DPP v Matthews & Burford [2016] VSC 783

1 Mark Matthews and Anthony Burford, you have each pleaded guilty to assist offender for the purpose of impeding the apprehension, prosecution, conviction or punishment of Nathan Missen for the manslaughter of Mark Missen between 29 January 2016 and 2 February 2016.

2 Your offences occurred when the body of Mark Missen was removed from a house in Mooroopna and disposed of in a mine shaft at Rushworth Victoria.

3 The offence of assist offender where the principal offence is manslaughter carries a maximum of five years' imprisonment.[1]

4 Mark Matthews, you were also charged and have pleaded guilty to the summary offence of failing to answer bail on 15 November 2016 at this Court. The maximum sentence for this offence is two years' imprisonment.

8 The deceased, Mark Missen, was the father of the principal offender, Nathan Missen.

9 The deceased was residing at premises at 8 Larsen Street, Mooroopna, at the time of his death. He was also encumbered by work-related injuries and ill health. His hobby was car restoration and he was working on restoring a Nissan Skyline car.

10 Nathan Missen was 26 years of age, a drug user, and had a history of violence towards his father and his girlfriend, Ebonee Rohde, with whom he had been involved since July 2015.

11 The deceased had moved houses several times in the years before his death. From time to time, Nathan Missen would move into his father's place of residence. Prior to the killing of the deceased, Nathan Missen and Ms Rohde had moved into the deceased's house at Larsen Street.

12 Mr Matthews, you met Nathan Missen through Ms Rohde, whom you had known for many years. You had known Nathan Missen for about 12 months at the time of the offence.

13 Mr Burford, you were friends with Mr Matthews, but had only met Nathan Missen once or twice before this offending.

14 On 29 January 2016, Nathan Missen assaulted Ms Rohde, causing injuries to her face. Mark Missen remonstrated with his son over his conduct towards Ms Rohde. This led to Nathan Missen physically attacking his father and ultimately causing his death.

15 A pathologist's report described substantial head and neck injuries, including recent skull fractures particularly of the front, mandible and facial bones, and a fractured hyoid bone leading to a finding that the recent bone injuries to the head had occurred to more than one plane and would have involved the infliction of several applications of blunt trauma.

16 Ebonee Rohde was interviewed by police and made a number of statements in which she elaborated on how Nathan Missen had perpetrated the assault on his father which caused his father's death. She said that she had heard the commencement of the attack and had witnessed the final stage of the attack when Nathan Missen had dragged Mark Missen into the bedroom and dropped him on the floor. Nathan Missen had wrapped a pillow case and towel around the head of the deceased and put a belt around his neck and pulled on it.

17 She said that Nathan had obtained her help in wrapping the deceased's body in a tarpaulin and using some grey tape as binding. He then placed the deceased's body in a wardrobe in the spare room of the house.

18 Ms Rohde also described the steps taken by Nathan Missen to dispose of the body, which included enlisting the help of both of you. He had sought the assistance of another person to dispose of the body but that person had had the good sense to refuse.

19 In her fourth police statement, Ms Rohde said that on 2 February 2016 she and Nathan Missen had gone to Echuca and visited your premises, Mr Matthews, and had asked for help from both of you to get rid of the body. It so happened that you, Mr Burford, were visiting Mr Matthews that day. The conversation took place in a shed on the rural property.

20 Ms Rohde asserted to police that Nathan had misled you both into thinking that his father had 'gone too far', implying that his father was responsible for assaulting Ms Rohde, leading to Nathan getting into a fight with him and killing him.

21 On your account, Mr Matthews, it was Ms Rohde who had first asked for a hand in getting rid of the body. After discussing a few different methods, it was agreed that the body would be collected and taken to Rushworth to be dropped down a mine shaft.

22 The pair of you accompanied Nathan Missen outside and went with him in a blue Ford car which was being driven by Nathan Missen, but which in fact belonged to the deceased.

23 Nathan Missen drove both of you back to the Larsen Street house, where you donned gloves and used nylon rope to haul the body of the deceased from the wardrobe into the boot of the blue Ford car.

24 The car was driven through Rushworth to an area near the Balaclava mine about seven kilometres from Rushworth. A suitable mine was selected and the body was carted from the car with each of you participating to some extent.

25 Mr Burford, you climbed through a hole in the mesh covering the opening of the mine shaft and helped in the passing of the body through the mesh, whereupon you and Nathan Missen dropped the body down the shaft.

26 The car was driven back to Echuca where Ms Rohde was waiting. You, Mr Matthews, had been promised the Nissan Skyline car in advance of providing assistance, so the pair of you followed Nathan Missen and Ebonee Rohde back to Larsen Street, and collected the Nissan Skyline car. You, Mr Matthews, later sold that car to another person for $4,000, but fortunately the car has been recovered by police due to information you gave them as to the details of the purchaser.

27 On 12 March 2016, Mark Missen's body was discovered by members of the public who were exploring the area around the Balaclava mine, and police were promptly notified. The body was removed from the mine by police, along with the ropes, tarpaulin and fabric wrappings. The body was partly decomposed at that time and identity was not immediately established.

28 The autopsy took place on 14 March 2016 and a public appeal for information was launched with information about the post-mortem findings released along with pictures of clothing and fabric.

29 On 22 March 2016, police were given information as to the probable identity of the deceased. Nathan Missen and Ebonee Rohde were arrested the following day.

30 Police attended your premises, Mr Matthews, on 30 March 2016 and found some of the deceased's property, including the number plates that had been on the Nissan Skyline car. You were arrested and participated in a videotaped re-enactment of your involvement in disposal of the body.

31 You said that when you were approached by Nathan Missen, you felt concerned for your own safety and that you had to make a snap decision whether to turn him down and risk being next or whether to help out and hope for the best.

32 In your re-enactment, you described in detail what took place and the actions of Nathan Missen and Ebonee Rohde. You also admitted accepting the Nissan Skyline car as payment for your role in assisting Nathan Missen.

33 You participated in a further interview at Rushworth police station and signed and acknowledged a detailed written statement at the request of officers from the Homicide Squad. You were charged and bailed to the Shepparton Magistrates' Court.

34 On 31 March 2016, you, Mr Burford, attended an appointment with Homicide Squad police at Spencer Street, Melbourne. You participated in a taped record of interview about your involvement in assisting Nathan Missen. You readily admitted your involvement and said that you had never met the deceased and had only met Nathan Missen once before. Like Mr Matthews, you said that you were misled into thinking that the deceased was killed by Nathan Missen in the process of responding to assaults on Ebonee Rohde by the deceased. You said that you understood that Nathan Missen had struck the deceased but you had not wanted to know any other details from him.

35 You said that when you were asked to assist with disposal of the body, you agreed to assist Nathan Missen and Mr Matthews, fearing what might happen if you refused because you knew too much by then.

36 You described in detail the steps taken on the way to the Rushworth mines and at the mines.

37 You denied wanting any financial or other reward for your actions. You said that you just wanted to get it over and done with and, although you were offered the blue Ford car, you declined it.

38 When Ebonee Rohde later split up with Nathan Missen and moved out of the Larsen Street premises, she gave you some small household items of little value, amongst which were some items that had belonged to the deceased. I do not think that your decision to assist Nathan Missen was influenced by any material incentive.

39 After your police interview, you accompanied police to the crime scene at Rushworth and took part in a video re-enactment of the disposal of the body. That was followed by you signing and acknowledging a lengthy typed statement in response to a police request.

40 You therefore gave fulsome co-operation to police once your involvement was uncovered.

41 Regarding each of you, although Nathan Missen was subsequently charged with murder, your plea is based on holding a state of mind that the crime Nathan Missen had committed amounted to manslaughter.

42 Mr Matthews, you pleaded guilty to assist offender after two committal mentions had taken place. You entered your plea on 8 November 2016 at the Shepparton Magistrates' Court and were bailed to appear at this Court on 15 November 2016. You failed to appear and a warrant was issued. You were arrested and placed in custody and remained in prison until the date that I heard your plea.

43 You were subsequently charged with failing to answer bail. Your explanation for failing to appear was that you were concerned about what would happen at court and, although you had already entered your plea at the Magistrates' Court, at that time you could not face going to the Supreme Court. You did not try to flee and were arrested at home several days later.

44 Your plea was an early plea but not as prompt as that of your co-offender, Mr Burford.

45 Mr Burford, you pleaded guilty to a variant of the current charge at the first committal mention and were arraigned and pleaded guilty to the current charge on 3 October 2016. You plea was entered at the first available opportunity.

46 Each of you has expressed a willingness to testify for the Crown in the prosecution of the principal offender, Nathan Missen, as well as the prosecution of Ebonee Rohde, who is charged with assist offender. Each of you has given a sworn undertaking to do so.

47 Each of you relies on your plea of guilty, past co-operation and offer to assist the Crown as substantial mitigation of the sentence to be imposed.

(b) Lawrence Tyndall, brother-in-law of the deceased;

(d) Diane Berends, sister of the deceased, whose statement was read aloud in court by the prosecutor; and

(e) Kerrie Mitchell, former wife of the deceased.

49 The victim impact statements deal with matters going beyond your specific roles in respect of the death of Mark Missen, but you must accept that your actions delayed the recovery of his body by his loved ones and likely contributed to their grief.

51 Mr Matthews, you are one of 15 children on your father's side and 7 children on your mother's side but custody of you was awarded to your maternal grandmother. You grew up with her and have always lived in and around the Kyabram and Shepparton areas.

52 You did not complete Year 7 at school and have generally engaged in casual labouring work, as well as trading scrap metal and breaking down disused cars. You were engaged in that work at the rural property where you lived with your partner and family when approached by Nathan Missen. At present, you rely on a combination of TAC and Centrelink payments.

53 Your de facto partner normally resides with you on a rented acreage in the Echuca region. You have a 16-year-old daughter but are not in contact with her. You also have an adolescent daughter and son from a further lengthy relationship. The mother of those two children was killed in a road accident. Therefore your second daughter resides with her maternal grandmother whereas the son from that union has been residing with you and your partner in Echuca. Your partner also has an adolescent daughter residing in the home. You previously fathered a daughter, now aged three, as a result of a short term relationship and you have some degree of ongoing contact with that child. I should add that your residential circumstances are currently in flux.

54 You prior convictions are mainly related to driving offences, although you have a conviction for contravention of an intervention order in 2015 when you telephoned a former partner in breach of the order. You were fined for that offence. You were also convicted of burglary, theft and unlawful possession of ammunition when you broke into a vacant picker's hut in 2005.

55 You are currently subject to a community correction order ('CCO') that was imposed on 10 August 2016 at the Echuca Magistrates' Court for a consolidation of charges occurring on different dates. The CCO was an aggregate sentence and related to a number of driving offences committed in June, October and November 2015, including, inter alia, three charges of driving whilst suspended and one charge failing an oral fluid test. Subsequent to committing the index offence, you committed the further offences of possessing methamphetamine and committing an indictable offence whilst on bail on 26 February 2016. After being charged with this index offence, you committed the offence of refusing to provide a sample of oral fluid under the road safety legislation on 10 April 2016.

56 Your counsel informed me that you have used methamphetamine sporadically in recent years, both before and after the index offence. The pre-sentence report that I have received from the Department of Justice and Regulation states that the CCO imposed in August 2016 included a drug treatment and rehabilitation condition. I will say more about your pre-sentence report later.

57 Considering your prior convictions, subsequent offending, and the serious nature of this offence, it is very clear that you have reached a stage of life where you need to buckle down and take responsibility for your actions as a mature adult member of the community. You have let your family down and contributed to the anguish suffered by those who loved and cared for Mark Missen.

58 In failing to stand up against Nathan Missen, you may well have led your younger friend and co-accused, Mr Burford, down the path of wrongdoing. Your offending was the result of weakness and fear but your decision to receive a financial reward for your actions was disgraceful.

59 Mr Kelly, who appeared on your behalf, submitted that a CCO was open in all of the circumstances of your case, particularly in light of your co-operation with police, you plea of guilty and willingness to testify at committal and trial against Mark Missen and Ebonee Rohde.

60 He also pointed to other features of mitigation, including the spontaneous nature of your offending which was precipitated by the principal offender visiting your premises unexpectedly and causing you to feel concerned for your own safety and that of your family if you did not comply with his request. You had reiterated your anxieties about the predicament you were placed in at numerous points of the video re-enactment and in the later taped interview. You told police during the re-enactment that you believed that the car you were given as recompense belonged to Nathan Missen. Although you nominally sold the car for $4,000, you had only received $1,000 prior to your arrest at which stage you revealed the whereabouts of the car to police.

61 Mr Kelly also submitted that during the re-enactment, you showed your remorse for your actions when you indicated that you were glad to get the matter off your chest, and were sorry for what had happened to the deceased.

62 Mr Kelly asserted that your assistance will be valuable to the Crown, since your version of events has remained consistent and fits with the evidence gathered in the investigation.

63 You have spent 16 days in custody for this matter. You were placed for some of that time in a unit close to Nathan Missen, and were subjected to verbal abuse because of the view held by other prisoners that you had informed. You were then relocated for security reasons to a management unit where you spent very little time outside of your cell.

64 Mr Burford, you are still relatively young and were only 24 at the time of committing this offence of assist offender.

65 Although you have no prior convictions for criminal matters, you have since been convicted of a number of driving offences that arose from charges laid after you came to the notice of police in respect of the current charge. You are currently undergoing a 12-month CCO imposed on 22 August this year on a single charge of unlicensed driving. You are required to undergo 100 hours of unpaid community work as part of that order and have not commenced that aspect as yet. You have never held a driving licence and your driving history is poor. As with Mr Matthews, you have abused drugs in recent years.

66 You were born in Kyabram but your father died before you were born. Your mother and stepfather brought you up and you have been supported at court by family members and friends.

67 You were educated to Year 9 and left school to undertake carpentry for five months but then returned to school to complete Year 9 and Year 10. You have a number of skills and have certifications in welding and small scale engineering and have maintained reasonably regular work since leaving school.

68 You became a father at 18 and have two young children, although you are no longer with the mother of those children. You do, however, maintain regular contact with them.

69 Your current de facto partner has four children of her own, and together with her you have a six-month-old son. You have lived together for one year. You are currently unemployed, awaiting the outcome of this proceeding.

70 The community corrections officer appointed to you has informed your counsel that you have attended the office in crisis on a number of occasions since being placed on the CCO such that she has expressed concern for your welfare.

71 Mr Hutton submitted on your behalf that there are a number of important mitigating factors, some of which mirror the case of Mr Matthews. He emphasised the lack of a premeditation and spontaneity of the offending, and the concern you held for your own safety and the safety of your family if you declined to assist. Further, he relied on the fact that you did not know the deceased and barely knew Nathan Missen.

72 He underlined the fact that you did not seek or receive any significant reward for your actions from Nathan Missen.

73 He noted that you had co-operated with police extensively and made full admissions, having gone immediately to the Homicide Squad headquarters when you learnt that they wished to speak to you.

74 You expressed remorse during your interviews, telling police you wished you had not been present and had not participated. Like Mr Matthews, the evidence you can give is potentially important to the crown because you can confirm seeing a belt around the neck of the deceased.

75 Mr Hutton argued that your plea of guilty at the earliest possible stage was of value not only for its utilitarian benefit but also as an indication of remorse.

76 He relied on your undertaking to give evidence as proof of you having good prospects for rehabilitation and as deserving significant weight in the sentencing disposition. It is clear that you will endure personal sacrifice in the course of giving evidence at committal and trial and in the lead up to those legal proceedings.

77 He submitted that you are not likely to re-offend in a manner similar to this offence.

78 It was also submitted on your behalf, Mr Burford, that in the absence of significant aggravating circumstances and in light of your early guilty plea along with your offer of future assistance, the Court should impose a community-based sentence. I accept that there are no significant circumstances of aggravation in your offending, Mr Burford.

79 I do, however, regard the acceptance by you, Mr Matthews, of the Nissan Skyline car as a circumstance of aggravation in your case.

80 Counsel for both of you relied on the principles stated Boulton v The Queen[2] to support their argument that a CCO should be considered for each of you. Mr Kelly highlighted that the Court of Appeal in Boulton considered 'that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment',[3] and submitted that because the maximum sentence for this offence is five year's imprisonment, any length of imprisonment would in effect be a 'medium term'.

81 The passage from Boulton was quoted in counsel's written submissions and it is useful to set it out here in full:

It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[4]

82 Mr Hutton relied on s 36(2) of the Sentencing Act 1991, which provides that a CCO may be an appropriate sentence where the court may have imposed a suspended sentence before its ability to do was abolished. He then referred to several sentencing cases for the offence of assist offender,[5] and he cited Whelan J in R v Talanoa,[6] where his Honour said that 'the cases reveal that bonds and suspended sentences are not unusual in relation to assisting offences, even in homicide cases'.[7] In that way, Mr Hutton submitted that it is not unusual for the offence of assist offender to be dealt with by way of a sentence that does not involve an immediate term of imprisonment, particularly when the principal offence in this case is manslaughter.[8] I accept that this is so, whilst bearing in mind that each case must ultimately be decided on its own facts.

83 Mr Hutton's above submissions were adopted by Mr Kelly on your behalf, Mr Matthews.

84 Mr Tinney SC, on behalf of the Crown, referred to the serious features of the offence of assist offender. He referred to Landmark v The Queen,[9] where Weinberg JA said:

The applicant was involved in an attempt to cover up a most serious offence, one that resulted in a person's death. His conduct was designed to enable the perpetrator of that offence to avoid detection, and escape any punishment. The particular assistance he provided in that regard, contrary to the suggestion put forward on his behalf, was far from immaterial.

Conduct of this kind undermines and frustrates the proper administration of justice. As importantly, it has the potential to endanger members of the public by allowing violent offenders to remain on the streets. It must be discouraged and denounced in the strongest of terms.[10]

85 Mr Tinney SC also acknowledged, though, the relatively low maximum penalty set by Parliament where the principal offence is one of manslaughter. He also accepted that there is a public policy basis for encouraging offenders to assist the Crown in the prosecution of other offenders.

86 He submitted that general deterrence, just punishment and denunciation are important considerations for both of you but that specific deterrence is also a factor for you, Mr Matthews. At the plea hearing, he conceded that a CCO is not outside the range of sentences available for each of you.[11] However, after your pre-sentence report was obtained, Mr Matthews, I sought further submissions and the Crown submitted that a CCO was not an appropriate disposition for you in light of your history of failing to comply with the conditions of community-based orders.

87 Having reflected on the way in which each of you were led into this offending, and in particular the very significant benefit that should be accorded to both of you for your offers of future assistance together with your guilty pleas, I must also consider any distinction in the roles of each of you and in factors personal to each of you.

88 Although the offence of assist offender is serious, in respect of you, Mr Burford, I consider that the objective features of your offending are in the low to mid-range. This finding, combined with your absence of prior convictions, your plea of guilty, extensive co-operation and undertaking to assist the Crown, your personal factors and younger age, is sufficient to enable your sentence to be mitigated such that a CCO is appropriate in your case. I here note that I have received a pre-sentence report from the Department of Justice and Regulation prepared pursuant to s 8A of the Sentencing Act 1991 that has assessed you as being suitable for a CCO.

89 Mr Burford, I have taken into account the submissions made on your behalf and those of the Crown, as well as the purposes of sentencing set out in the Sentencing Act 1991, including the principle of parsimony.

90 Anthony Burford, on the charge of assist offender, you are sentenced to a CCO for a period of 16 months. Subject to you consenting to it, the CCO will contain the mandatory conditions set out in s 45 of the Sentencing Act 1991, as well as the following additional conditions:

(a) 100 hours of unpaid community work pursuant to s 48C. Pursuant to s 41(2), I direct that these hours are cumulative upon any hours of unpaid community work required to be performed under any other CCO currently imposed upon you;

(b) Assessment and treatment (including testing) for drug abuse or dependency pursuant to s 48D(3)(a). Pursuant to s 48CA, all of the hours satisfactorily undertaken under this condition are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition; and

(c) Supervision as directed by the Secretary pursuant to s 48E. You are required to report to Shepparton Community Correctional Services at 307-331 Wyndham Street, Shepparton, within two clear working days of this order being imposed.

91 Pursuant to s 6AAA, I declare that if not for your plea of guilty I would have imposed a sentence of 16 months' imprisonment with a minimum non-parole period of 6 months.

92 Mr Matthews, your offending is more serious than that of Mr Burford and that will be reflected in the sentence imposed. You were a friend of Nathan Missen and it was because of your friendship that Nathan and Ebonee came to your address and made their approach for assistance. You also knew the deceased, Mark Missen, and I infer from your police statement that you knew of the Nissan Skyline car that he had been restoring. You accepted Nathan's offer of that car in return for your assistance even before leaving with them.

93 In addition, there are factors personal to you which distinguish your position from that of Mr Burford. You are 10 years older than him, and your prior criminal history reveals that you have been imprisoned in the past and that you have been offered community-based dispositions in the past for your offending. Your compliance with your current CCO has been lacklustre. You have failed to follow up on referrals for drug treatment in accordance with your CCO. You further failed to attend on time as required for the assessment for the purpose of your pre-sentence report in this proceeding. Your failure to answer bail on 15 November 2016 at this Court does not engender confidence that you will manage to comply with a further CCO.

94 The pre-sentence report prepared by the Department of Justice and Regulation assessed you as being unsuitable for a CCO.[12] It also stated that you have been remanded on a separate matter since your plea hearing, but you are entitled to the presumption of innocence in relation to that and any outstanding matters.

95 By way of contrast, Mr Burford's prospects of rehabilitation appear somewhat more favourable. He has strong family support, a reasonably strong work history and he was assessed as suitable for a CCO.

96 Mr Matthews, I have taken into account the matters put on your behalf and the Crown's submissions and the purposes of sentencing set out in the Sentencing Act 1991, including the principle of parsimony.

97 For the reasons discussed, I have concluded that a CCO is not appropriate in your case. I assess the objective features of your offending to be in the mid-range of seriousness.

98 I have taken into account that imprisonment will be more burdensome for you because of your offer of assistance and the likelihood that you will serve your sentence in the protection stream.

99 Mark Matthews, on the charge of assist offender, I sentence you to 12 months' imprisonment with a minimum non-parole period of 3 and a half months.

100 I declare that, excluding today, you have served 16 days of pre-sentence detention.

101 On the charge of failing to answer bail, I sentence you to one months' imprisonment. I direct that this sentence be served concurrently with the sentence imposed on the charge of assist offender.

102 Pursuant to s 6AAA, I declare that if not for your pleas of guilty I would have imposed a sentence of 20 months' imprisonment with a minimum non-parole period of 10 months.

103 Mr Matthews and Mr Burford, pursuant to s 5(2AB), I announce that I have imposed a less severe sentence than I would otherwise have imposed because of your undertakings to assist the Crown. The fact that the undertakings were given and their details have been noted in the records of the Court. You are, of course, both aware that if you fail to live up to your undertakings, you may be resentenced by this Court.

[1] Crimes Act 1958 s 325(4)(b).

[2] [2014] VSCA 342; (2014) 46 VR 308 ('Boulton')

[5] R v Brown [2005] VSC 62 (Assist offender for murder - sentence of 18 months' imprisonment wholly suspended for 2 years); R v Landmark [2015] VSC 103 (Assist offender for intentionally cause serious injury - sentence of 2 years and 3 months' imprisonment); R v Ottobre [2014] VSC 256 (Assist offender for recklessly causing serious injury - sentence of 8 months' imprisonment wholly suspended); DPP v Bahnert [2010] VSC 265 (Assist offender for intentionally causing serious injury - sentence of two years' imprisonment wholly suspended); R v Elliot & Comfort [2003] VSC 292 (Assist offender for recklessly causing serious injury - sentence of 2 years' imprisonment with 20 months suspended); R v Saunders [2007] VSC 298 (Assist offender for murder - sentenced of 304 days' imprisonment being time served); R v Talanoa [2008] VSC 469 (Assist offender for manslaughter - three months' imprisonment).

[6] [2008] VSC 469 [23].

[7] In that case, Whelan J went on to say, 'but in the circumstances here, and particularly given your criminal history, I do not consider that a suspended sentence would be appropriate.': Ibid.

[8] See also DPP v Hornjak & Anor [2013] VSC 114 (Assist offender for manslaughter - sentence of two years' imprisonment, wholly suspended for two years); and R v Bacak [2015] VSC 474 (Assist offender for murder - sentence of 12 months' CCO).

[9] [2015] VSCA 178.

[11] This concession was made before the pre-sentence reports were received.

[12] See Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 [134].