DPP v Jamieson [2016] VSC 407

2 You and your wife, Janice, had been living on a farm on Wedderburn-Logan Road, outside of Wedderburn, for many years.

3 Since 2006, the Lockharts had been living on a farm, just along and across the road from your farm. Peter Lockhart was 78, and Mary Lockhart was 75, at the time of their deaths. Mr Lockhart was semi-retired, but remained active around the farm.

4 Gregory Holmes was a former armourer in the Australian Army, who served in Iraq, East Timor and Afghanistan. He was discharged from the army for medical reasons in 2012. At the time of his death, he was 48.

5 In early 2014, Mr Holmes moved to a property on Mulga Ridge Road, Wedderburn, to be closer to Mary Lockhart, who was his mother. Your properties adjoined each other, and were separated by a typical rural wire fence. One of the means of access to the Holmes farm was via a road reserve, which ran along your boundary fence, on the Holmes side of the fence. The occupiers of the Holmes farm were allowed to use the road reserve, under the terms of a licence from the Department of Environment and Primary Industries.

6 Initially, relations between you and the Lockharts were cordial. However, in later years, relations had soured substantially, mainly as a result of Mr Lockhart's use of the road reserve. He used it with the permission of the previous owners of the Holmes farm, when doing work on their farm, or getting water from one of their dams. You complained that use of the road reserve led to dust blowing onto your farm, dirtying your house and polluting your drinking water. The relationship went further downhill after Mr Holmes moved in, because Mr Lockhart used the road reserve more frequently, in order to visit his step-son. Over time, you became utterly obsessed with their use of the road reserve.

7 It is clear from things you said to your friends and, later, to the police, that you had been feeling aggrieved by Mr Lockhart's behaviour for some years, and believed that he had been deliberately baiting or provoking you. You also became angry towards Mr Holmes and Mrs Lockhart, largely because of their relationship to Mr Lockhart.

8 On the morning of 22 October 2014, you drove your wife to the Bendigo Hospital, for her to have a medical procedure. The two of you arrived home around 2.30pm.

9 A couple of hours later, Mr Lockhart drove his tractor, towing a small water-tanker trailer, along the road reserve. CCTV footage shot from your property showed him driving slowly, not creating any dust. You went outside, walked towards the boundary fence, then went back inside. A couple of minutes later, you called the Wedderburn police station; it was unmanned, and you left no message. You later told police that Mr Lockhart had yelled abuse at you, as he drove up the road reserve.

10 Mr Lockhart spoke on the phone with one of his friends, for more than 10 minutes, around 7.45pm that night. Mr Holmes also spoke on the phone and exchanged text messages with his partner, Lynette Mordue; their last contact was at 7.55pm. At no time during those calls or messages did Mr Lockhart or Mr Holmes mention you, or suggest that they had any issues concerning you.

11 Sometime between 7.55pm and 8.14pm, you walked towards Mr Holmes' house. You climbed over or through the wire fence, onto the road reserve on Mr Holmes' side of the fence, and confronted him.

12 At 8.14pm, Mr Holmes called the Wedderburn police station, which was unmanned at the time. He did not leave a message.

13 At 8.15pm, Mr Holmes called 000, requesting the attendance of police to what he described as an emergency. He said you were on his property, and were "annoying the hell" out of him. He said there had been no threats of violence and no weapons involved. He was told to keep it calm until the police arrived.

14 Sometime after this call, and before the police arrived at 8.30pm, you attacked Mr Holmes with a hunting knife, which you were wearing in a leather scabbard on your belt when you went on his property. The precise circumstances of the attack are not known. However, a subsequent autopsy revealed that Mr Holmes had received at least 25 sharp force injuries, including multiple stab injuries to his upper back and neck regions, the back of his head, and his chest. Some stab wounds incised the ribs and vertebra, and punctured his lungs. There was also evidence of blunt force trauma to his head, and defensive-type injuries to Mr Holmes' hands.

15 Notwithstanding the ferocity of your attack, Mr Holmes must have survived for a time, because some nearby campers heard him cry out for help three or four times. They drove over to the Holmes farm to investigate, arriving around the same time as the police, a few minutes after 8.30pm.

16 By the time the police and campers arrived, you had left the scene of the attack, leaving Mr Holmes critically injured on the ground. You later told police that when you left, you thought of Mr Holmes "He's buggered", and decided to "sort this out for good", "to clean the other ones up".

17 You took the knife and walked home. You picked up and loaded two shotguns, and grabbed a pocketful of ammunition. You then walked to the Lockhart farm, looking for the Lockharts.

18 You shot Mr Lockhart when he was on a stone path, at the rear of his house. No words were exchanged before you fired. You shot him twice to the head and twice to the body. You shot him from what you described as point blank range. Two of the shots were fired from a double-barrelled 12 gauge shotgun, and two from a single-barrelled 20 gauge shotgun.

19 You reloaded the 12 gauge shotgun, and used it to shoot Mrs Lockhart - once to the head and twice to the body. Her body was found on the floor of the meals area, inside the back door.

20 I do not wish to cause additional distress by describing in detail the injuries sustained by the Lockharts. However, I have no doubt they would both have died instantly from your shots.

21 At 8.38pm, while the police were speaking to the campers at the Holmes farm, they heard a number of shotgun blasts in quick succession, coming from the direction of the Lockhart farm. The police tried to contact Mr Holmes by calling his mobile phone. When they heard his phone ringing nearby, they searched the property and found his body lying on the ground. By this stage, Mr Holmes had died from the injuries you inflicted. After confirming he was dead, the police left the scene, and directed the campers to do the same.

22 After shooting the Lockharts, you returned home. Your wife saw you covered in blood, and asked what had happened. You told her that you had "shot them" and had stabbed Mary's son while you were fighting. You removed your bloodied clothes, and your wife put them in the laundry basket.

23 At 8.48pm, you called 000 and asked for the police to attend. You said you had just killed three people, your neighbours. You said that they had taken you on, and that they had just "pushed, pushed, pushed and that's it."

24 After receiving the phone call, the police began to make arrangements for your arrest. Around three hours passed, before you were taken into custody. Some media reports have incorrectly reported that there was a siege situation leading up to your arrest; that is not the case. At all times, you made it clear to police that you were ready to surrender yourself. The delay in arresting you was due to police procedures.

25 After calling the police, you went and put one of the guns back in your gun safe. As you did so, you told your wife that you were sorry for what you had done to her, but "they" had pushed you too far.

26 While at home, awaiting the police, you called a number of friends. You said you had killed three people, and were going to be put away for a long time. You asked them to look after your wife. You continued to blame the victims, for causing you to kill them.

27 You were arrested by members of the special operations group at 11.45pm. Whilst you were being driven to the police station, you spoke freely to the police. You said you had killed Peter Lockhart and "his missus", and another bloke whose name you did not know. You repeatedly asserted that they had been pushing you for years, that you just got sick of it, and had had enough. Asked when you had decided to "fix" Mr Holmes, you replied "After they stirred me up, I went there ... Had a go at him, and then he got into me so I finished him off, I think. And then ... I thought, well bugger it, I'm gone, I might as well go and clean the other ones up and that's what I did." Asked what had started things that day, you referred to Mr Lockhart causing dust from his tractor as he drove up the road reserve that afternoon. You alleged that Mr Lockhart only drove on the road reserve to annoy you.

28 You said that after stabbing Mr Holmes, you thought "Well, he don't look too good." You thought "Well, I might as well go and finish the job." You said you were not sorry for what you had done - "They didn't give me any choice."

29 You were formally interviewed twice at the police station on 23 October. You asserted that Mr Holmes had pulled a gun on you, some 6 or 8 weeks earlier; you said that was why you armed yourself with a knife, when you went to confront him. You said that Mr Holmes had attacked you and grabbed your knife. You said you had wrestled it off him, and "I must have stabbed him."

30 You gave inconsistent accounts of who started the confrontation. Early in your interviews, you said you were the one who had started it; that you had gone and "fronted" Mr Holmes. As the interviews progressed, you started to assert that Mr Holmes was the one who had started things, by "roaring out" of his house at you. During the second formal interview, you claimed that you were not even on the Holmes farm when things started - that you had only climbed over the fence in response to his actions and words.

31 As far as shooting the Lockharts was concerned, you told police that you had only gone over to their place intending to shoot Mr Lockhart. You claimed that you had only shot Mrs Lockhart because she came out of the house and had a go at you.

32 Throughout all your conversations with the police and your friends, you downplayed your culpability and actions; you consistently blamed your victims for what happened. You accused them of pushing you too far, tipping you over the edge. You expressed no regret or remorse for your terrible actions.

33 You killed Mr Holmes and the Lockharts for no reason other than your long-standing and powerful animosity towards them.

34 The first murder was preceded by your entering the Holmes farm at night, uninvited, armed with a hunting knife and, at the very least, intending to confront Mr Holmes. He was concerned enough about your presence and behaviour to call the police. Mr Holmes was unarmed when you confronted him.

35 There is no independent evidence as to how the physical altercation between the two of you began. You told police that Mr Holmes had initiated the physical attack, somehow managing to take your knife off you. That seems highly improbable, in all the circumstances. But, even if that version of events was accepted, by the time you came to stab Mr Holmes, the tables had turned completely. On your own admission, you stabbed him when he was pinned underneath you, and unarmed. You inflicted a large number of the more than two dozen stab wounds to the back of his head, neck and body, when he could have posed no conceivable threat to you. You admitted to police that you wanted to kill Mr Holmes. The number, location and severity of the stab wounds inflicted by you clearly demonstrate a murderous intent. When you stabbed Mr Holmes, you were not acting in self-defence, but out of long-standing and utterly misplaced animosity.

36 There is simply no evidence to support your relatively recent assertion that, at some stage during your struggle with Mr Holmes, he stabbed you with a syringe containing some sort of illegal drug (probably ice). No syringe was found at the crime scene. You were treated after your arrest for injuries to your hands, yet you did not report to medical staff that you had been stabbed with a syringe, and no puncture wounds were noted on examination. At no stage during your many hours of interviews and discussions with the police did you make such an allegation. Nor did you mention it to your wife, or any of the friends who you called straight after the killings. None of the witness statements described you as appearing or sounding drug-affected. Your actions that night after you killed Mr Holmes were calm, purposeful and goal-directed. The assertion seems to have been made by you for the first time in the month before the trial. Given the state of the evidence, I agree with the prosecutor's description of the assertion as "a complete fabrication".

37 In any event, the assertion was made in the context of a fanciful suggestion that you may have a defence of automatism in respect of the murders of the Lockharts, not as in any way justifying your killing Mr Holmes.

38 After ferociously attacking Mr Holmes, you left him seriously injured, lying in the dirt. You then made the prompt decision to go and arm yourself with two shotguns, and go to the Lockhart farm to "finish" things off. You readily admitted that your intention at the time of walking to the Lockhart farm was to kill Mr Lockhart, the person towards whom you felt the greatest animosity. As soon as you got there, you immediately sought out Mr Lockhart, and shot him four times. You must have reloaded the 20 gauge shotgun once in order to do that.

39 After killing Mr Lockhart, you must have reloaded the 12 gauge shotgun twice, in order to shoot Mrs Lockhart three times with it. The forensic evidence suggests that you fired the first shot to her head, when you were outside, and she was standing inside the rear door of her house. At least one, if not both, of the two subsequent shots to her body must have been fired when you were inside the house.

40 Your counsel conceded that you formed an intention to kill Mrs Lockhart at the same time as you determined to kill her husband. The objective evidence supports that concession. You expressed animosity towards both of them, and a desire to be rid of them both. You went to the Lockhart farm, armed with two firearms and plenty of ammunition - far more than would have been needed to kill Mr Lockhart alone. Once there, you swiftly resorted to seeking out and shooting both of the Lockharts. Your repeated assertions to police that you only shot Mrs Lockhart because she came outside towards you, and started to scream or have a go at you, are simply inconsistent with the location of her body and the forensic evidence.

41 These are all very serious examples of the most serious crime known to our legal system and our community. You intentionally took the lives of three other human beings, fuelled by your anger and hatred for them. You sought out each of your unarmed victims at night, on their own properties (where they should have felt safe). You took dangerous weapons with you. You inflicted appalling injuries on all of them. The murders of the Lockharts are particularly serious: not only were they premeditated, you callously shot your elderly victims multiple times, from close or relatively close range, without warning, and without any conceivable provocation.

42 Your actions have had a profound effect on many people. Thirteen victim impact statements were provided to the court, by members of the Lockhart and Holmes families. Their statements speak eloquently of the many different ways in which peoples' lives have been shattered, by the violent, senseless deaths of three members of the same family, all within a short period. It is hard to summarise adequately what impact your cowardly and despicable conduct has had on so many lives.

43 Disbelief, anxiety, depression, nightmares and loss of sleep, are commonly-reported experiences. Peoples' ability to cope personally is often hampered by the fact that they are also trying to be strong and supportive for so many others.

44 It has been almost impossible for them to celebrate what should be happy family occasions - events like birthdays, weddings, anniversaries, Christmas, the birth of a new grandchild - when so many loved ones are gone. Music was a shared passion and pleasure, with Mary's singing and Greg's guitar playing being an integral part of so many family gatherings.

45 Mr Holmes and the Lockharts have not been there to help family members cope with a number of other recent deaths within their families.

46 These events, and their aftermath, have placed additional strains on some relationships, within and between different parts of the extended family.

47 Some family members have become socially withdrawn - partly because they no longer feel any joy in their lives, and partly because it can be difficult to avoid being drawn into discussion about a case which has attracted such a degree of publicity.

48 Indeed, many family members first learned of their loved ones' deaths on the internet or from the media, rather than from the police or their own family; that was particularly distressing for them. Many complained that the enormous media attention has caused them additional grief, because they have been robbed of their privacy, and their right to mourn in peace. For that reason, half of them asked that their victim impact statements not be read out in open court.

49 The injuries you inflicted were severe enough to mean that the identities of the Lockharts and Mr Holmes had to be established by DNA, not by visual identification. That has caused immeasurable pain, as loved ones have been left to imagine for themselves the nature and extent of the injuries. It has also deprived them of the opportunity to view their bodies, to say a final goodbye, before they were laid to rest.

50 I turn to consider your personal circumstances. You were born in New Zealand in December 1950. Your father was a violent alcoholic. After your parents split up, when you were 12, you and your eight siblings were put into various types of care; you went initially to a boys' home, before being fostered out. You completed education to Year 9 level, and have worked in various labouring jobs since then.

51 You moved to Australia in the mid-1960s. You married Janice in 1973, and had three children who are now adults.

52 At the time of the offending, you and your wife had owned a property in Tasmania for about seven years. You were planning on moving there in the near future, and had put your Wedderburn farm on the market only a few weeks before these terrible events. Indeed, you were due to go on a holiday to Tasmania the following week. If you had managed to control your anger for a few days more, you would now be contemplating spending the rest of your life living quietly in Tasmania, instead of in prison.

53 You are entitled to a discount on the sentences to be imposed upon you in recognition of your pleas and their utilitarian value. Your pleas have facilitated the course of justice. The community has been spared the time and cost of a trial of the charges against you. Witnesses, as well as the family and friends of the Lockharts and Mr Holmes, have been spared what would, undoubtedly, have been a very traumatic trial.

54 I have also had regard to the fact that after you returned home on the night in question, you contacted the police, awaited arrest, and made full admissions to them. Your co-operation in that regard has avoided the time and cost of a fuller investigation.

55 That said, these are by no means early or straightforward pleas. Your trial was listed to begin on Monday, 4 April 2016. When you were arraigned at the final directions hearing on Friday, 1 April, you pleaded not guilty to all of the charges (having previously indicated that you would only be contesting charge 1, relating to Mr Holmes). Later that day, your lawyers advised that you would be changing your pleas to charges 2 and 3; and when you were re-arraigned on the Monday morning, you did plead guilty to charges 2 and 3. Then, the following morning, as the jury panel was about to be brought into court, you also pleaded guilty to charge 1.

56 However, after the plea hearing had started, you sought to withdraw your guilty plea to charge 1. On 11 July 2016, I dismissed your application to withdraw that plea. In my reasons for refusing that application,[1] I have set out in more detail the long and somewhat torturous history of your pleading. Although they have ultimately been spared a trial, I have no doubt that the process by which your pleas have been entered has added to the distress of the family members and friends of your victims, many of whom have regularly attended court hearings here and in Bendigo.

57 You are not to be punished for having exercised your legal right to apply to set aside your plea to charge 1. However, given all the circumstances surrounding your pleas, the discount I have given you for pleading is less than it might otherwise have been.

58 Apart from any remorse which is taken to be implicit in your guilty pleas, you have not shown the slightest remorse for your appalling crimes. On the contrary, even now you continue to blame your victims for what occurred.

59 Although you had several heart attacks while visiting New Zealand in 2000, there is no evidence that you currently suffer from any medical problems that would be relevant to sentencing.

60 You have no history of psychiatric problems. However, your counsel suggested that your sentence should be reduced having regard to the evidence of a neuropsychologist, Associate Professor Warrick Brewer. In particular, your counsel suggested that principles (1), (3), (4) and (5) in the Court of Appeal decision in Verdins[2] apply in this case.

61 Associate Professor Brewer first assessed you in March 2016, in connection with your impending trial. He reassessed you in early June 2016, in connection with your application to change your plea to charge 1. In his report dated 26 March 2016, he described you as:

a man of average intelligence who suffers significant verbal new learning and higher level memory function on objective assessment. Moreover, he suffers significant reduction in his speed of processing. In addition, Mr Jamieson is demonstrating a constellation of subtle executive (higher level reasoning and organisation) inefficiencies.

62 Associate Professor Brewer attributed this to a gradual cognitive and behavioural decline over a period of at least 10 years, probably beginning around the time of your heart attacks. Notwithstanding those defects, he said you had a clear understanding of the wrongfulness of your actions, and an ability to think clearly and make calm, reasoned decisions and appropriate judgments.

63 His opinion was that the overall constellation of cognitive and behavioural vulnerabilities that was present at the time of the offending, reflected a "mild-moderate impact" on your ability to inhibit your impulses, and a "mild impact" on your ability to regulate your behaviour.

64 While his report is not entirely clear in this regard, it appears that Associate Professor Brewer's remarks were primarily directed to the impact of your cognitive deficits on the murder of Mr Holmes. He noted that your cognitive abilities at the time of the deaths of the Lockharts reflected "apparent recomposure following the assault on Mr Holmes"; I accept that assessment. Although impulsivity may have played a role in your confrontation with Mr Holmes, your subsequent actions (in walking home, collecting and loading two shotguns, walking over to the Lockhart property, and searching for your targets) were deliberate and considered, not impulsive.

65 In fact, Associate Professor Brewer's conclusion that you suffer from cognitive defects is not supported by a psychiatric report obtained from Dr Lester Walton by one of your previous solicitors. Dr Walton examined you on 30 March 2015. He could identify no mental state defences. He described you as "cognitively intact", and of normal intelligence. There was nothing in Dr Walton's report to support the application of any of Verdins principles (1), (3) or (4).

66 Even if Associate Professor Brewer's assessment of your compromised cognitive abilities is taken at its highest, it would only result in a very modest moderation of your sentence, given that he describes the impact of the impairment on your behaviour as only "mild" or "mild-moderate".

67 In assessing your moral culpability, your animosity towards Mr Lockhart and his family was undoubtedly the primary driver of your offending; it drove you to kill three people in violent circumstances. Notwithstanding any possible mild impairment of your impulse control or ability to regulate your behaviour, all three murders are grave offences, which call for condign punishment, and sentences that express the court's denunciation of your terrible crimes.

68 Nor would Associate Professor Brewer's opinion lead to any significant moderation of the need for general or specific deterrence. He does not suggest that your cognitive deficits are sufficiently serious as to make you an inappropriate vehicle for either form of deterrence.

69 That said, the need for specific deterrence is not great in this case, apart from Verdins considerations. Although you were fined for a few minor, alcohol-related offences when you were in your early twenties, you have been a law-abiding citizen since then.

70 As far as Verdins principle (5) is concerned, there is no evidence to establish that it applies in this case. Dr Walton noted that you were suffering from a clinically depressed mood, which he said was reactive to your offending and not explanatory of it. Associate Professor Brewer also noted that you were suffering from depression, but said you were refusing medication for it. It is not uncommon for prisoners to suffer from some degree of reactive depression, particularly as they await trial and contemplate the likelihood of a long period of imprisonment. Neither of your experts suggested that your depression is of such a nature or severity as to be likely to make prison more burdensome for you than for a prisoner in normal health.

71 For the murders of Mr and Mrs Lockhart, charges 2 and 3, you are to be sentenced as a serious violent offender;[3] I direct that that fact be entered in the records of the court. That means that in determining the length of the sentences to be passed on those charges, the court must regard the protection of the community as the principal purpose for which sentence is imposed.[4] However, the prosecution does not contend that, in order to achieve that purpose, the court should impose sentences longer than those which are proportionate to the gravity of the offences.[5] I agree with that proposition.

72 Your age is also a relevant consideration in sentencing you. For an older offender, each year of their sentence represents a significant proportion of their remaining life. However, age alone cannot justify what would otherwise be an unacceptably low sentence; it is not appropriate to impose an inadequate sentence, merely in order to give an aged offender a prospect of a useful life after release from prison.

73 For charge 1, the murder of Gregory Holmes, I sentence you to 25 years' imprisonment.

74 For charge 2, the murder of Peter Lockhart, I sentence you to life imprisonment.

75 For charge 3, the murder of Mary Lockhart, I sentence you to life imprisonment.

76 In setting a lower sentence for charge 1 than for charges 2 and 3, I am not meaning to diminish the value of Mr Holmes' life, or to suggest that his death is any less of a tragedy than the deaths of the Lockharts. But the fact that his murder was the first offence, combined with the respective circumstances of the three offences, should lead as a matter of general sentencing practice to the imposition of a lower sentence for charge 1 than for the two subsequent murders.

77 Section 6E of the Sentencing Act provides that the sentences to be imposed on you as a serious offender in respect of charges 2 and 3 must, unless otherwise directed by the court, be served cumulatively on the sentence to be imposed for charge 1. However, it is otiose to order accumulation on a life sentence; accordingly, I order that the three sentences are to be served concurrently.

78 There is a dispute as to whether or not I should set a non-parole period. Section 11(1)(a) of the Sentencing Act provides that if a court imposes a life sentence, the court must fix a non-parole period "unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate." It is not suggested that your past history would make it inappropriate to fix a non-parole period. However, the prosecution argues that the nature of these offences would make it inappropriate to do so.

79 The authorities make it clear that, in most cases where a person pleads guilty to murder, a non-parole period will be set. However, that is not an inflexible rule, and there have been a handful of cases in which no such period was set.

80 The primary purpose of setting a non-parole period is to allow for the possibility of rehabilitation at a time in the future, when the offender has served what is regarded as the appropriate minimum period. The prosecution says that it would be an academic or pointless exercise to set a non-parole period here, given your age and the sort of non-parole period that would have to be set in order to reflect the seriousness of your offending. I accept that, given your age, it is highly likely that you will in fact die in custody, as a consequence of your own appalling deeds. But that is not a reason for me to refuse to set a non-parole period, if it is otherwise appropriate to do so.

81 I agree with the sentiments expressed by King J in sentencing Carl Williams for three gangland execution-style murders, when she set a non-parole period notwithstanding the lack of any genuine remorse by Mr Williams. Her Honour said:

It is pragmatic and utilitarian to give you a discount for entering those pleas ... That behaviour must be encouraged. It must be made clear to all charged with offences, of whatever type, that if they do enter a plea of guilty to the offences that they will receive a real and significant discount.[6]

82 Notwithstanding the seriousness of your offending, and the lateness of and circumstances surrounding your pleas, I have determined that it is appropriate to set a non-parole period, for the public policy reasons articulated by King J.

83 I fix a period of 30 years before you become eligible for parole. But for your age, I would have fixed a longer non-parole period.

84 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your pleas of guilty, I would have sentenced you to life imprisonment without parole.

85 Further, I declare that the period to be reckoned as already served under this sentence is 640 days, inclusive of 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.

[1] DPP v Jamieson (Ruling) [2016] VSC 406.

[2] [2007] VSCA 102; (2007) 16 VR 269.

[3] Pursuant to Part 2A of the Sentencing Act 1991.

[4] Sentencing Act s 6D(a).

[5] Sentencing Act s 6D(b).

[6] R v Williams [2007] VSC 131, [129].