DPP v Hillman [2024] VSC 100

2 During the early evening of 18 September, Mr Williams had been at home with his family. A few hours later, he went to a house in Frankston. You were already at the Frankston house when Mr Williams arrived around 7:40pm. The two of you had not met before, but were both friends of Bronson Tyler, the occupant of the house.

3 That Frankston house was regularly used as a place where Mr Tyler and his friends would use drugs. That night was no different. Five of you, including Mr Williams, sat in a bedroom smoking methylamphetamine ("ice") together. You had also used GHB earlier that day.

4 Before the shooting, you were lying on a bed in the bedroom. Two women were sitting beside you on the edge of the bed. Your friend, Richard Clarke, was sitting on a nearby stool, and Mr Williams was sitting on a chair in the corner of the room. You were all in close proximity to each other, and getting on well initially.

5 At some point, a verbal argument broke out, after you took offence to something Mr Williams had said. The exchange quickly became heated, and turned into a physical confrontation. Neither of you backed down, despite Mr Clarke's attempts to diffuse the situation. You shoved Mr Clarke out of your way, went over to your bag, pulled out a gun, and directed it at Mr Williams. He did not back down when you told him to do so. You both continued to argue, before you fired the gun once towards his neck area, killing him instantly.

6 Immediately after shooting Mr Williams, you demanded that Mr Clarke drive you to Frankston. You were still holding the gun. Whilst in the car, you said to Mr Clarke "I am sorry. I know he is your mate, but he overstepped the mark."

7 One of the other people in the house called "000". By the time emergency services arrived at the scene, everyone else had fled the house.

8 Upon entering the house, police saw a large wound to Mr Williams' neck, which was later confirmed to be the fatal gunshot wound. Mr Williams was pronounced dead at the scene.

9 At some point in the next day or two, you called your ex-partner, Kristal, and told her you had "shot someone in the face" and that you were not joking. She hung up on you.

10 Between 21 and 24 September, you engaged in a series of erratic and violent incidents towards various people, as you tried to avoid capture by police.

11 Three days after the shooting, on 21 September, you arrived at the home of Kane Allardyce, who had been at the Frankston house when you killed Mr Williams. You entered his house, carrying the gun in your bag. You seemed agitated and on edge. You demanded that Mr Allardyce take you for a drive.

12 Mr Allardyce agreed to drive you. While you were in the car, you produced the gun and told Mr Allardyce where to go. Mr Allardyce was afraid of you, because of the gun. That conduct constitutes the charge of common law assault.

13 You ordered Mr Allardyce to drive you to Frankston to pick up a female friend, and then to drive to another address in Frankston. When you got out of the car, you seemed agitated and paranoid. You kept checking the windows and the house for approaching police. You then told Mr Allardyce and your female friend that you would hold them at gunpoint, unless they left the premises immediately, so they fled.

14 Shortly after 10:00am on 24 September, you went to another house in Frankston. The occupant, Gina Titos, and a friend who was visiting her, Vasilios Georgopoulos, were total strangers to you. When you knocked on the front door, Ms Titos and Mr Georgopoulos were sitting in the courtyard. They heard you say that there had been some damage to Ms Titos' vehicle. When Ms Titos opened the front door, you stepped inside, holding a gun. You demanded that Ms Titos get her keys and drive you. You told her repeatedly to hurry up. You also said "I'm sorry, I have to do this. I'm not going to hurt you, I didn't mean to do this."

15 Ms Titos recognised you from the news as a person wanted by police. She complied with your demand and got her keys. She then drove you and Mr Georgopoulos to an address in Seaford. You were sitting in the back seat, holding the gun, for the duration of what was a terrifying ordeal for both of them. When you got to Seaford, you got out of the car and were last seen jumping over a fence. The entire incident lasted 14 minutes. That conduct constitutes the two charges of kidnapping.

16 After leaving Ms Titos' car, you went to a house in nearby Cranbourne, where your ex-partner, Kristal, was living. You used her phone to call one of the police investigators. You told them that you wanted police to give you 12 hours of "peace", after which you would surrender yourself. You told police that you were armed with a shotgun.

17 During that phone call, and in a later call to police, you made a number of admissions to having shot someone in the face. You gave slightly different explanations as to what you said the other person had done to provoke you. You also said you didn't feel bad about it. You then conducted a siege-type situation for many hours, keeping the police at bay.

18 Around 11:00pm that evening, you swallowed a poisonous substance and climbed into the roof space of the house. About 20 minutes later, police found you unconscious in the roof space. You remained unconscious in hospital until 30 September.

19 You were formally interviewed in relation to the murder on 16 November 2021. During that interview, you admitted to having been in the bedroom and having a verbal argument with Mr Williams. You said that when Mr Williams stood up and had "a crack" at you, he had something in his hand. You said you stood up and grabbed your gun and warned him not to come closer, but he ignored you. You said the shooting occurred when he grabbed the gun and it accidentally discharged.

20 In pleading guilty to murder, you have accepted that the gun did not discharge accidentally; rather, that you fired it deliberately, with the intention of causing really serious injury to Mr Williams.

21 There are a number of matters that are relevant to assessing the objective gravity of your offending.

22 You shot Mr Williams in the course of a brief, spontaneous, drug-fuelled, verbal altercation with him. You were not deterred by any attempts to diffuse the argument. I accept that Mr Williams' comments may have been offensive to you, but they did not justify you resorting to violence, let alone lethal violence.

23 You told police that you felt threatened by Mr Williams, because he came at you with something in his hand. You later told a psychiatrist that you had seen the glint of a knife in Mr Williams' hand. The police did find a butter knife under Mr Williams' body. It was not sharp and, objectively, would not have represented any real threat to you. You had been seriously stabbed before, and may have been hypersensitive to the possibility of being stabbed again. I accept that paranoia and drug intoxication may also have distorted your perception of the threat that the knife actually posed. However, your actions in grabbing a loaded shotgun, and intentionally shooting Mr Williams in the neck with it, were totally disproportionate to any threat he may have posed to you.

24 You had brought the loaded shotgun with you to the Frankston house, after obtaining it three weeks earlier. It seems that you had been carrying it around with you since then, in a paranoid state of misguided fear that the police wanted to kill you. Although your intention to cause really serious injury to Mr Williams was formed very quickly, you swiftly resorted to using a lethal weapon as soon as you felt offended or threatened.

25 After the killing, you correctly assumed that the police were looking for you. Your longstanding paranoia about the police, combined with mental health problems and ongoing drug abuse, led you to flee and engage in the later offending.

26 You continued to carry the loaded shotgun around with you for almost another week, until you were finally arrested by police. The rolled up charge of being a prohibited person in possession of a firearm is one that covers your possession of the firearm during the incidents involving Mr Allardyce on 21 September, Ms Titos and Mr Georgopoulos on 24 September, and the siege incident on 24 September 2021.

27 The offence of common law assault in relation to your acquaintance, Mr Allardyce, was not spontaneous. You deliberately travelled to his home with a gun, which you brandished to ensure that he drove you where you wanted to go.

28 There are some serious features of the two kidnapping charges. You attended the house of a complete stranger, armed with a gun. Ms Titos and Mr Georgopoulos were entitled to feel safe within the privacy of Ms Titos' home. You induced them to open the door under false pretences, misleading them to believe that one of their cars was damaged. Even though you were saying that you didn't want to hurt them, you held two vulnerable people at gunpoint, for almost quarter of an hour, in a confined space, in what would have been a terrifying ordeal for anybody.

29 Before I consider your personal circumstances, I want to say something about the effect your offending has had on others.

30 Jake Williams was 34 years old when he died. In their victim impact statements, his family members describe their profound grief and pain at losing him. They miss him every day. They dread the thought of family occasions and events that were once happy celebrations, as they now only mark the terrible pain they feel at having lost Mr Williams. They miss his funny, cheeky sense of humour, and his kindness. They are all suffering in various ways. Losing Mr Williams has affected their physical and mental health, their work, their self-confidence, and their ability to trust the world around them.

31 Even though Mr Williams' longstanding drug addiction had presented many challenges to family relationships over the years, it is clear that he was a much-loved son, brother, uncle, nephew and friend.

32 Ms Titos and Mr Georgopoulos both provided very moving victim impact statements, which highlighted the serious impact the kidnapping has had on them and their lives. Ms Titos was 65, and Mr Georgopoulos was 76, when they were kidnapped. They both feared that they were going to die, as you forced Ms Titos to drive you around at gunpoint. Your actions have left them both with an acute sense of fear and distress. They are now afraid to leave their homes - to go out and see friends, to go fishing, or to engage in everyday activities - especially at night. They have trouble sleeping. Their friendship has also suffered as a result of your actions, as they now only speak over the phone. Your actions have irreparably damaged their enjoyment of their lives.

34 You were born in March 1978 and are now 46. You are the eldest of seven children born to different fathers.

35 You were made a ward of the state when you were only three months old. Your mother had psychiatric issues, as well as drug and alcohol problems, throughout your childhood. When you were three months old, your grandmother kidnapped you, apparently in an attempt to save you from your own mother. Your grandmother was also deemed an unsuitable guardian, and was charged with kidnapping, which precipitated your transfer into state care. Although you had some limited contact with your mother during your childhood, it was usually so that you could babysit your step-siblings for her. On one occasion in your teens, your mother tried to kill you with a baseball bat, for which she was criminally charged. You were also sexually abused as a child.

36 You spent the first 14 years of your life being passed around foster homes, children's homes and boys' homes; you had at least 60 different placements during that period.

37 It is clear that you experienced acute physical and emotional neglect, deprivation and abuse as a child, and profoundly lacked the most basic level of security and stability that any child deserves. Unsurprisingly, you displayed behavioural problems from an early age. You started seeing a child psychiatrist when you were only 4.

38 You did not continue schooling beyond Grade 2. You started running away from institutional care when you were 10, and began living on the streets or in squats. At 13, you began carrying a knife for self-defence.

39 You began using illegal drugs at a very young age. By your early teens, you regularly smoked marijuana and had started snorting amphetamine. You later progressed to intravenous amphetamine use. You used heroin for six months when you were 15, but stopped using it after an overdose.

40 Your behaviour seems to have been unmanageable for those entrusted to look after you in institutional care. You began engaging in criminal activity at a young age. Eventually, your criminal offending led you to spending most of the period between the ages of 15 and 19 in juvenile detention.

41 When you were 16, you were seriously beaten up by police. That appears to have had a significant impact on you, and contributed to your longstanding distrust of police.

42 Around that same age, you were sent to an adult prison, where you were raped by two older prisoners.

43 The pattern of drug taking and criminal offending continued after you reached adulthood. You have never been drug free in the community for more than short periods of time. You have been a regular user of amphetamines, describing them as your favoured drug, because they make you feel better about yourself and take your worries away. In the six months leading up to this offending, you were using ice very heavily. In the past, you have experienced auditory hallucinations and paranoid delusions when using amphetamine.

44 You have been in and out of prison for most of your adult life. Much of your offending has involved property and drug offences. More concerningly, you also have multiple convictions for violence, including assaults, carrying a dangerous article or prohibited weapon, making threats to kill, stalking and breaching intervention orders. However, none of your past convictions has been for conduct as serious as the current offending.

45 You have very little work history, although there was a period in your late 20s when you managed to sustain a job as a supermarket manager for a couple of years.

46 You are still in contact with one of your siblings, but appear to have no other supports in the community.

47 When you were 14, you began a relationship with a girl you met whilst living in a hostel; she was two years younger than you. You were together for three years, and had a son together. Your son has rejected any later contact with you.

48 You fathered a daughter when you were in your late 20s, but have no contact with her either.

49 The relationship you were in at the time of this offending ended after you were remanded in custody. You are not in any current relationship.

50 As far as your cognitive functions are concerned, your IQ is within the average range. You possess reasonable literacy skills, but underdeveloped numeracy skills (most likely as a result of your lack of formal education).

51 The court had the benefit of psychiatric and psychological reports from various experts, relating to some earlier court appearances, including reports by the following: consultant psychologist, Mr Warren Simmons, dated 20 March 2012; forensic psychiatrist, Dr Paul Mullen, dated 13 June 2012; and consultant psychiatrist, Dr Lester Walton, dated 29 September 2014 and 23 March 2021. For the purposes of sentencing for this offending, Dr Walton provided two further reports, dated 9 August and 12 September 2023. Those reports provide an overall picture of your extensive psychiatric history over many years.

52 You have longstanding problems with low self-esteem and serious depression. That has led to many episodes of self-harm and suicide attempts. As an adolescent, you would frequently cut your arms, as a way to cope with your anger and anxiety, and to "feel better". As an adult, you have tried to end your life many times, through numerous different methods.

53 You also meet the diagnostic criteria for borderline personality disorder. A personality disorder is diagnosed when a person displays enduring deficits in areas of thinking, feeling and behaviour, particularly in terms of impulse control, lack of consequential thinking, and issues relating to others. Borderline personality disorder, in particular, is recognised as being one of the most severe types of personality disorder. The associated impairment and disability of borderline personality disorder, from a psychiatric perspective, is often equivalent to the most serious psychotic illnesses, such as schizophrenia. People with borderline personality disorder commonly have a history of childhood trauma.

54 Your particular symptoms of borderline personality disorder include: an inability to moderate your mood; lack of consequential thinking; engagement in impulsive and self-destructive behaviours; difficulty in maintaining relationships, and not being able to properly evaluate the actions and motivations of others. You have also experienced brief psychotic episodes, which have become more extended when you were using drugs.

55 Your mental health challenges have also been characterised by your deeply-entrenched distrust of, and paranoia about, police. You believe that your fear of police is well-founded, arising from your experiences with them as an adolescent and adult. Your sensitivity or suspiciousness is also often directed at others; you often feel that members of the general public are staring at you, conspiring with police, or making fun of you.

56 As a result of your intense paranoia about police, you have been involved in at least six previous "siege" situations, in which you have held something or someone hostage in order to allay police intervention. You have described those as a self-protective measure, as you believe that you are less likely to be harmed by police in a situation that attracts a wider audience.

57 There is no dispute that your circumstances give rise to both Bugmy[1] and Verdins[2] considerations.

58 In Bugmy, the High Court acknowledged that the effects of profound childhood deprivation may compromise a person's personal development, including their capacity to control their impulses, and do not necessarily diminish with the passage of time. That may reduce the offender's moral culpability to some degree. The precise weight to be afforded to the effects of social deprivation in an offender's youth and background requires individual assessment in each case.

59 You have been left severely damaged by the neglect, abuse and trauma that characterised your childhood and adolescence. There is no dispute that the Bugmy principles apply, so as to mitigate the sentence to be imposed.

60 However, as the High Court also acknowledged in Bugmy, the inability of an offender to control their violent response to frustration may decrease moral culpability, but increase the importance of protecting the community. That is the case here, as the damaging effects of your upbringing are likely to be profound and lasting.

61 Your counsel argued that Verdins principles 3, 4, 5 and 6 also apply in your case, so as to further reduce the sentence that would otherwise be imposed.

62 Dr Walton said that your borderline personality disorder does not provide a comprehensive explanation for any of your offending. However, it does provide an indirect contribution, in the sense that your disorder makes you prone to acting impulsively and without proper consideration for the consequences of your actions.

63 It is clear that you were highly paranoid at the time of the murder and the later offending. There is no suggestion that you were in a drug-induced psychosis at the time of any of this offending. However, Dr Walton noted that the amount and combination of ice and GHB that you were regularly taking during this period was particularly toxic in terms of disinhibiting any aggressive urges and causing paranoid thinking.

64 It is difficult to assess the precise extent to which your mental health problems (as opposed to your illegal drug use) contributed to your offending, but I accept that there should be some moderation of general and specific deterrence on account of your borderline personality disorder.

65 As far as the remaining Verdins principles are concerned, no issue is taken with Dr Walton's general observation that imprisonment can be onerous and harmful for persons suffering from borderline personality disorder. Although you have previously attempted suicide and engaged in self-harm whilst in custody, you have also done so when out in the community; it is not possible to conclude that imprisonment has been the cause of such behaviour. On the one hand, you have clearly become institutionalised by your childhood and adult experiences, to the point where you have said that you actually prefer the structure and routine of prison, as opposed to having to cope on your own in the community. On the other hand, the type of intensive mental health interventions and treatment that would be required to address your borderline personality disorder are unlikely to be available in custody, meaning that imprisonment is likely to have a further adverse effect on your mental health. Your sentence should be further moderated to reflect those matters.

66 Your prospects of rehabilitation must be regarded as poor, based on your history, including extensive criminal offending, institutionalisation, substance abuse, and the various matters that give rise to the Bugmy and Verdins principles. That said, you will be a relatively old man when you are ultimately released from prison for these offences.

67 There are a number of other matters that are relevant to sentencing you.

68 You have pleaded guilty to all of the current charges, but did so at different times and in different circumstances.

69 You were charged with murder on 4 October 2021. After a contested committal hearing in November 2022, your murder trial was listed to begin in this court in late August 2023. You accepted the sentence indication which I gave on 31 August 2023,[3] and pleaded guilty to murder on 1 September 2023.

70 On 2 February 2022, you were charged with two charges of kidnapping, two charges of possessing a firearm as a prohibited person, and common law assault. After a contested committal in July 2022, you pleaded guilty to those five charges in the County Court on 26 October 2022.

71 After you pleaded guilty to murder, with the consent of the parties, I ordered that the County Court charges be uplifted to the Supreme Court, to be heard as a combined plea on both indictments.

72 The prosecution subsequently filed over the original County Court indictment with a new indictment, containing one rolled-up charge of prohibited person possessing a firearm (this rolled-up charge covered the days, other than the day of the shooting, that you were in possession of the firearm); two charges of kidnapping, and common law assault. You were arraigned and pleaded guilty to the four charges on the new indictment on 14 December 2023.

73 Your plea to the murder charge is a late one. However, your pleas to the other charges were made at a relatively early stage.

74 You are entitled to a discount on the sentences to be imposed, in recognition of your pleas, and their utilitarian value. Your pleas have facilitated the course of justice. The community has, by your pleas been spared the time and cost of two trials. Your kidnapping victims, and the family and friends of Mr Williams, have been spared what would have been traumatic trials for all involved.

75 During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In Worboyes[4], the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.

76 In fact, the Supreme Court has long since cleared its pandemic backlog. The County and Magistrates' Courts both announced before the end of 2023 that they had cleared theirs too. Custodial conditions have largely returned to their pre-pandemic state. In those circumstances, any Worboyes discount in your case must be very modest.

77 I also accept that some of your time in custody has been made more difficult by the various restrictions that were in place during the COVID-19 pandemic, particularly by frequent lockdowns during your early months in custody.

78 In relation to the kidnapping charges, I accept that you are genuinely remorseful for your actions. Throughout the kidnapping, you kept apologising to Ms Titos and Mr Georgopoulos, reflecting that you were aware of just how frightening your actions were for them. In your record of interview, you stated that they "seemed like really nice people" and that you "felt bad for them".

79 However, you have expressed little remorse for killing Mr Williams. Especially around the time of the killing, you blamed Mr Williams or said that he was killed accidentally. That said, some of the features of your personality disorder are likely to still genuinely affect your perception of events and your capacity to express remorse.

80 The maximum penalty for murder is life imprisonment. The maximum penalty for kidnapping is 25 years; for possessing a firearm as a prohibited person is 10 years; for common law assault is 5 years.

81 Murder has a standard sentence of 25 years' imprisonment. The standard sentence for an offence is the sentence that, taking into account only the objective factors, is the middle of the range of seriousness for that offence. The objective factors look only at the offending conduct, and exclude any matters personal to the offender.

82 A standard sentence is not the same thing as a mandatory sentence. Nor is a standard sentence the primary sentencing consideration, or the starting point from which to add or subtract time. It is just one of the many matters to be taken into account by a court in performing the instinctive synthesis method of sentencing.

83 Under Part 2A of the Sentencing Act, this murder is also classified as a serious, violent offence, due to your past offending. I am therefore required to consider protection of the community as the principal sentencing purpose when sentencing you for the charge of murder. However, the prosecution does not suggest that I should impose a disproportionate sentence in order to achieve that purpose.

84 On the charge of murder,[5] I sentence you to 23 years' imprisonment. This will be the base sentence.

85 On the rolled-up charge of possessing a firearm as a prohibited person,[6] I sentence you to 18 months' imprisonment.

86 On the charge of common law assault,[7] I sentence you to 6 months' imprisonment.

87 On each of the two charges of kidnapping,[8] I sentence you to 5 years' imprisonment.

88 As far as the question of cumulation of sentences is concerned, these offences were committed over a total period of 7 days, and involved a number of different victims and incidents. There is also a presumption of cumulation, by reason of the fact that you are being sentenced as a serious violent offender. However, there still needs to be some concurrency to reflect the principle of totality, as well as the fact that the later offending occurred within the broader context of the drug-fuelled, paranoid state in which you committed the murder.

89 I order that the following periods on the subsequent charges be served cumulatively on the base sentence:

(a) 6 months for the charge of possessing a firearm as a prohibited person;

(b) 2 years and 2 months for each of the kidnapping charges; and

That makes a total effective sentence of 28 years. I set a period of 23 years as the time you must serve before you are eligible for parole.

90 Had you not pleaded guilty I would have sentenced you to a total effective sentence of imprisonment of 32 years, with a non-parole period of 27 years.

91 Further, I declare that the period to be reckoned as already served under this sentence is 931 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

92 I have already made the forfeiture order requested by the prosecution.

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

[2] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.

[3] I gave a sentence indication for murder alone of 23 years' imprisonment with a non-parole period of 17 years.

[4] Worboyes v The Queen [2021] VSCA 169.

[8] Charges 3 and 4 on indictment N10279577.1.