DPP v Gibson [2012] VSC 363

3 You were born in Melbourne on 6 February 1979 and were 31 years old on 28 November 2010. Your co-accused, James Potter, was 24. The victim of your crime, Ms Penny Pratt was 27 ½ years of age.

4 You had a history of drug taking and regularly used amphetamine with Mr Potter. In the months before the murder, you both had been seen (sometimes drug affected) at Ms Pratt's Boronia unit. You had stayed there for some days up to 25 November, when she told you to leave because of issues arising from your drug use. During that period, you had been using crystal methyl amphetamine, alcohol, Xanax, Temazepam, cannabis and a prescribed antidepressant, Lovan, together and separately.

5 On 28 November 2010, Ms Pratt was depressed and grief-stricken. Her fiancé, Alan Hobson, had died from a drug overdose exactly six months earlier. In the early hours of that day, she had sought the assistance of a Crisis Assessment Team. She had been admitted to the Maroondah Hospital Psychiatric Unit and intended to stay there for the night.

6 At approximately 10.10pm, you and Mr Potter discovered she was not at home. Mr Potter told a neighbour that you had money for her and the neighbour telephoned Ms Pratt. Mr Potter spoke to her. Then you and he went to the Maroondah Hospital. Mr Potter tried to see Ms Pratt, making out that she was his sister. He refused to leave. Security officers considered him drug affected. He was eventually allowed to speak to Ms Pratt by phone and persuaded her to meet him. She was agitated and was discharged at about 11.15pm. You and Mr Potter took her to Mr Potter's unit in Dorset Road, Boronia.. She then left. Shortly afterwards, Adrian Krelekamp (also known as 'PK') arrived. He had just seen Ms Pratt walking on Dorset Road, Ferntree Gully.

7 Whilst in Dorset Road, she had rung 000 twice, saying that two people whom police wanted to arrest had just picked her up from Maroondah Hospital. She wanted to return to the hospital. She just wanted money she was owed. She would walk back there and 'cop a beating'. In her second call at 11.28pm, she referred to three violent offenders, named Mr Potter and claimed that he was 'wanted and dangerous'. She wanted police to be sent and was hiding in a bush.

8 Shortly afterwards, however, Ms Pratt was outside Mr Potter's unit with you and you were both yelling. Mr Krelekamp summoned you inside, on Mr Potter's instructions.

9 Mr Potter and Mr Krelekamp were each sitting in the living room of the unit. You and she were standing. Mr Krelekamp thought you and Mr Potter were drug affected and I am satisfied that you were under the influence of drugs of some or all of the kind which you had recently been taking.

10 Ms Pratt asked Mr Potter how long he wanted her to wait for the $160 she claimed was owing to her by him and you. He told her not to worry about it and she became agitated. She started to yell at him.

11 You suddenly grabbed Ms Pratt by the hair on the left side of her head with your right hand. You produced a sawn-off .22 calibre rifle with your left hand. She saw the gun and pleaded with you, yelling, "Don't, don't. You don't have to do this".

12 You told her to shut up. You pointed the firearm at the right side of her face and shot her in the right side of the jaw, shattering it. She raised her right hand to her jaw and said, 'fuck, fuck'. You said, 'Now you know what happens if you fuck with us'. Ms Pratt sat down on the couch next to Mr Potter. She pleaded, 'Take me to hospital, I don't have to tell anyone'. Mr Krelekamp told you and Mr Potter that you were 'off your heads' and asked what you were doing. Mr Potter told him to shut up.

13 Ms Pratt got up from the couch and went to move away. You grabbed her and sat her down on a chair against the wall in the living room. You then raised the gun once more and fired another shot into the left side of her head, just above her ear. She slumped in her chair.

14 When Dr Michael Burke, a forensic pathologist, later conducted an autopsy, he was unable to determine whether that second shot was immediately fatal or whether Ms Pratt had lived for some minutes or longer after it was fired. That was because of decomposition and the absence of brain material or evidence of an exit wound in her head. I cannot be satisfied that she died immediately from that shot, given that she was shot a third time, shortly afterwards, and would have died immediately as a result of that third shot.

15 You argue that your conduct should be viewed as effectively one act and your second shot as relatively spontaneous. I do not see it that way. There was a period of time between the shots, during which your vulnerable victim begged to be taken to hospital. You ignored both her pleas and Mr Krelekamp's objections and shot her a second time. Although the evidence about the length of time between the two shots is equivocal, I am satisfied that there was time for you to think after the first shot and I do not regard the offence as being comprised effectively of one act. I agree with the Crown that there was some degree of deliberation and forethought on your part before your second shot.

16 After shooting Ms Pratt the second time, you said to Mr Krelekamp, 'That is what happens when they fuck with us, PK'. You continued to brandish the firearm and sat down on the couch. A discussion followed in which Mr Potter suggested that you put Ms Pratt in the bath. You and he dragged her by the arms into the bathroom. You emerged from the bathroom and spoke to Mr Krelekamp.

17 You still had the gun. You rejoined Mr Potter in the bathroom. He called out to Mr Krelekamp, 'No one leaves this house unless they want to go the same way'. Mr Krelekamp could hear the two of you having a conversation, during which Mr Potter was talking about 'throwing up'.

18 You returned to the couch in the living room. The firearm was in your lap. Mr Potter came out and took it. He walked back into the bathroom and fired a shot into Ms Pratt's right eye. On the basis of Dr Burke's opinion, I am satisfied that, if she were still alive, that shot would have been immediately lethal.

19 Mr Potter came out of the bathroom and sat next to you. Then, he grabbed a large stainless steel kitchen knife which was on a wooden coffee table. He went back into the bathroom and stabbed Ms Pratt twice in the chest. When he re-emerged, holding the blood stained knife, you told him that he had 'better go and finish the job'. He returned to the bathroom and cut Ms Pratt's throat. You and Mr Krelekamp stayed on the couches.

20 Mr Potter was gagging loudly as he dry retched in the bathroom. He came out to get a glass of water from the kitchen, before returning and continuing to cut Ms Pratt's throat. He emerged from the bathroom, sweaty and pale, with the knife still in his hand. He said, 'That's it, the head is nearly off'. He sat down on the couch. You washed your own hands in the laundry. You got a bottle of bleach and suggested that you start cleaning. Mr Krelekamp sponged blood from the wall where Ms Pratt had been shot and from the kitchen and laundry areas. Mr Potter told Mr Krelekamp that he was 'in it with you' and that it was 'murder one'.

21 You searched the unit for spent cartridges. When you could not recall whether three or four shots had been fired, Mr Potter said that it was three. You could only find two cartridges.

22 Mr Potter informed Mr Krelekamp that you were going to use his car to dispose of Ms Pratt. After initially refusing, he agreed to drive.

23 You and Mr Potter wrapped Ms Pratt in a rug from the living room. He used tape to bind the rug and garbage bags were wrapped around her head to limit blood loss. Mr Krelekamp helped you carry Ms Pratt out of the unit. At one point, Mr Potter lost his grip and she was put down on a paved area outside the back door. Mr Potter then got a blue bed sheet from the house to wrap her up further. You carried her to the boot of Mr Krelekamp's Holden sedan which he had reversed into the carport. Mr Potter put a spade into the boot with Ms Pratt.

24 You sat in the back seat and Mr Krelekamp drove. Mr Potter initially told him to drive to central Victoria, but he refused and suggested the Dandenongs. He drove to a bushland area in Silvan Road, Olinda in the Dandenong Ranges National Park. Mr Potter was slurring his words by the time you arrived. Mr Krelekamp said that you were at the back of Olinda and only he knew your exact location.

25 Mr Potter was unable to carry Ms Pratt, so you and Mr Krelekamp carried her about 30 metres into the dense scrub. Mr Potter followed with the spade which he dropped a few metres off the road. You laid Ms Pratt's body behind a large tree and placed fern branches and leaves over her. You all agreed to return the following day to bury her. You had the presence of mind to scratch a red reflector on a white guide post to indicate the location of the body. The shovel was left behind.

26 Mr Krelekamp used the trip meter on his vehicle to record your location. Back at the unit, Mr Potter apologised for involving Mr Krelekamp and you told Mr Krelekamp not to say anything. Later on the morning of 29 November, Mr Krelekamp cleaned his vehicle and its boot.

27 There were two attempts to find Ms Pratt's body. Several days after the murder, Mr Potter telephoned Mr Krelekamp and they arranged to return to Olinda to bury Ms Pratt. Mr Krelekamp picked you and Mr Potter up and you went back to the scene, at night. You searched for about an hour, but did not find the body. At the end of the same week, Mr Potter and Mr Krelekamp returned, in daylight. Mr Krelekamp dropped Mr Potter off and went on to Olinda himself. Mr Potter was unable to find Ms Pratt after about three quarters of an hour.

28 On 1 December 2010, Ms Julie Pratt reported her daughter missing. Police enquiries led them to Mr Potter and you. Mr Potter stated he had not seen Ms Pratt.

29 On 12 December 2010, police attended at your parents' home. They found you coy and evasive, but you did admit to picking Ms Pratt up and attending the hospital with Mr Potter. The next day, you admitted to police that you had also spoken to Ms Pratt at the hospital. You said that she had 'pissed off' and 'wouldn't play'. You declined to make a statement.

30 On 15 December 2010, at Mr Potter's unit, police found a fired .22 calibre cartridge case on the living room floor, a stainless steel kitchen knife with a bent blade, blood stains on the walls of the living room, bathroom and hallway and blood stain drag marks on carpet between the living room and bathroom. You and Mr Potter were arrested and you made no comment, when interviewed. You were released. You made a recorded phone call to Gregory Hartley, telling him about the raid on your home. He immediately asked where your 'shooter' was.

31 Mr Krelekamp was arrested on Friday 17 December 2010, when police intercepted a motor vehicle he was driving and found blood stained items in the boot. On Sunday 19 December 2010, he gave police an account of Ms Pratt's death and directed them to Silvan Road, Olinda. There, they located Ms Pratt's body approximately 30 metres from the road in dense bushland. You and Mr Gibson were re-arrested. Once again, you declined to comment when interviewed. You were both charged with Ms Pratt's murder and remanded in custody.

32 Dr Burke conducted the autopsy on 19 December 2010. He found three gunshot entry wounds. He concluded that Ms Pratt had received a non-fatal shot to the right jaw bone, with extensive fracturing as a result. There was a second gunshot entry wound on her left temple and a third in her right eye. Dr Burke recovered two projectiles from inside her skull and another from her hair. There were two stab wounds to her chest. Because of severe post-mortem decomposition, Dr Burke was unable to make any finding in relation to the alleged cutting of Ms Pratt's throat.

33 On 9 May 2011, you were recorded discussing Ms Pratt's murder with Mr Hartley during a prison visit. You said that his gun was used and had been given to Mark Mennie for disposal. Mr Mennie later told Mr Hartley in a recorded conversation that he had disposed of the gun after having been told to do so.

34 On 24 October 2011, you entered an early plea of guilty to Ms Pratt's murder.

35 Ms Pratt's family members have provided victim impact statements poignantly describing the terrible consequences of your crime and its ongoing effects upon each of them.

36 Mrs Julie Pratt read her statement aloud at the plea hearing. She has lost her beloved daughter and is haunted by the fact that her grandchildren, who were only seven and four years old when she wrote, must grow up without their mother. Her life has been turned upside down by her anguish and grief. She and Ms Pratt's sisters, Ms Bianca and Ms Nadine Degering, tell of Ms Pratt's complex life, her kindness and loving personality and the devastation they feel now that she is gone. Her aunt, Ms Suzy Klear, is also badly affected by her loss. She too read her statement aloud. She speaks of the impact of Penny's death on those closest to her. Each of them must live with the horror of knowing how she must have suffered and the appalling way in which she was treated.

37 It is impossible to convey the full effect of your crime upon those who have lost Ms Pratt. That impact includes their involvement in the court process - a very hard thing for suffering people. Whilst I have mentioned only a very small part of what they have said, I have taken into account everything Ms Pratt's family has spoken about.

38 You are now 33 years old. You describe your family as loving and caring. Your father is an industrial chemist and your mother has worked in administration. Your 35 year old brother and 28 year old sister are both employed in the information technology industry; your sister in the United States. You were educated in Heathmont to Year 12 standard. You obtained a 'TER score' of 25, but consider yourself probably more academically capable than that result indicates.

39 Drug taking has been a feature of your life from your late teens when you started experimenting, initially with marijuana. You moved on to so-called 'party drugs' like ecstasy tablets when you were about 19 and began to experiment with amphetamine and crystal methyl amphetamine in your 20s.

40 You did complete a two year hospitality/management diploma at TAFE which led to 18 months work at Crown Casino and some months employment at a hotel front desk.

41 Drug use has been a feature of your relationships. At about 21, you left home to live with a girlfriend for about four years and your drug taking escalated. You worked installing blinds for approximately three years, to your mid-20s. Casual labouring jobs followed and then you were a driver delivering photocopiers, again for approximately three and a half years. Along the way, you acquired truck and forklift licences and a transport and distribution certification.

42 You returned home for about three and a half years. Your parents attempted to convince you to go into rehabilitation, but, to their frustration, you indicated that you considered your 'drug friends' as 'family'. Your parents tried to help you by attending Anglicare sessions for parents of drug addicts to gain some insight into your problems.

43 You began a relationship with a heroin-addicted woman whom your parents regarded as unreliable. You ultimately discovered that she had several other boyfriends, all supporting her financially. You ceased the photocopy delivery work in June 2010, when you learned she was involved with your employer's son. You then became more involved with drugs and depressed.

44 Your erratic employment and drug use between the ages of 20 and 25 led to accumulated credit card debts of approximately $8,000. You also dabbled in gambling. You were constantly harassed by debt collectors.

45 Your drug use escalated and you started experimenting with amphetamine and crystal methyl amphetamine, which you began injecting in your mid-twenties. You also self-medicated with non-prescribed Temazapam, Xanax and Seroquel, to moderate the destabilising effects of drugs on your mood. You tried but disliked heroin. You suffered from paranoia over the years.

46 When you were addicted to methyl amphetamine and crystal methyl amphetamine in your mid-to-late 20s, you felt invincible, although you had never previously had a problem with violence. Your parents described you as a very gentle, kind and caring person, who did not steal from them and treated them with respect.

47 Early in 2010, you again returned home to live. By the middle of that year, you had left your job and your paranoia had returned. You were worried about the house being watched and bugged. You were worried about your ex-girlfriend, who frequently contacted you in relation to drugs. You told your parents that you had been kidnapped and tortured by a bikie friend of hers. You believed you were going to be murdered towards the end of 2010. You lost weight and had problems sleeping.

48 On 6 July 2010, you attended your general practitioner who noted your marijuana and amphetamine use and prescribed the anti-depressant, Lovan. You were referred to a psychologist, Mr Richard Kaa. You presented on 13 July 2010 as having 'drug-related relationship difficulties' and using 'speed, ice, ecstasy [and] dope'. You were assessed as extremely severely depressed and anxious and moderately severely stressed.

49 You murdered Ms Pratt whist on bail granted on 14 September 2010 by the Melbourne Magistrates' Court, pending your trial for alleged dishonesty and violence said to have occurred in August 2010. (Counsel submits that identity was in issue and that you were subsequently acquitted of these charges.) Your bail conditions required residence with your parents and included a curfew between 10.00pm and 6.00am. You were also required to comply with the requirements of the CREDIT/Bail Support Program, which included not committing a criminal offence.

50 You later told the forensic psychologist, Mr Jeffrey Cummins, that you obtained the gun several weeks before the murder, as protection, because of the alleged kidnapping. You also claim to have been inexplicably bashed by your best friend a couple of weeks before the murder.

51 You told Mr Cummins that you had no reason for shooting Ms Pratt apart from your feeling distressed and confused about the fact that she and Mr Potter were arguing about a small amount of money allegedly owed to her by him. You said that you had no conflict with her. You did owe Mr Krelekamp $900 for amphetamines. He was very agitated and, at the time of the shooting, he was complaining that he owed $18,000 to 'heavy people' for drugs and was looking for financial help from you. Everything just 'got' to you and you were worried about what would happen if Mr Krelekamp did not pay his debts. You say that you 'lost the plot' and shot Ms Pratt when you were at least partly out of touch with reality because of your drug affected state. You panicked.

52 Mr Cummins provided a report after assessing you at Port Philip Prison on 4 December 2011 and 24 March 2012. He concluded that, at around the time of the murder, you had been experiencing an Amphetamine-Induced Mood Disorder and possibly an Amphetamine-Induced Psychotic Disorder with delusions and/or hallucinations. He thought that your sleeping difficulties at about that time were partly amphetamine-induced and partly reflected your acute grief as a result of your girlfriend's infidelity. Mr Cummins thought that your 'extreme offending behaviour was a direct by-product of [your] drug-induced confusion/paranoia/relative detachment from reality'. He thought your chance of re-offending would be significantly reduced if you remained drug free in the long term.

53 The influence of alcohol or drugs upon an offender may be regarded as an aggravating or mitigating feature of the crime, depending on the circumstances. It will be aggravating where it can be established beyond reasonable doubt that the offender had some foreknowledge that their effects would increase the likelihood of the offending behaviour.[2]

54 The Crown concedes that the evidence does not establish this foreknowledge in your case. It does argue, however, that your drug affected state should not be regarded as a mitigating feature of your offence. You submit that it should, on the basis of your long history of drug taking without violence.

55 The Crown submits that I should be satisfied beyond reasonable doubt, as I am, that you at least knew, generally, that the drugs you had taken could impair your thinking by affecting your judgment, so that you could behave irrationally and that they could also limit your ability to maintain self control. I am satisfied that you had this degree of foreknowledge. There was evidence of a 6 July 2010 GP Mental Health Care Plan document which records a mental status examination by Dr Li. He noted your symptoms of anxiety, including aggression, your lack of normal judgment or ability to make rational decisions and that you were 'potentially' a risk to others. Dr Li records that you were working as a truck driver and had crashed the truck into a client's car when you had last worked. Your employer had told you that you could not return to work unless you saw a psychologist.

56 Dr Li referred you to Mr Kaa whose clinical notes, made between July and October 2010, record your 'paranoid thinking' and 'drug induced psychosis', resulting from polysubstance abuse. I also note that you indicated your awareness of the effects of drugs upon you when you subsequently described your history to Mr Cummins.

57 In all the circumstances, I do not regard your self-induced drug-affected state as either an aggravating or a mitigating factor in sentencing you.[3]

58 It is an aggravating feature of your offending that you were complicit in Mr Potter's actions with regards to Ms Pratt's body after he shot her. You not only failed to stop him from what he went on to do to her, but, at one point, you encouraged him to keep going and to 'finish the job'.

59 Further assaults to the body of a murder victim are aggravating features of the crime, and not merely because they show lack of immediate remorse.[4]

60 You then left Ms Pratt's body exposed in dense scrubland. Not only was her body vulnerable in obvious ways, this also prevented her suffering family from knowing where she was and made it unlikely that she would be discovered. This, too, I regard as an aggravating feature of your offence.[5]

61 It is another aggravating feature of your offence that, when you murdered Ms Pratt, you were on bail.[6] I agree with the Crown that it is irrelevant that your bail was for unrelated charges for which you were subsequently acquitted.

62 I take it into account in your favour that you pleaded guilty early. This entitles you to a discount on your sentence. The plea was made in circumstances where you could have taken issue with the reliability and objectivity of the Crown's most important witness, Mr Krelekamp. The significance of your guilty plea is heightened by the serious nature of the offence charged.[7]

63 I also accept Mr Cummins' opinion that you are remorseful and regretful and that, when talking to him, you showed empathy for your victim. Indeed, counsel informed the Court of your remorse at the plea hearing. This is a mitigating factor. You have also indicated your willingness to undertake an anger management program and had already completed a ten week Salvation Army positive lifestyle program in prison by the time you spoke to Mr Cummins.

64 I note, however, that I am less persuaded by the submission that, when you spoke to Mr Hartley several months before your guilty plea, you showed remorse by seeming quite distraught about what had happened. It seems possible that your own plight might have been a source of your distress at that time after your arrest.

65 Whilst you are relatively young, it is also significant that you have reached the age of 33 with no criminal record or other history of violent behaviour.

66 Your conduct since being incarcerated shows that you appear to be taking responsibility for your offending. You have completed the positive lifestyle course and have gained certificates for training in areas which include food safety procedures, fitness and workplace safety. You have attended a weekly Christian fellowship discussion, you are engaged in bible study and you are investigating other study options. You have been working as kitchen billet in the protective custody unit.

67 You also have your parents' support and have recently re-established communication with your elder brother. You are being treated for depression and random screening has not shown any drug taking. You state that you are committed to remaining drug-free. This is significant, given Mr Cummins' opinion that your risk of re-offending would be significantly reduced, if you remain drug free on a long-term basis.

68 I do, nevertheless remain somewhat guarded about your rehabilitation prospects, given that you have made previous unsuccessful attempts to abstain from drug taking and it is long-term abstention which is required, according to Mr Cummins. I also note, more generally in relation to your prospects of rehabilitation that your parents have noted that your enthusiasm for bettering yourself through education has tended to wax and wane. I regard your prospects of rehabilitation as reasonably good in the circumstances.

69 Counsel on your behalf sought to rely upon limitations relating to your ongoing status as a protected prisoner to argue that any sentence imposed would be served under more arduous conditions than were the norm for mainstream prisoners. It was submitted that you are likely to remain under protection throughout. You told Mr Cummins that this was because of the connections of Ms Pratt and your former partner with mainstream prisoners from the 'drug world'.

70 Little information was given as to how you might be restricted, so I asked the parties for details of possible limitations. Mr Brendan Money, the Director, Sentence Management Branch of the Department of Justice, has provided unchallenged information to the Court which I accept. Accordingly, I am satisfied of the following matters. A Sentence Management Panel will determine your classification and placement within the prison system. Protection status is different from allocation to a management or high security unit for reasons which may include prisoner safety. Approximately 27 per cent of all prisoners in Victoria are classified as protected. A protected prisoner can access programs and services 'at a generally equitable level to mainstream prisoners'. Protection does not require separation from other prisoners or restricted living conditions. Where protection and mainstream prisoners are at the same institution, the primary difference is that protected prisoners mix with fewer others.

71 I take it into account that you may be held under such conditions throughout. I also accept counsel's submission that there may be some stigma attached to classification as a protected prisoner.

72 Your crime is a serious example of a serious offence, involving shockingly callous treatment of your vulnerable victim.

73 Bearing in mind both the aggravating and mitigating features of your offending, I will sentence you to 22 years' imprisonment and fix a non-parole period of 19 years.

74 I declare, as required by s 6AAA of the Sentencing Act 1991, that I would have imposed a sentence of 26 years' imprisonment and fixed a non-parole period of 23 years, but for your guilty plea.

75 I also declare in compliance with s 18(1) of the Sentencing Act 1991, that the period of 616 days during which you have been in custody, including today, be reckoned as a period of imprisonment already served under the sentence imposed. I order this declaration to be noted in the records of the Court.

[1] R v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

[2] See R v Humphries [2010] VSCA 162, [7] (Maxwell P and Redlich JA, Mandie JA agreeing).

[3] See DPP v Arvantidis [2008] VSCA 189, [34] (Redlich JA, Buchanan and Nettle JJA agreeing).

[4] DPP v England [1999] VSCA 95 (Brooking JA (Batt and Chernov JJA agreeing)).

[5] R v Kellisar [2001] VSCA 224, [12] (Brooking JA (Winneke P and Buchanan JA agreeing)).

[6] R v Basso & Frazzetto [1999] VSCA 201, [23]-[26] (Chernov JA), [57]-[63] (Charles JA) (Batt JJA agreeing).

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