DPP v Jones [2018] VSC 329

2 At the time, you and Mr Lowry had known each other for several months. You were both living in boarding houses in St Kilda.

3 In the early hours of 1 August, you went to the Balaclava Hotel. You entered the hotel around 2.20 am, then played the pokies and socialised with a woman for about an hour. CCTV footage shows you acting in an apparently normal manner throughout your time at the hotel. You left there at 3.16 am.

4 You then made your way to the Regal boarding house, where Mr Lowry was living. CCTV footage shows you jumping over the locked front gate to the Regal at 4.46 am. You were wearing the same clothes that you had been wearing at the hotel, and carrying the same backpack.

5 Keith Baker, who lived at the Regal and was an acquaintance of yours, was in the foyer at the time. He had been wandering around the boarding house, looking for cigarettes and food. Mr Baker recognised you, and let you in through the front door of the building. You and Mr Baker both went upstairs. CCTV footage shows you entering Mr Lowry's room at 4.47 am. Mr Baker initially went to his own room.

6 Shortly after you entered Mr Lowry's room, Mr Baker came to the room and asked for a cigarette. Mr Lowry told him that he just needed to speak to you. You told Mr Baker that you would bring him a cigarette shortly. Mr Baker did not observe any sign of animosity between you and Mr Lowry. Mr Baker left you and Mr Lowry alone in Mr Lowry's room.

7 At some stage in the next 12 minutes, you assaulted Mr Lowry an unknown number of times. During the course of the attack, you picked up one of the many knives that Mr Lowry had in his room, and stabbed his upper left thigh. Two stab wounds were inflicted through the same entry point on his thigh, although it is not known in which order you inflicted them. One of the stab wounds was 12 cms deep, and lacerated his thigh muscles. Although the other one only penetrated 7 cms into his thigh, it cut through his femoral artery, ultimately causing Mr Lowry to bleed to death.

8 Mr Baker, who was back in his own room, heard a low groaning sound and someone repeatedly calling his name. He rang Mr Lowry's phone, and you answered "Stef's fucked and you're next."

9 You left the Regal at 5.07 am, taking the knife with you. Five minutes later, you threw the knife over the fence of a nearby property. The knife, which was later recovered by police, had a 20 cm long blade, and bore samples of the DNA of both you and Mr Lowry. You later fled the St Kilda area in a taxi.

10 Shortly after you left the Regal, Mr Baker went to Mr Lowry's room and knocked on the door. After checking that Mr Baker was alone, Mr Lowry let him into the room. Mr Lowry was sitting next to the door, covered in blood; there was also a considerable amount of blood around the room. Asked what had happened, Mr Lowry said "Earl got in and got me."

11 Mr Baker called 000 at 5.13 am. Police and paramedics arrived shortly thereafter, but were unable to resuscitate Mr Lowry.

12 The prosecution case was that you stabbed Mr Lowry with the intent to cause him really serious injury, not to kill him. Although you and Mr Lowry had some sort of ongoing dispute about property, there is no suggestion that the stabbing was premeditated. You seemed to be in good spirits earlier that night, and when you first entered Mr Lowry's room.

13 Exactly what happened during the relatively brief period that you and Mr Lowry were alone in the room is unknown. It is clear from the almost two dozen bruises, abrasions and lacerations on different parts of Mr Lowry's body that you must have assaulted him multiple times. But the forensic pathologist who performed the autopsy accepted that some of the injuries (particularly the ones to Mr Lowry's head) may have been caused by Mr Lowry falling down, or otherwise knocking his body against furniture and items in his very cluttered room. The fact that none of the neighbours heard any commotion tends to suggest that the altercation was of relatively short duration.

14 Drugs may have played some role in what occurred in the room. The autopsy revealed that Mr Lowry had consumed morphine, methylamphetamine ("ice") and methadone. Although there was no specific evidence of your usage on 31 July or 1 August 2016, it is likely (given your heavy daily usage of ice and heroin at that time) that you were substance-affected to some extent when you stabbed Mr Lowry. Although drug use is not a mitigating feature of your offending, it may help explain why an argument broke out between the two of you, or why your judgment and impulse control may have been so poor at the time.

15 What was said or done in the room before you started to assault Mr Lowry, is unknown to the court. You have given no account of what happened in the room; rather, you denied to police that you were at the Regal at the relevant time, or had anything to do with Mr Lowry's death. That said, there is no evidence to suggest you were acting in self-defence, or that Mr Lowry physically attacked you in any way.

16 You left Mr Lowry, seriously injured, bleeding heavily from the severed artery, and made no attempt to stop the bleeding or call for help; those actions were callous. The fact that you attempted to dispose of incriminating evidence, by throwing away the knife as you left the crime scene, is a further aggravating feature of your offending.

17 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others. Stephen Lowry was 35 years old when he died.

18 Mr Lowry's three sisters and one brother provided victim impact statements to the court. They are all suffering greatly from his death. They speak of feelings of grief, anger, anxiety, depression, a loss of trust in others, and a loss of enjoyment in work or socialising. Some of them feel a sense of pain or helplessness, at having been unable to help or protect Mr Lowry. The thought of him bleeding to death, alone, in his room, has been particularly difficult for them to deal with.

19 There is nothing this court can say or do that will bring back Mr Lowry, or heal his family's grief and pain. The sentence I am about to impose is not a reflection of the value of Mr Lowry's life; rather, it reflects the large number of factors which judges are required to take into account, only one of which is the victim impact statements.

21 You were born in January 1987 in Mildura, the youngest of three boys in an Aboriginal family. Your parents separated when you were very young. Initially, you moved to Melbourne with your father and your brother, Russell.

22 When you were about 6 or 7 years old, your father moved with you and Russell to the Northern Territory. You spent a couple of years at primary school in Katherine, your father's home town. Then you moved to Beswick, a small indigenous community, located about 120 km from Katherine. Unfortunately, the Beswick community struggles with issues of poverty, violence, and alcohol and other substance abuse. Although your father was working, he was frequently away from home, and had problems with alcohol abuse.

23 You attended the primary school in Beswick until year 7. You did not attend high school, as that would have required a four hour round trip each day to and from Katherine. Left alone and unsupervised each day, without the structure of school or any meaningful activity, you soon began abusing substances and getting in trouble with the law. You started using cannabis at 13, and sniffing petrol at 14.

24 Aged 13, you broke into the Beswick store, to steal some clothing. You were sent to the Don Dale Youth Detention Centre in Darwin. A couple of years later, you received a similar sentence for breaking into the same store.

25 By the age of 15, you had starting looking for your mother, who had moved to Melbourne. With the assistance of your father and some social workers, your mother was located and came to Darwin to visit you in custody. Upon your release, you moved to live with your mother in Melbourne.

26 You and your new stepfather did not get along; so, after living with your mother's new family for about six months, you were sent to Shepparton to live with a maternal uncle. Your uncle lived with his wife and their seven children, in a very overcrowded and chaotic household, in which unemployment and substance abuse were widespread.

27 During the period of about 3 ½ years in which you lived in Shepparton, you frequently ran away from home, and from refuges where you had been placed, and went to Melbourne, where you would live on the streets. You were enrolled at Worawa Aboriginal College, a secondary boarding college for indigenous students, but only lasted there for a few months. Throughout this period, you were desperate to reconnect with your mother, but felt that she had rejected you and was more interested in her new family.

28 You started using heroin when you were 16, and started binge drinking when you were 18. You were sentenced to two periods of youth detention in Victoria, primarily for theft or robbery offences committed whilst you were living in Shepparton.

29 You moved back to the Katherine area for about 7 years. You worked for some time as a labourer and on pastoral stations. You would generally manage to control your drinking during the week, but would come into town and get involved in drunken fights on weekends. You served a number of separate sentences of imprisonment in adult prison in the NT. Most of those sentences were imposed for relatively minor driving or property offences. However, in December 2010, you were sentenced to 4 years' imprisonment for assault with intent to steal and cause harm. On that occasion, you became involved with two others in robbing and seriously assaulting a stranger in the early hours of the morning.

30 After your final release from a Darwin prison, you moved to Melbourne for a few months. There, you met a woman who was from Queensland; you moved to Townsville to be with her.

31 After that relationship ended, you moved to NSW, where you met Ashleigh, the mother of your two young sons. Your violence under the influence of alcohol led to your being sentenced in NSW, on three separate occasions in 2014 and 2015, for domestic violence offences involving Ashleigh.

32 By early 2016, having been released from prison, and having broken up with Ashleigh, you returned to Melbourne. You started using ice and heroin daily. At the time of this offence, you were unemployed, and mostly living in your brother's room at the Gatwick Hotel.

33 In your early childhood, you were apparently diagnosed with attention deficit disorder. During your teenage years, you were assessed as having an IQ of 82, which places you in or very close to the borderline intellectual deficiency range. However, you do not have a history of significant mental health issues.

34 Unfortunately, you spent your formative years growing up in environments in which alcohol abuse, violence and social disadvantage featured prominently. Courts have recognised that such experiences may compromise a person's capacity to mature, and may leave a mark which can last throughout life.[1]

35 You have more than 30 convictions. Alcohol and drugs have undoubtedly played a major role in much of your past offending. Numerous attempts have been made over the years to engage you in treatment and counselling, without success. That is perhaps not surprising, given the circumstances in which you were then living.

36 Although none of your past offending has been anywhere near as serious as the current offence, it is clear from some of your convictions that you are prone to engage in spontaneous outbursts of violence, particularly when substance-affected. Your prospects of future rehabilitation are inextricably linked to your prospects of addressing your substance abuse issues. There remains a clear need for specific deterrence in this case (as well as general deterrence and just punishment).

37 You were arrested in relation to this matter on 5 August 2016, and have been in custody since then. For much of your time on remand, you have been held in protection units, in order to protect you from other prisoners who have threatened you. That situation may well continue after you are sentenced. However, a large proportion of the Victorian prison population is held in protection at any given time, so it is necessary to consider the particular conditions in which you have been held. Although you are not able to associate with certain prisoners, it is not suggested that your protection status has led to any serious restrictions on your employment, study or leisure options, or the amount of time spent out of your cell.

38 Although you have shown no remorse for killing Mr Lowry, the reasons for that are not straightforward. You still deny having been at the Regal at the relevant time and having killed Mr Lowry, notwithstanding a number of different pieces of evidence which clearly place you there. You believe that the lawyers and court officials involved in this case have colluded with the police in allowing them to change the time on the CCTV footage. Dr Gunvant Patel, a forensic psychiatrist who assessed you for the purposes of sentencing, thinks that you believe yourself to be innocent, and have constructed an explanation that the police and legal system are operating in concert to prove you guilty. Dr Patel says that around 30% of homicide offenders cannot recall the relevant act, or have a psychological inability to retain the memory or process the distress caused by having taken somebody's life. In those circumstances, I do not regard your lack of remorse as being as significant as it might otherwise be.

39 Nevertheless, your failure or inability to accept responsibility for killing Mr Lowry is relevant in assessing your prospects of rehabilitation.

40 Whilst in custody, you have had weekly phone contact with your sons, who are now aged 3 and 4. Apart from that, you are largely isolated from your family, and appear to have no supports within the community.

41 Overall, I am guarded about your prospects of rehabilitation, particularly having regard to your long history of substance abuse and offending, your lack of education or steady employment history, your intellectual deficits, and your lack of community supports.

42 That said, at 31 years old you are still relatively young. Furthermore, by reason of your very unfortunate upbringing, you have not grown up with positive role models or opportunities to develop appropriate life skills. I am setting a non-parole period which I hope will allow you adequate opportunity to develop such skills in the community, under the supervision of the Adult Parole Board. It is in the community's interests, as well as yours, that you be given an opportunity to acquire such skills, in order to reduce the likelihood of further offending when you complete this sentence. Whether or not you will be eligible for parole will no doubt depend in part on your behaviour in custody.

43 For the murder of Stephen Lowry, I sentence you to imprisonment of 20 years.

44 I fix a period of 15 years as the period you must serve before becoming eligible for parole.

45 Further, I declare that the period to be reckoned as already served under this sentence is 634 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.