]

36 The Crown acknowledged that you are entitled to a utilitarian discount for your pleas of guilty despite those pleas being entered late, after pre-trial arguments had commenced. It was conceded that the issues in dispute were more confined after 15 August 2018 once it was accepted that you had lit the fire.

37 Mr Gurvich SC submitted on your behalf that your ultimate decision to plead guilty showed acceptance of responsibility for your crimes, despite the attitude advanced in your police interview. He noted that the trial resolved after the Crown agreed to withdraw reliance on intentional rather than reckless murder. Mr Gurvich pointed to your statements to Dr Barth as indicating contrition.[26] You were tearful at times when you spoke to Dr Barth and showed an awareness of the devastating effect of your crimes.[27]

38 I accept that your decision to plead guilty to each of the three charges has resulted in significant utilitarian benefits. The prospect of a contested trial would have been daunting for relatives and friends of the victims and for witnesses required at trial. Legal and court resources are precious and a jury trial would have taken many weeks. I also accept that your ultimate decision to plead guilty to each offence was partly motivated by shame at the enormity of your crimes, and that this approach accords with the remorse you expressed to Dr Barth. Whilst accepting that you are now contrite, your lack of remorse when you were interviewed by the police must also be recognised.

39 The Crown have referred to your distress and anger over Tanya's decision to leave you for David Griffiths as providing a motive for the offending. You told Dr Barth that you thought they shouldn't be living like that in an abandoned factory. You also claimed that Tanya was spreading rumours about you.

40 The distress you felt when Tanya Burmeister left you to live in the alcove with David Griffiths does not mitigate your crimes.

41 The Crown relied on R v Felicite[28] to submit that rather than being a matter in mitigation, denunciation and general deterrence may assume more relevance when offending is committed in response to a failed relationship. However, the Crown did not urge the Court to treat this factor as a matter of aggravation in the overall context of this case.[29]

42 I conclude that whilst there are a number of atypical subjective and objective features of your offending when compared with many other cases of murder involving intimate partner violence, to the extent that you retaliated because of anger at being rejected by Tanya, such an attitude must be condemned and general deterrence does assume significance.

43 Victim impact statements were received from relatives and friends of each of the three deceased. The repercussions of your actions have been devastating and far reaching. Allen and Gloria Griffiths,[30] said that the anguish and heartbreak that they felt upon being told of their son's death continues to haunt them, especially after learning of the gruesome way in which he died. Despite David becoming a street dweller, he never ceased to be a cherished member of their family. They feel their lives will never be the same. David's sisters Judy Griffiths and Kay Rigby recounted their shock on learning of the horrific way David was killed and their despair at the impact David's murder has had on their parents. David's nieces Sienna and Amelia Rigby and Tara Hope described their sadness at learning of his death.

44 Brad Burmeister, father of Tanya and grandfather of Zoe, spoke of his most recent contact with his daughter three or four weeks before her death. He said of Tanya and Zoe that they were more like sisters than mother and daughter, and that his mind is consumed by 'what ifs'. He has had to seek psychological help to cope with his grief and loss. He said of each of the victims' families, 'they didn't deserve this. None of us do'. He feels consumed by guilt and anger, but mostly his heart aches for Tanya and Tanya's sister, Georgina, born on the same day some years apart.

45 Georgina Burmeister, sister of Tanya and aunt of Zoe, found it hard to put into words her grief and says she will be forever impacted by these crimes. She is worried about the effect on her family and on her father into the future. Shaylee Tennyson, also a sister to Tanya and aunt to Zoe, says that not a day goes by when she does not mourn their loss. She has had to disengage from work and friends and is haunted by nightmares of the fatal event.

46 Sam Harrison, foster carer, has looked after high-risk adolescents for many years. She was foster parent to Zoe at the time she went missing to spend time with her mother. She described her devastation on learning that Zoe was with her mother at the time of the fire. She has lost interest in academic studies and abandoned her role as a foster carer. She feels that she has lost a valued part of her identity. Her partner, Jessie Mitchell, echoed her sentiments about the profound consequences of Zoe's death. Members of Ms Harrison's extended family, Gabrielle Harrison and Alex Van Der Burgen, also expressed their devastation.

47 Alicia Mueller-Barnes, Zoe's foster sister, described Zoe as her best friend and 'little sister'. She said a massive chunk is missing from her heart since Zoe's death and she is upset Zoe did not get the chance to become her own person. Kiana Mallia, who had befriended David Griffiths and Tanya Burmeister in 2016, misses them both and says that they were like family. Jamal Sharif, a friend of both Tanya and David, says the offences have left him feeling lost, isolated and scared to make new friends.

48 Darren Clover, you are 54 years of age and were 52 at the time of the offending. You were residing at 19 Antonie Avenue Delahey in a house provided with support from the Salvation Army. During your adult life you worked on occasions as a carpet layer, and in a hotel, but you were often unable to work and had long periods of homelessness.

49 Your childhood and home life were marked by poverty and neglect. You were the youngest of three children raised in the Housing Commission flats in Carlton. Your father was largely absent from your life since infancy, having separated from your mother when you were aged three. You recall your mother as emotionally cold and abusive towards you, and you frequently ran away from home and absconded from school. You were expelled from Princes Hill High School in year 7 and on transferring to Brunswick Technical School only attended until year 9. You have struggled with attaining literacy and numeracy. You were abusing alcohol from the age of 11 and sniffing petrol and using other drugs. You began finding yourself in trouble with the police in your early adolescence. Your alcohol abuse increased over your adolescence and became extreme in your early adulthood. Records of your juvenile history show that you were placed in Turana around the age of 17. After your release from Turana you lived on the streets and had scant contact with your mother. You maintained a stronger bond with your grandmother. You have not had any contact with either of your parents for decades, nor have you seen your siblings for many years.

50 Your prior criminal history is mainly comprised of lower court dishonesty and drug offences, with only one appearance on indictment in a higher court; being for the common law charge of affray in 1984 when you were sentenced to a Youth Training Centre ('YTC'). Although you have persistently offended over many years there is a relative paucity of violent or confrontational crimes in your criminal record.[31]

51 Without referring to every detail of your criminal history, I will summarise the main features. In 1982, while you were still a minor, you appeared at Carlton Magistrates' Court for burglary, theft and car theft and received six months YTC. Two years later, in 1984, you appeared at the Melbourne County Court and, received an aggregate nine months YTC for charges of unlawful assault and affray. You were then dealt with in the period between 1985 and 2002 predominantly for driving and dishonesty offences,[32] resulting in penalties ranging from fines, a Community Based Order and a suspended sentence. Your serious heroin addiction was noted in the records of the Sunshine Magistrates' Court in 2002. Further appearances in 2004 included drug related and dishonesty offences.

52 You were further sentenced for trafficking heroin and other drug and dishonesty offences at the Sunshine Magistrates' Court in October 2004 and placed on a Community Correction Order for nine months. You were dealt with for breach of that order in 2006 at Melbourne Magistrates' Court and on the same day you were sentenced for using and trafficking heroin. A sentence of two months' imprisonment was imposed for the breach and an aggregate six months was imposed for the traffick and use charges.

53 In 2009 the Sunshine Magistrates' Court sentenced you for possessing a controlled weapon and theft and you were placed on a bond and a suspended sentence. The following year at the same court you were dealt with for burglary, car theft, theft from a shop and possessing a controlled weapon and you were placed on a suspended sentence and a Community Based Order. You breached the Community Based Order and appeared for the breach in March 2011, whereupon a further suspended sentence was imposed. Again at the Sunshine Magistrates' Court a two month suspended sentence was imposed for trafficking heroin in 2013. On 13 March 2015, at Sunshine Magistrates' Court, breach of the last mentioned suspended sentence was established and a charge of traffick heroin was proven, but another suspended sentence was imposed.[33] Your most recent conviction was for begging in September 2015.

54 Dr Mathew Barth saw and assessed you on 7 November 2018 and reviewed your history, including your mental health, substance abuse, personality functioning and current level of insight. He had access to a previous neuropsychological assessment[34] and other clinical records from recent years.[35] He carried out psychological testing including a Personality Assessment Screener, which screens for psychological dysfunction and behavioural disturbance. Unsurprisingly, your personality profile showed a marked propensity for emotional and behavioural problems.

55 You told Dr Barth that your first relationship occurred during your late twenties, but it was marred by heavy drug abuse and by your partner's infidelity, after which you became very distressed and began abusing drugs and alcohol more heavily. You said it took you many years to get over that relationship.

56 Your only other major relationship was with Tanya Burmeister, who was homeless and addicted to drugs when you met her. You said that you felt a strong connection to her, despite mutual heavy drug use. The relationship became riven by conflict because Tanya would come and go from your home as she pleased, leaving you distressed and confused. You narrated that even after she left you, she and Zoe continued to stay at your house on a sporadic basis,[36] but you became aware of her relationship with your former housemate, David Griffiths. You reported experiencing extreme emotional distress during 2016 and 2017 as your relationship with Tanya broke down, leaving you feeling lonely and empty. You sought mental health treatment in late 2015 and early 2016 to deal with your emotional distress.[37]

57 You told Dr Barth of a long history of feeling depressed, unmotivated and pessimistic throughout your adult life, with periods of suicidal ideation and several past suicide attempts.[38] Your extensive substance abuse led into heroin addiction in your early thirties to the point where you could not sustain employment. You said you overdosed many times during your thirties and forties. Despite being referred for drug treatment in recent years, you reported that your heroin use continued up until your arrest.[39] You also used methamphetamines on a weekly basis and benzodiazepines whenever you could get them. Dr Barth commented that abuse of drugs and alcohol has severely damaged every area of your life.[40]

58 Behavioural problems have been present, since your emotionally impoverished childhood, so that you have failed to maintain many of the key responsibilities of life. You tend towards dogmatic thinking and impulsive and reckless decision-making when emotionally challenged. Long term alcohol and drug abuse have intensified these behaviours.

59 You have developed few genuine attachments throughout your life and you have been prone to rapid mood swings.[41] Your self-esteem is low and you have been inclined to act out destructively in order to compensate for your own sense of worthlessness. Your social skills and conflict management are poor and you have had difficulty regulating your behaviour and functioning effectively in society.

60 Dr Barth opined that your personality and behavioural issues were sufficiently entrenched to support a diagnosis at the time of the offending of Anti-Social Personality Disorder by DSM-5 criteria as well as an Opioid Use Disorder and Stimulant[42] Use Disorder.[43] An HCR-20 risk assessment conducted by Dr Barth showed several concerns regarding the risk of violent recidivism.[44] You require extensive supervision, monitoring and treatment if your prospects of rehabilitation are to be improved. Treatment directed to substance abuse will be of critical importance.

61 The Crown noted that having pleaded guilty to three counts of murder you fall to be sentenced as a serious violent offender under s 6E of Part 2A of the Sentencing Act 1991 ('Sentencing Act') on Charges 2 and 3 in which the victims are Tanya Burmeister and Zoe Burmeister respectively.[45]

62 Section 6E creates the presumption of cumulation for the sentences imposed for Charges 2 and 3, although this presumption is liable to be displaced by the court. A factor relevant to displacing the presumption is the requirement to apply the principle of totality. Section 6D also requires that regarding Charges 2 and 3, the Court must regard the protection of the community as the principal purpose for which the sentence is imposed and permits the Court to impose a disproportionate sentence.[46] The Crown do not submit that a disproportionate sentence should be imposed in respect of Charges 2 and 3 and I do not consider that it is required.

63 It was argued by the Crown that the offending in respect of each charge falls within the mid to high range of seriousness for the crime of murder. The Crown referred to the planning involved in preparing to light the fire. The petrol was acquired and taken to the alcove late in the evening, when it must have been apparent to you that the occupants had retired for the night and were unaware of your presence. In choosing to light the fire in the manner in which you did you severely limited their prospects of escape from the alcove.

64 Given that you had once stayed the night at the alcove, the Crown submitted that you were in a position to learn that there were flammable items stored in the alcove and that there was no running water and to notice that, on that occasion, the door chain and padlock were on the inside.[47] The Crown conceded that the evidence does not establish that the doors were padlocked at the time of the fire but submits that the circumstances in which you lit the fire involved a very high degree of recklessness towards the occupants of the alcove. The motivation for the offending was largely borne of resentment that Tanya had chosen to leave you and live with David Griffiths in the alcove. There was no specific act of provocation at the time you lit the fire. Each of the victims was socially vulnerable and died in horrific circumstances. Whilst you did not know that Zoe was present in the alcove, in assessing the objective gravity of your offending, the sentence must acknowledge that a 15 year old girl died as a result of your reckless actions.

65 The Crown submitted, in reliance on Barrett v R,[48] that although a finding of guilty of reckless murder, based on a subjective appreciation of the probability of really serious injury rather than death, is sometimes less morally culpable than intentional murder, in the present case there is little to distinguish the degree of moral culpability involved.

66 Additionally, it was contended that community protection was an important sentencing goal and that the Court should give particular prominence to punishment, denunciation and specific and general deterrence. However, the Crown conceded that a degree of concurrency was warranted since the three offences arose from the same act.

67 Submissions made on your behalf included that your pleas of guilty were entered on the basis of awareness of the probability that really serious injury, rather than death, would result from your actions. Further, the Defence submitted that the plea of guilty to Charge 3 was entered on the basis of an acceptance by the Crown that you had no specific knowledge that Zoe Burmeister was present in the alcove at the time of the fire.

68 It was put that your offending occurred in the context of an erratic and emotionally disturbing time for you as a result of the on-and-off nature of your relationship with Tanya Burmeister and your genuine love for her. Reference was made to hospital records of your admission in October 2016. Your level of distress was said to have increased after the final separation on the weekend of the White Night Festival in late February 2017.

69 It was said that you are a lonely person who has tended to be isolated from the mainstream of society and that, despite your inadequate personality, you are aware that your offending has caused profound grief to those affected.

70 I agree with the Crown that the gravity of your offending is increased by the deliberate manner in which you obtained the petrol and set the fire, given the physical state of the alcove as known to you. Although I am unable to conclude beyond reasonable doubt that the victims were locked in the alcove or that you believed they were,[49] it must have been apparent to you that the occupants had retired for the night and that lighting the fire in the manner in which you did would expose them to the probability of being horribly injured. Using fire as a weapon is a particularly egregious form of offending. The various threats uttered towards David and Tanya in the months before the fire do not establish long term planning but do show that feelings of anger and vindictiveness surfaced in you quite frequently. Ultimately, you took umbrage at Tanya's decision to live in the alcove with David Griffiths rather than living at your house with you, and because of rumours you said she had spread, and you intentionally travelled to Footscray and gave vent to your anger when you lit the fire. Nevertheless, I accept that the evidence reveals that your plan to light the fire coalesced only on that day, and that you did not anticipate that Zoe would be staying there that night.

71 I have reviewed cases of murder by recklessness[50] and cases of murder involving the use of fire[51] in order to discern matters of principle. The facts which underlie those cases vary greatly. I note that in R v Khan[52] it was argued that a fire lit for personal gain was less objectively serious than a fire lit because of animus towards a potential victim. The Sentencing Judge in that case rejected that argument.

72 I agree with the Crown that it cannot be said that the moral culpability involved in these offences is much reduced because you did not specifically intend the death of each of your victims or foresee the probability of death as distinct from really serious injury or know that Zoe was there. Fuel and fire combined to create a dreadful event. Witnesses who tried to assist the three victims described the incident in graphic terms increasing the anguish for their loved ones.

73 As submitted by your counsel, you have been something of an outsider from society. Your childhood and adolescence left you ill-equipped for satisfactory interpersonal relationships. You did not develop strong bonds with family members or friends and you failed to prosper in education or work. Substance abuse marred your social development and thwarted your sense of responsibility. I take into account your background of disadvantage and your psychological disorders in a general way in sentencing you.[53]

74 In summarising matters of mitigation, I must give proper weight to your pleas of guilty and contrition which are factors that are especially significant in crimes as serious as those for which you stand sentence.[54] I must also take account of the fact that you are now 54 years of age and are facing a very lengthy sentence of imprisonment.[55]

75 Under s 5(1) of the Sentencing Act, the purposes for which sentence may be imposed include just punishment, specific and general deterrence, rehabilitation, denunciation and community protection.[56]

76 All of these purposes are relevant to the sentences to be imposed on each charge.

77 It is particularly important that the Court denounces your conduct and sends a message to the community that the cruel use of fire as a weapon deserves condign punishment.

78 The question whether you present a risk of future harm to the community is complex in your case. Regarding community protection the Court must apply the dictates of s 6D(a) to Charge 2 and 3. Nevertheless, you do not have an extensive record for violent offending. Whilst your compliance with past court orders has been poor and you have continued to abuse drugs you had managed to achieve stable housing prior to being remanded in custody. On the other hand, the violence risk assessment conducted by Dr Barth showed an elevated risk of recidivism, owing to your Anti-Social Personality Disorder and your longstanding substance abuse. Your rehabilitation is at a formative level and you require specialist substance abuse treatment and psychological intervention in order for your prospects to be enhanced.[57] Of course, the length of the sentence to be imposed and your age at the expiry of any minimum term must be factored in to any assessment of future risk. You have shown some willingness to adapt to your circumstances in prison.[58] You claim abstinence from illicit drugs,[59] and have been working in hose assembly. You told Dr Barth that you want to continue to be productive. I acknowledge the limitations involved in assessing rehabilitative prospects from the vantage point of the present day at the time of imposing a very lengthy sentence of imprisonment.

79 I am obliged to give weight to the principle of parsimony in s 5(3) of the Sentencing Act which indicates that a court must not pass a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

80 Under s 5(2)(b) of the Sentencing Act, the Court must take account of current sentencing practices when sentencing an offender, although it is only one factor, and is not a controlling factor.[60]

81 The Court of Appeal in DPP v Zhuang said:[61]

Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis, particularly insofar such an overview may provide a general guide to current sentencing practices.

82 Consistent with this approach, sentencing you involves the Court synthesising all relevant factors whilst pursuing the important goal of a just sentence on each charge and overall.

83 In considering current sentencing practices for the crime of murder, and the features of your offending, involving as it does three deaths, I am mindful of the limitations involved in reviewing sentencing snapshots, truncated case summaries or sentencing statistics as a guide to current sentencing practices. I have nevertheless closely considered other murder cases involving more than one death resulting from the same episode.[62] I have also paid attention to data produced by the Sentencing Advisory Council,[63] and referred to the Victorian Sentencing Manual relating to the range of sentences imposed for the crime of murder.[64]

84 The Court of Appeal in R v Towle reinforced the point that,[65] where multiple deaths are caused by the one action, each sentence on each charge and any orders for cumulation must acknowledge the individual lives lost as a result of the offending.[66]

85 As has been said by another judge of this Court: 'Each life is precious not just to the victim but to the community as a whole'.[67] In DPP v Marino,[68] Kyrou AJA (with whom Buchanan and Nettle JJA agreed) stated that:

It is understandable that, in relation to death and serious injury involving multiple victims, ordinarily, some cumulation is required in respect of the offences relating to each victim...However...cumulation must be applied in light of the principle of totality.

86 In your case each charge of murder is properly described as mid to high range in objective gravity as submitted by the Crown,[69] despite being premised on awareness of the probability of causing really serious injury rather than intentional murder and despite your lack of knowledge that Zoe was present .[70]

87 In arriving at your sentence the Court must accord a 'just and appropriate measure of the total criminality involved', proportionate to the conduct overall.[71] Although your offending has had devastating consequences for the three victims and their loved ones, it has not been submitted that the only appropriate sentence is life imprisonment.[72] Nonetheless your present age, and the length of sentences imposed for murder, mean that you will be quite old before being eligible for consideration for release on parole or that you may even die in prison. Your age is a relevant factor which I have had regard to, along with your prospects of rehabilitation after a lengthy term of imprisonment and the desirability of avoiding a crushing sentence that would deprive you of any realistic prospect of useful life after release.[73] I have considered what justice requires in all the circumstances in fixing each sentence, the orders for cumulation, the total effective sentence and the non-parole period.

89 For the murder of David Griffiths the sentence to be imposed is 18 years' imprisonment.

90 For the murder of Tanya Burmeister the sentence to be imposed is 18 years' imprisonment.

91 For the murder of Zoe Burmeister the sentence to be imposed is 18 years' imprisonment.

92 Regarding Charge 2, I direct that a period of 6 years be served cumulatively on the sentence imposed on Charge 1 and regarding Charge 3, I also direct that a period of 6 years be served cumulatively.

93 The total effective sentence is 30 years' imprisonment. I fix a non-parole period of 24 years.

94 I declare 721 days of presentence detention, including today, as served under s 18 of the Sentencing Act and that figure will be entered into the records of the Court.

95 Under s 6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to 36 years' imprisonment with a minimum of 31 years.

[7] Exhibit B: Psychological Assessment of Mr Darren Clover by Dr Mathew Barth report 14 November 2018 [7],[35] ('Dr Barth's Report').

[8] Sometimes described as gates (made of metal with mesh screening).

[10] Depositions 1102 (Constable Mark Harwood).

[11] Depositions 403, 408 (Daniel Harvey); 844 (Emma Stafford).

[12] Voir Dire transcript 9 October 2018, 91-112 (Michelle O'Brien).

[13] Voir Dire transcript 10 October 2018, 194 (Kiana Mallia): Ms Mallia described this timing as 'most likely early October or late September' [2016].

[14] Voir Dire transcript 10 October 2018, 193 (Kiana Mallia).

[16] Depositions 202-216 (Ron Thornton); and 146-159 (Glen Hassell).

[17] Depositions 400-409 (Daniel Harvey).

[18] Mr Kerr often drove past the disused factory and was aware of someone using the alcove as a place to squat.

[19] Although the precise mode of ignition was not determined.

[20] Depositions 248 (Statement of George Xydias).

[21] Depositions 872-874 (Felix Tchung).

[22] The train driver, Dion Moore, saw nothing to indicate drug intoxication or aggression.

[23] There is a degree of ambiguity in the answers at 262 - 276 of the ROI as to observations of the padlock during the overnight stay in the alcove.

[24] The date of the filing of the Defence Response.

[25] After cross examination of certain witnesses..

[26] '[N]ot a day goes by that I don't cry, it's devastating that my actions caused their death. I've taken three lives. I'd do anything to turn back time'. Dr Barth's Report [35].

[28] [2011] VSCA 274; (2011) 37 VR 329.

[29] Notwithstanding the reference to R v Felicite [2011] VSCA 274; (2011) 37 VR 329, 332 [15] - [21] in the Crown Brief Outline, the Crown clarified their position orally at 79 and 88 on the Plea Hearing (28 November 2018).

[30] Allen also goes by Keith, his middle name.

[31] It should be noted that you received a fine in 2004 at Sunshine Magistrates' Court for breach of an intervention order.

[33] The Court records at that time referred to your positive response on the Court Integrated Services Program ('CISP') noting: 'Dedicated pursuit of his own rehabilitation over many months on CISP. Nil further offences. Has obtained and maintained stable accommodation for the first time in 25 years, currently drug free'.

[35] Including case-notes of Kathryn Skerys, clinical psychologist and letters from Dr Eliza Lanyon, General Practitioner.

[36] This seems to refer to the period after a separation in October 2016.

[37] Case Notes of Kathryn Skerys, clinical psychologist made available to Dr Barth.

[39] Currently on methadone treatment on remand. However Sunshine Magistrates' Court records relating to an appearance in 2015 suggest abstinence at that time.

[41] Attributed to dysfunctional personality adjustment, transient lifestyle and drug use.

[42] Dr Barth's report refers to this as a Simulant use Disorder: the error was referred to the parties.

[43] The Opioid Use Disorder was at the severe level and the Stimulant Use Disorder was at the moderate level at the time of the offending but both are currently in remission in a controlled environment, although methadone is being prescribed as maintenance therapy.

[44] In particular, the long history of maladjustment in the community, severe substance abuse issues, significant personality pathology and history of engaging with negative peers.

[45] Pursuant to s 6B and 6C of the Sentencing Act.

[46] Sentencing Act s 6D (a)-(b).

[47] Answers on this topic in the police interview are somewhat ambiguous.

[48] (2010) 27 VR 522.

[49] R v Storey [1998] 1 VR 359.

[50] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464; Barrett v R (2010) 27 VR 522; R v Selimovski [2016] VSC 325; R v Robinson [2012] VSC 52; R v Hegarty [2011] VSC 262.

[51] Dean v R [2015] NSWCCA 307; R v Khan [2016] NSWSC 1073.

[52] R v Khan [2016] NSWSC 1073 [69].

[53] DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 420-421 [96]-[100].

[54] Hall v R (1994) 76 A Crim R 454.

[55] Bazley v The Queen (1993) 65 A Crim R 154, 158; R v Saw [2004] VSC 117 [38]-[44]; R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 474-476 [32]-[39].

[56] Section 5(2) of the Sentencing Act provides other matters to which the Court must have regard. I have had regard to those matters.

[58] Although the Crown Brief Outline at [20] referred to a conviction for an unlawful assault committed on remand the Court was not provided with any context for that offence other than it was committed on a cellmate.

[59] Crown Brief Outline [47] (noted by Dr Barth to be objectively verifiable).

[60] DPP v Dalgliesh (a pseudonym) [2017] VSCA 360.

[61] (2015) 250 A Crim R 282, 292 [30] (citations omitted).

[62] Murder cases involving more than one death arising from the same overall episode include cases where one act caused multiple deaths and cases where multiple acts, performed during a continuous episode, caused multiple deaths. In relation to the former, see R v Farquharson [2010] VSC 462; Guode v R [2018] VSCA 205. In relation to the latter, see: R v Coulston [1997] 2 VR 446; R v Beckett [1998] VSCA 148; R v Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106; R v Pickford [2000] VSCA 179; (2000) 2 VR 15; R v Wales, [2003] VSC 115; R v Crosbie [2003] VSC 69; R v Russo [2005] VSC 348; R v Debs [2005] VSCA 66; R v Guthrie; R v Nuttal [2006] VSCA 192; R v Hettiarachchi [2009] VSCA 270; R v Fitchett [2010] VSC 393; DPP v Tuan Dang Nguyen [2010] VSCA 31; DPP v Kunduraci [2015] VSC 707.

[63] See for example the Sentencing Snapshot for murder indicating that between the years of 2011-2012 and 2015-2016 the median length of prison sentences was 20 years and the most common length of imprisonment was also 20 years and that between the years of 2012-2013 and 2015-2016 the average length of imprisonment was 19 years and 7 months and 22 years and 3 months respectively.

[64] Produced by the Judicial College of Victoria.

[65] (2009) 54 MVR 543; [2009] VSCA 280 [92]-[97] the Court referring to R v Guariglia (2001) 33 MVR 543; [2001] VSCA 27, DPP v Solomon (2002) 36 MVR 425; [2001] VSCA 106; R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323.

[66] See also Guode v R [2018] VSCA 205.

[67] R v Sokaluk [2012] VSC 167 [43].

[68] [2011] VSCA 133 [53]. See also DPP v Grabovac [1998] 1 VR 664; Walsh v R (2018) 87 MVR 76; [2018] VSCA 334 [27] (as to the approach to be taken by the sentencing judge).

[69] In adopting this characterisation of the offence by the Crown, I note the comments of the Court of Appeal in DPP v Weybury (2018) 84 MVR 153; [2018] VSCA 120 [33]-[34] and quoted by the Court of Appeal in Walsh v R (2018) 87 MVR 76; [2018] VSCA 334 [28]-[29] that the instinctive synthesis task in sentencing must not be limited by classifying offences in categories such as 'mid-range' or 'bottom of the high-range'.

[70] Barrett v R (2010) 27 VR 522, 528 [27].

[71] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308.

[72] The Crown acknowledged that this case did not fall into the worst category of the offence of murder referring to R v Kilic [2016] HCA 48; (2016) 259 CLR 256 and did not urge the Court to impose life imprisonment or decline to fix a minimum term under s 11(1) of the Sentencing Act.

[73] Collins v The Queen [2012] VSCA 163 [71] -[73]; R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 407 [31]; R v Iles [2009] VSCA 197 [20].