DPP v McCartin & Anor

3 At the trial, the principal issues raised on behalf of you, Benjamin McCartin, were whether the prosecution had proven, beyond reasonable doubt, that at the time at which you stabbed Rowlands, you intended to kill him or cause him really serious injury, and, if so, whether the prosecution had proven, beyond reasonable doubt, that you were not acting in lawful defence of yourself or of another person from a threat of death or really serious injury. By its verdict, the jury was satisfied beyond reasonable doubt of each of those elements of the charge of murder.

4 The three principal issues, raised at the trial on behalf of you, Candice Harper, were whether the prosecution had proven, beyond reasonable doubt, first, that you provided any assistance to McCartin to stab Rowlands, secondly, if so, whether you intentionally assisted McCartin to stab Rowlands, and, thirdly, whether you provided that assistance to McCartin with the intention that McCartin kill Rowlands or cause him really serious injury.

5 By its verdicts, the jury was satisfied, beyond reasonable doubt, that you, Candice Harper and Jamie Holt, each intentionally assisted McCartin to stab Rowlands with a knife, and that in doing so, you each knew that McCartin intended to kill Rowlands or cause him really serious injury, and that you each knew that McCartin was not acting in defence of himself or another person or other persons from a threat of death or really serious injury.

6 At the time of the incident, both of you, Benjamin McCartin and Candice Harper, and Jamie Holt, were residing at the Ibis Hotel, which is located on the west side of King Street a short distance south of the intersection of Bourke Street. At that time, the hotel was providing accommodation to people such as yourselves who were otherwise homeless, and who needed appropriate housing during the COVID-19 pandemic. You, Candice Harper, were residing at the hotel with Holt as your partner. You had previously been a partner of Ricky Rowlands, by whom you had a daughter, Shanay Rowlands, who was then sixteen years of age.

7 At that time, Shanay was living with Ricky Rowlands in Princes Hill. She gave evidence as to some background circumstances, and also as to the events that occurred on the evening of the incident shortly before Ricky Rowlands was stabbed and killed.

8 In her evidence, Shanay said that, about four years previously, Rowlands had suffered a head injury, following which his behaviour changed. He was given to becoming intoxicated, and, in that state, leaving home and 'hanging out' in the central business district, where he would start fights with people while intoxicated. On some of those occasions, Shanay had been summoned to attend at various locations in order to try to persuade her father to return home, so as to keep him out of trouble. Shanay said that sometimes her father would go to the Ibis Hotel, where he would meet up with you, Candice Harper. On some of those occasions, you and Ricky Rowlands were able to interact in a civil manner, but on other occasions an argument would occur between Rowlands and you, and on some of those occasions, your disagreements would become physical, with you and Rowlands pushing and shoving each other.

9 On 10 October 2020, Ricky Rowlands had attended outside the Ibis Hotel some time before 8:00 pm. It is clear from the evidence, including CCTV footage, that he was then affected by alcohol, and he was acting in an aggressive and provocative manner. At about 7:57 pm, you Benjamin McCartin, and Jamie Holt, were also outside the hotel near its entrance. As you were both about to re-enter the hotel, Rowlands commenced to have an altercation with you, McCartin. In the course of that altercation, Rowlands placed you in a headlock, and threw you onto a parked car. You, McCartin, and Jamie Holt, then went back inside the Ibis Hotel. It is apparent from CCTV footage within the hotel that you had sustained some injury to your ribs and also to your nose as a result of Rowlands' actions.

10 After re-entering the hotel, you Benjamin McCartin, and Jamie Holt, then went to the room occupied by Candice Harper. Very shortly after you arrived there, you Candice Harper, made a number of attempts to telephone Shanay. At 8:39 pm, you managed to make contact with her. In the course of the telephone call, you told Shanay that her father was intoxicated, that he was causing trouble, and that he was going to end up getting himself bashed. Shanay told you that she would come to the Ibis Hotel to speak to your father and take him home. In her evidence, Shanay said that at the time you sounded frustrated and annoyed with Rowlands.

11 In the meantime, Ricky Rowlands had remained in the vicinity of the Ibis Hotel. He was observed to walk up and down the footpath of King Street on a number of occasions, during which he approached Samir Chmait, the security guard at the door of the Ibis Hotel. Rowlands attempted to gain access to the hotel, but was refused entry. He asked Chmait, who was a very tall, well-built man, whether he wanted to have an altercation with him. He told Chmait that he wanted to bash each of the three of you. At one point, Rowlands made his way north up King Street and into Bourke Street, where he approached the Alto Hotel. Having been refused entry to that hotel, he then interrupted traffic that was travelling along Bourke Street, and kicked a rubbish bin.

12 At about 9:30 pm, you McCartin and Harper, with Holt, came out of Harper's room on the third floor of the hotel. While you were making your way down to the entry lobby, you McCartin, and Holt, met up with Dale Miller. Miller had attended outside the hotel earlier that evening with his partner Jacinda Brown in order to try to purchase heroin. It would seem that Miller had entered the hotel for that purpose. At the time, he had a knife in the rear of his trousers, but there is no evidence that he showed it to either of you while he was inside the hotel.

13 About 9:30 pm, each of you and Miller descended to the foyer area of the hotel. You, Candice Harper, went outside and sat on the stairs in front of it. You were then on the telephone speaking to Shanay Rowlands. It would seem that Shanay, having received your earlier telephone call, had set out towards the city, but she had not yet arrived at the hotel. When you telephoned Shanay, you told her that you were expecting her to be at the Ibis, and you asked her why she was taking so long. In her evidence, Shanay said that you sounded 'scattered and frustrated'.

14 Dale Miller then proceeded outside, followed by you, McCartin, and Holt. At about 9:33 pm, you, Harper, and Holt, joined Miller and Brown in a group close to the entrance to the Ibis Hotel. Shortly after that, you, McCartin, also joined the group. Miller then backed up to you, Harper, and showed you the knife that he had in the back of his trousers. He then extracted it and showed it to the rest of the group.

15 At about 9:34 pm, you, Harper, then left the group and started to walk north up King Street towards Rowlands. You walked up and down the street on a couple of occasions. Rowlands at that time was approaching the group from the direction of Bourke Street. I am satisfied, on the balance of probabilities, that you, Harper, at that time, went to meet Rowlands in order to try to persuade him to leave, and not to engage in any further violent confrontation with your friends. Rowlands then started to make his way around you. As he did so, Jamie Holt took possession of the knife that Miller and Brown had with them, and he and you, McCartin, then made off together at a brisk pace towards Rowlands.

16 You, McCartin, and Holt then confronted Rowlands. You started to push Rowlands backwards. At the same time, Holt brandished the knife at him. At first he was quite close to Rowlands, but he did not stab him, and I am satisfied that he did not attempt to do so at that point. As you, McCartin, pushed Rowlands back onto King Street across the lanes, Holt and you, Harper, followed him. Holt was continuing to brandish the knife at him. Ultimately, when you had forced Rowlands out onto the far lane of the north-facing traffic, that phase of the altercation temporarily came to an end, when it was interrupted by motor vehicles who were trying to drive past you. The three of you and Rowlands ceased to engage with each other. You, McCartin, picked up your cap that had fallen, and you and Holt walked back towards the footpath. You, Harper, then further verbally engaged with Rowlands. Although on the CCTV footage, your demeanour looked quite heated, I am satisfied, on the balance of probabilities, that you were still endeavouring to persuade him to leave and not engage in further aggressive conduct towards your friends.

17 You, McCartin, and Holt, then made your way back towards the Ibis Hotel. You were followed by Rowlands some distance behind. As Rowlands followed the two of you, you, Candice Harper, then ran up from behind him to intervene. In response, Rowlands grabbed hold of the neck of your jumper and slung you out onto the roadway. You stumbled, but did not fall.

18 At that point, you, McCartin, and Holt, saw what had just occurred. You, McCartin, took from Holt the knife that he had been holding. He and you then made your way purposefully towards Rowlands. You, Harper, were already advancing toward him, as he was backing away from you. Then you, McCartin, intervened, and approached Rowlands with the knife in your hand. At that point, you, Harper, and Holt were attempting to grapple with Rowlands, and, in doing so, Holt struck Rowlands on the head. As Rowlands backed further onto King Street, you, McCartin, purposefully took about ten half steps towards him, while holding the knife by your waist in your right hand. It is quite clear that at that point that you were then lining him up in order to stab him. As you did so, Rowlands backed away from you, with his hands raised defensively. At the same time, you, Harper, also shuffled alongside Rowlands, and at one point you tried to punch him. As the three of you reached the intersection with Bourke Street, you, McCartin stabbed Rowlands in the upper body. Holt then threw a bottle at him, striking him on the head. Rowlands fell onto the ground, but he quickly regained his feet. The three of you then advanced onto him, forcing him back onto the ground. You, Harper, stumbled as you did so, but you quickly regained your feet.

19 At that stage, the altercation had moved back towards the footpath. You, Harper, and Holt, then wrestled Rowlands as he was on the ground, while you, McCartin, stabbed him twice more with the knife. You, McCartin, then walked away, followed by Holt. You, Harper, remained, initially because Rowlands held onto your jumper, and took a swing at you. Rowlands was still standing, but he was bleeding profusely from the waist area. He then fell backwards and released his grip on you. You, Harper, then stood over him and spoke at him for the next sixty seconds or so. It seems quite clear from your demeanour, that you were berating him in angry terms.

20 Following the incident, police and ambulance were summoned. Rowlands was conveyed to the Royal Melbourne Hospital where he underwent an emergency operation in respect of the stab wounds that he had sustained, as well as a skull fracture and left subdural haematoma that he had sustained as a result of falling forcefully to the ground after he had been stabbed. Despite being resuscitated, he was deemed to have unsurvivable injuries, and he passed away at 6:00 am on the following morning, 11 October.

21 After the incident, you, McCartin, returned to the Ibis Hotel, where you changed and disposed of the clothing that you had been wearing during the incident. You then made a hurried exit via the fire escape, seeking to avoid being seen by any police as you did so, and you remained away from the hotel for four days, until you were arrested by police on 14 October. After your arrest, you appeared to be in need of medical attention so you were conveyed to hospital where you remained under police guard. While you were there, you said to the detective who was guarding you 'I didn't mean to do it'. On the following day, you were discharged from hospital, and conveyed to Melbourne West Police Station. A forensic medical officer concluded that you were then medically unfit to be interviewed, and as a result no formal interview was undertaken with you.

22 You, Harper, and Holt, were each arrested on 10 October in the Ibis Hotel.

23 Before your arrest, you, Harper, having returned to the hotel, had made your way to a different room than the one which you were occupying. There you removed your shoes and pants. You then left that room and made your way to another room, where you changed into new pants and a different top.

24 Following your arrest that evening, you were interviewed by police. In the interview, you said that you did not see what McCartin had stabbed Rowlands with, that you only saw a glimpse of the item just before the stabbing took place, and that you only then saw the knife. At the trial, the prosecution relied on your change of clothing, and your answers to police, which it contended were untruthful, as an implied admission by you that you had joined in the assault on Rowlands knowing that McCartin had the knife and was intending to use it to stab him.

25 As I have discussed, by its verdict, the jury was satisfied, beyond reasonable doubt, that when you, McCartin, stabbed Rowlands, you intended to kill him or to at least cause him really serious injury. Similarly, by its verdicts, the jury was satisfied beyond reasonable doubt, that you, Harper, with Holt, intentionally assisted McCartin to stab Rowlands with the knife, and in doing so, you knew that McCartin intended to kill Rowlands or to cause him really serious injury. For the purpose of sentencing you, it is necessary to reach a conclusion as to the time at which each of you formed the relevant intention that Rowlands be killed, or suffer really serious injury, in the incident that occurred.

26 I am satisfied that neither of you had such an intention either before, or during, the first phase of the incident, that is, the part of the incident in which Holt took possession of the knife from Miller and Brown, and then the three of you forced Rowlands onto the roadway, where the altercation came temporarily to an end when interrupted by the traffic. At that point, Holt had possession of the knife. As I have stated, at one point, he came quite close to Rowlands, but I am satisfied that while he brandished it at Rowlands, he did not attempt to stab him. In the remainder of this phase of the incident, Holt remained about one lane's width away from Rowlands, brandishing the knife, as if to deter him or frighten him away. You, McCartin, were the aggressor in that phase of the incident. You forced Rowlands across the roadway. At the most, you struck one blow at him. It could not be concluded that, at that stage, you had an intention to kill him or to cause him really serious injury. You, Harper, were only involved to the extent that you followed McCartin, and stood near Holt, during that first phase of the incident.

27 The second phase of the incident took place after you, McCartin, and Holt, had observed Rowlands sling Harper towards the roadway. It was then that you, McCartin, took possession of the knife from Holt. I am satisfied, from the footage taken from the premises at 607 Bourke Street, that you deliberately took the knife from Holt. It was plain from your demeanour, and from what followed, that you then had an intention to use the knife aggressively against Rowlands. It is quite clear, from what had occurred in the first phase of the incident, that you did not need to take possession of the knife in order to intimidate Rowlands or to persuade him to depart.

28 It could be concluded that at the time at which you took possession of the knife from Holt, you then formulated an intention to cause death or really serious injury to Rowlands with it, but, on reflection, I would not be prepared to form that conclusion beyond reasonable doubt. However, as I have described, when you then proceeded to approach Rowlands on the roadway, armed with the knife, and he backed defensively away from you, you then purposefully took a number of half steps towards him. It is plain that you were then trying to line him up in order to stab him. At that point, I am satisfied, beyond reasonable doubt, that you had then formed the intention to kill him or at least to cause him really serious injury. It was in the moments that followed that you stabbed him three times, twice while he was being restrained by Holt and Harper. You stabbed him forcefully in a vulnerable part of the body, and your conduct in doing so was entirely unnecessary. Consistent with the verdicts of the jury, I am satisfied, beyond reasonable doubt, that at the latest, you had formulated the requisite intention to kill him, or to cause him really serious injury, when you started to take those short steps towards Rowlands, aligning yourself to stab him.

29 In your case, Candice Harper, I am satisfied, on the balance of probabilities, that up to and including the first phase of the incident, your principal objective was to try to persuade Rowlands to leave the area, and to not engage in any further violent confrontation with McCartin and Holt. I am satisfied that that was your intention, both when you left the group earlier to try to intervene and stop Rowlands approaching it, and also after Holt had the knife in his hand, and during the first phase of the altercation that spilt out onto the roadway. After that phase had been interrupted by the traffic, I am satisfied that you again tried to persuade Rowlands to leave. Further, when Rowlands followed McCartin and Holt down King Street, after the first phase, had completed, I am satisfied, on the balance of probabilities, that you pursued him and caught up with him to try again to persuade him to cease his aggressive conduct. Certainly, your conduct at that time itself was quite forceful and perhaps heated. Nevertheless, I am satisfied that your overall intention at that point was to prevent any further violence occurring.

30 I am satisfied that after Rowlands had slung you towards the ground, your attitude towards him did change. You were then angry with him, and you gave vent to that anger by trying to grapple with him at the commencement of the second phase of the incident. I am further satisfied, beyond reasonable doubt, that that anger converted into the requisite intent that Rowlands be killed, or suffer really serious injury, at the time at which McCartin was approaching him with the knife and you were also advancing on him. You then intentionally assisted and encouraged McCartin to stab Rowlands with the intention that he be killed or suffer really serious injury. Following the first stab wound, you forcefully wrestled with Rowlands, and, with Holt, helped to hold him down while McCartin again stabbed him. I am satisfied, beyond reasonable doubt, consistent with the verdict of the jury, that you intentionally assisted and encouraged McCartin to inflict each of the stab wounds on Ricky Rowlands, with the intention that he be killed or suffer really serious injury. That intention was confirmed by your conduct after Rowlands had been stabbed, and, bleeding profusely, fell onto the roadway. You showed no remorse at all, but instead heatedly berated him, even while he lay bleeding, and almost lifeless, on the ground.

31 You have both been convicted of murder, which is the most serious criminal offence in our justice system. The maximum sentence for murder is life imprisonment, reflecting the fundamental seriousness of that offence, and the value which our society rightly places on each individual human life. There were a number of serious factors attaching to the offending of each of you. It involved an attack by the three of you on an unarmed person, with you, McCartin, armed with a knife. Your use of the knife, and the fact that you, McCartin, carried the knife in confronting Rowlands, was entirely unnecessary. It was quite clear from the first phase of the incident that you, McCartin, had been able to physically get the better of Rowlands. There was no need for you to carry the knife, let alone to stab Rowlands three times with it.

32 On the plea, it was submitted, on behalf of both of you, that I should conclude that your respective intentions were to cause Rowlands really serious injury, but not to kill him. As the Court of Appeal has noted, the distinction between an intention to kill and an intention to cause really serious injury is, at the most, a very fine distinction[1]. In the present case, which involved three forceful stab wounds to the upper body, there is, in my view, no relevant difference between an intention to kill and an intention to cause really serious injury. For the purpose of sentencing, each such intention is equally culpable.

33 On the plea, Mr Glynn, who appeared with Ms Manova for the prosecution, submitted that when the three of you came out of Candice Harper's room at 9:30 pm, and made your way outside, you each then intended to violently confront Rowlands, albeit that you did not then have an intention to kill him, or cause him really serious injury. It is quite apparent that at the time at which you made your way outside, you, Candice Harper, were still awaiting the arrival of your daughter, Shanay. I am not prepared to accept that, at that point, any of you had an intention to violently confront Rowlands. However, after you had gone outside, and observed Rowlands continuing to walk aggressively down King Street in the direction of the Ibis Hotel, I am satisfied, beyond reasonable doubt, that you then formed an intention, between the three of you, that you, McCartin, with Holt, would confront Rowlands in order to persuade him to leave the location. While that intention was unwise, particularly in hindsight, I do not regard it as an aggravating feature of your conduct in the circumstances of the case.

34 By your criminal actions, you, McCartin and Harper, with Holt, have taken the life of Ricky Rowlands. At the time of his death, Ricky Rowlands was 46 years of age. I have read, and re-read, the victim impact statements of Ricky Rowlands' daughter Shanay Rowlands, his son Trae Rowlands, his sisters, Tracey Rowlands and Angela Rowlands, his brother Matthew Osbourne, and his partner, Bethany Micaleff. Four of those statements were read aloud in Court in the course of the plea. Ricky Rowlands was a much loved and valued father, brother and partner to them. While Ricky Rowlands was the principal victim of your crime, nevertheless it is clear that those members of his family, and others, are also real victims of it.

35 The victim impact statements are relevant, because they are a salutary reminder of the extent and depth of the grief and suffering that have been, and will continue to be, the inevitable consequence of the offence which you each committed. While your sentences are to be based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important to keep in mind the grave effects of the crime that you have each committed, and the deep sorrow and pain that has been, and will continue to be, a direct consequence of it.

36 I now turn to matters personal to each of you that are relevant to the determination of your respective sentences.

37 Benjamin McCartin, you have a lengthy and substantial criminal history, which includes convictions for recklessly causing injury, assault by kicking, assault in company, assault and resist an officer in the execution of duty, and affray. You also have a number of convictions for offences of dishonesty.

38 Your history commenced in 1998, when you were 18 years of age. On that occasion, you were sentenced by the Ringwood Magistrates' Court, without conviction, to a community based order, on one charge of recklessly causing injury. Since then, you have been sentenced, on six separate occasions, to terms of imprisonment, and on one occasion to be detained in a youth justice centre. All of your previous matters have been dealt with in the Magistrates' Courts. Those matters include, but are not limited to, the following.

39 In February 1998, when you were 18 years of age, you were before the Ringwood Magistrates' Court on one charge of recklessly causing injury. You were sentenced, without conviction, to a community based order for 12 months. On 10 March 1999, you were again before the Ringwood Magistrates' Court on charges of assault by kicking and assault in company, for which you were convicted and sentenced to a community based order for 24 months. Two weeks later, you were again before the same court on charges of recklessly causing injury and assault by kicking, for which you were sentenced to 20 days' imprisonment, the whole sentence of which was suspended for a period of 12 months. Four months later, in July 1999, you came before the Melbourne Magistrates' Court on a charge of failing to comply with the community based order imposed in March, and also on a number of other charges for offences of dishonesty. You were sentenced, in total, to 9 months' detention in a youth training centre.

40 In March 2001, you were sentenced by the Moama Local Court to 6 months' imprisonment, the whole of which was suspended for a period of 6 months, on charges that included assaulting and resisting an officer in the execution of duty, common assault, and destroying or damaging property. In August 2002, you were sentenced by the Melbourne Magistrates' Court to one month imprisonment on one charge of unlawful assault. In October 2005, the Ringwood Magistrates' Court sentenced you to imprisonment for 1 year for a number of offences, which included recklessly threatening serious injury, possession of a controlled weapon without excuse, and theft from a shop. In January 2007, you were sentenced by the Melbourne Magistrates' Court to 14 months' imprisonment on one charge of burglary, and one charge of attempt to commit an indictable offence.

41 Moving ahead, during the next six years, you came before the Magistrates' Courts on a number of occasions, principally on charges of offences involving dishonesty. In July 2013, you were sentenced to a term of 6 months' imprisonment by the Melbourne Magistrates' Court on three charges of obtaining property by deception, two charges of theft, and one charge of failing to answer bail. In May 2015, you were sentenced by the Melbourne Magistrates' Court to 75 days' imprisonment on charges that included unlawful assault, resisting police, and possession of a controlled weapon without excuse. In November 2017, the Melbourne Magistrates' Court sentenced you to an aggregate term of 5 months' imprisonment on charges of affray and possession of a controlled weapon without excuse. Finally, in August 2019, you were dealt with by the Barwon Remand Court on charges that included carrying a controlled weapon without excuse, negligently dealing with the proceeds of crime, theft, and committing an indictable offence while on bail. With conviction, you were fined on each charge.

42 In respect of your personal life, you were born in December 1979, and accordingly you are now 43 years of age. You are the second eldest of eight children. Your father worked for CitiPower and your mother was a homemaker.

43 Each of your other siblings have been law abiding citizens and have a history of gainful employment. It would appear that you were the exception, and were described by your counsel on your plea as the 'black sheep' of the family. You attended a number of schools. You repeated Year 4, and in Year 7, you commenced to demonstrate behavioural and learning disturbance issues. As a result of your behaviour, you were expelled from a number of schools. On leaving school, you commenced a plumbing apprenticeship, and worked for a number of years in that capacity, but you did not complete the apprenticeship. You also worked for some time with Susan Day Cakes, which was then based in Auburn. However, subsequently, you have been on a disability support pension for a long time. You have one son by a previous relationship, but you have not seen him since he was four years of age. Your relationship with his mother ceased some time ago due to your abuse of drugs.

44 From your early teenage years, your life has been blighted by your long-standing abuse of drugs. You started to use heroin at the age of 15 years, and you soon became dependent on it. From the age of 17 years, you used it intravenously daily, and you continued to do so until you were 40 years of age. At the time of the offending with which this case is concerned, you had also been using methamphetamine for a number of years. You were also abusing the prescription medication, benzodiazepines. In your early years, you had been a heavy alcohol drinker, to the point at which you became addicted. It would seem that your consumption of alcohol had decreased at the time of the offending.

45 Over the years, you have had some mental health issues as a result of your addiction to those drugs. I was informed on your plea that your mental health records contain a history of multiple inpatient admissions due to suicidal behaviour and drug-induced psychoses. In 2011, you were diagnosed with a schizo-affective disorder and substance abuse. In 2015, following an overnight admission to the Inner West Area Mental Health Unit, you were diagnosed with adjustment disorder, antisocial personality disorder and substance use. A forensic psychiatric assessment was conducted, but the psychiatrist did not consider that your symptoms were typical of a schizophrenic illness. In June 2015, a psychiatrist, who assessed you at Melbourne Assessment Prison, considered that you had then a drug-induced psychosis, rather than an enduring mental illness.

46 Subsequently, you have been admitted to St Vincent's Hospital on a number of occasions, the last one of which was in late 2015. In the years that followed, you have had inpatient admissions to other hospitals, suffering from perceptual disturbances due to your drug abuse. In November 2018, you were admitted to the Royal Melbourne Hospital for five days, and a consultant psychiatrist formed the view that you did not, at that time, have any psychotic symptoms.

47 Until March 2020, you had been residing with a friend in Fitzroy North for a number of years. At that time, due to the onset of the COVID-19 pandemic, you were provided accommodation at the Ibis Hotel. It was there that you met Candice Harper, although you already knew Jamie Holt. In the lead-up to the offence, you had not been compliant with depot medication which had been prescribed by a general practitioner, and you were using illicit drugs, which I have already mentioned.

48 After your arrest, you were detained in the Melbourne Assessment Prison. You were considered to be delusional, and a psychiatrist commenced you on oral Olanzapine and recommenced you on depot medication. On review in November 2020, you were then displaying no clear evidence of active psychosis, and you did not present as having any symptoms of schizophrenia. In February 2021, you were discharged from the Acute Assessment Unit, and you were transferred from the Melbourne Assessment Prison to St Paul's Unit at Port Phillip Prison in April 2021. Later in that year, your medication was changed. The psychiatrist, who examined you, considered that you did not then present as being actively psychotic. In July 2022, you were discharged from the St Paul's Psychosocial Unit. In early 2023, you recommenced depot medication, and you have also been maintained on antipsychotic and antidepressant medication.

49 Due to the COVID-19 restrictions, you did not receive visitors in the early part of your time in custody, and your ability to participate in programs was limited. You have recently commenced working in the nuts and bolts factory five days per week and you have a single cell in the mainstream unit at Port Phillip Prison. You have also completed some courses while on remand, including COVID cleaning, occupational health and safety, and food handling.

50 In summary, it would seem quite clear that, from your early years, your life has been dominated by your abuse of illicit substances, which, in turn, have had an adverse effect on your mental health. While those matters are relevant context to, and provide some explanation for, your conduct and your involvement in the murder of Ricky Rowlands, your counsel, quite correctly, did not submit that they reduce or mitigate your personal responsibility for your criminal actions.

51 You, Candice Harper, also have a number of previous convictions, although they are significantly less in number, and less serious, than those of your two co-offenders. Each of your matters were dealt with before the Magistrates' Courts, and you have not previously been sentenced to any term of imprisonment.

52 You first came before the Magistrates' Courts in 1996 and 1997, when you were 20 years of age, on drug-related charges. Since then, your previous offending mainly involved charges of dishonesty and possession and trafficking of drugs, but it also did include some charges involving violence. Specifically, in June 2004, you were fined without conviction by the Broadmeadows Magistrates' Court on charges of trespass on land and assault police. In October 2005, you were convicted, and received a community based order for 12 months, on a number of charges for offences of dishonesty and drug-related offences, including trafficking and possession of heroin. Subsequently, in January 2007, you came before the Melbourne Magistrates' Court for failing to comply with the community based order. The original order was varied, and a further community based order was imposed.

53 In December 2012, the Sunshine Magistrates' Court sentenced you to a community corrections order for 8 months for one charge of affray. Twelve months later, you were before the Melbourne Magistrates' Court for contravention of that order, and you were sentenced to 2 months' imprisonment, which was suspended for a period of 6 months. On the same date, the Melbourne Magistrates' Court convicted you and imposed a community corrections order for 12 months in respect of charges of trafficking and possession of heroin, and possession of a drug of dependence. In December 2015, the Melbourne Magistrates' Court fined you $1,000 in respect of charges that included assaulting and resisting an emergency worker on duty, and committing an indictable offence while on bail. Nine months later, in September 2016, that Court imposed a further community corrections order in respect of charges that included burglary, recklessly causing injury, unlawful assault, and criminal damage. In December 2018, you came before the Melbourne Magistrates' Court for contravention of that community correction order, and also on charges of resisting and assaulting an emergency worker on duty, and theft from a shop. The community corrections order was confirmed, and you were fined on the charges. Finally, in September 2019, the Melbourne Magistrates' Court convicted you and fined you $500 on one charge of theft from a shop.

54 In respect of your personal circumstances, you were born in November 1976, and you are now 46 years of age. Your parents separated when you were eight years of age. Before their separation, you witnessed your father being physically violent towards your mother. After your parents separated, you remained living with your mother. However, it would seem that your mother had alcohol abuse issues, and you were subjected to emotional abuse by her. During that time, you were exposed to repeated acts of violence perpetrated against your mother by numerous partners with whom she then lived. During those years, you felt excluded by your mother, and ultimately, at the age of 13, your mother relinquished your care to your father.

55 After you returned to live with your father, you were again the victim of emotional and physical abuse at his hands. Your father did little to provide proper parenting for you. He would drink to excess and often physically assault you in front of friends. During that time, you were sexually abused by a friend of your father. Ultimately, after a particularly serious assault on you by your father, you were removed from his care, and, for a period, placed in the care of the Department of Human Services.

56 As a result of your troubled and difficult childhood, you had a disrupted education. You attended some seven schools before you ceased formal education part way through Year 11. At that time, your father told you that you must leave his home. At one point, you were homeless, and you started sleeping in an abandoned shop.

57 At the age of 16 years, you ceased having a relationship with your mother. At about that time, she moved to live in Queensland with your sister, and you have had very little contact with her since. Despite your father's violence towards you during your childhood, you did establish a good relationship with him during your adulthood. He remained a constant support for you until he suddenly passed away in May 2022. You had spoken to him on the telephone shortly before he died, and his death occasioned you great distress. Your grief was exacerbated by the fact that, as a result of the COVID-19 epidemic, you were not able to attend his funeral.

58 Despite your disrupted education, you have had substantial periods of regular gainful employment. After you left school, you completed a chef's apprenticeship. You were then employed as a chef between 1999 and 2003. During the next eight years, you did not work, as you were then raising your three children. You recommenced employment as a chef in 2011, and worked in that capacity until 2019. At that time, you lost your employment due to issues substantially related to your drug addiction.

59 In terms of your personal life, you have had a number of relationships with different men, most of which have been marked by domestic violence and drug abuse. You first had a two year relationship between the ages of 18 and 20 years. Following that, you had a number of other short-term relationships. You met Ricky Rowlands some six months after ending a previous relationship, and you were in a relationship with him for some four years between 2001 and 2004. You reported numerous instances of violence by Ricky Rowlands. Police records indicate at least 13 instances, between 2002 and 2016, when police attended in order to intervene as a result of Rowlands' behaviour towards you. While some of those occasions were limited to verbal abuse, others involved physical assaults by Rowlands. On one occasion, you suffered a significant laceration for which you needed a number of stitches. As a result, police obtained a family violence intervention order on your behalf. Your daughter, Shanay, was born in January 2004. Following that, another family violence intervention order was initiated after Ricky Rowlands smashed the front windows of your house.

60 Shortly after Shanay's birth, your relationship with Rowlands ceased. You then commenced a relationship with another man, and in November 2006, your daughter, M (a pseudonym), was born. Your partner was seriously addicted to heroin, and after two years, your relationship with him came to an end. You then partnered with another man, and, in February 2009, you gave birth to your youngest child, a son, Michael. Subsequently, in 2011, you commenced a relationship with Jamie Holt. Your relationship with him continued until you were both arrested in relation to the current matter. It would appear that the relationship was marked with polysubstance abuse by both of you.

61 In early 2005, Shanay had been removed from your care due to your drug use, and also due to reported violence by Ricky Rowlands. Following that, you were able to remain abstinent from drugs for a period of time, and you regained custody of Shanay. However, by the end of 2007, both M and Shanay had again been placed in the care of the Department of Human Services. Following that, you had custody of your children off and on until 2014.

62 Since you have been in custody, you have maintained regular telephone contact with both Shanay and M. However, you lost contact with your son Michael after his fourteenth birthday in February 2022.

63 From your teenage years, you have used illicit drugs and consumed alcohol. You commenced smoking cannabis at the age of 17 years. You then graduated to using amphetamine for a period of two years. You commenced using methamphetamine, but you did not continue to use it due to its side-effects. Heroin has been your drug of choice, and you have engaged in the heavy abuse of it since the age of 28 years. At the time of the offending, you and Jamie Holt were living at the Ibis Hotel, which, it would seem, was somewhat of a haven for drug abusers.

64 It is apparent that, as a result of your dysfunctional and difficult upbringing, and your associated drug abuse, you have had mental health issues over the years. You commenced attending Dr Michael Aufgang, a general practitioner, at the Meadows Medical Centre in September 2009. Over the years, Dr Aufgang treated you for ongoing conditions of anxiety and depression, which were first diagnosed in 2010. You ceased attending the clinic in October 2018.

65 In March of this year, you were examined by Ms Carla Ferrari, a forensic psychologist, for the purposes of the plea. After taking a detailed history from you, and conducting psychometric testing, Ms Ferrari concluded that, due to your history of family violence, childhood sexual abuse, parental rejection, and instability, you have developed a Post-Traumatic Stress Disorder, which has resulted in persistent symptoms of depression and anxiety. Ms Ferrari is of the opinion that those conditions have been reinforced by your involvement in a series of dysfunctional relationships as an adult, which usually involved family violence perpetrated towards yourself, as well as mutual substance abuse. Ms Ferrari expressed the view that your experience of PTSD can cause you to experience chronically high levels of stress and anxiety. She considered that individuals with PTSD, such as yourself, are more likely to respond to situations disproportionately when their threat system is reactivated, and that emotional dysregulation, associated with your condition, impairs your problem solving and information processing capabilities.

66 In addition, Ms Ferrari is of the opinion that, due to your mental health concerns, you are likely to find your experience of imprisonment more onerous than an individual without your condition. In particular, there is potential for significant mood fluctuation, and the volatile nature of a prison environment can further aggravate your symptoms. Ms Ferrari has recommended that you engage with WestCASA, that you have access to educational and vocational resources, and that you undergo treatment from a forensic psychologist.

67 Your difficult and dysfunctional upbringing, the violence that you have suffered at the hands of a number of partners over the years, and the post-traumatic stress disorder that you have suffered as a consequence, are relevant to an assessment of your moral culpability - that is, your personal subjective responsibility - for the murder of Ricky Rowlands. Those considerations do not, of course, detract from the circumstance that, without any justification, you intentionally assisted McCartin to murder Ricky Rowlands. However, as discussed with your counsel in the course of the plea, I accept that, in view of your dysfunctional upbringing and circumstances of your adult life, and the effects that has had on your psychological wellbeing, your reactions at the time of the offence could not be judged in the same way as the reactions of someone who had not been through and suffered the difficult circumstances of your life. To that extent, your moral culpability is reduced.

68 It is also quite evident that since you have been detained in custody, you have made genuine efforts to address your underlying drug addiction, which has played a significant role, not only in your involvement in the murder of Ricky Rowlands, but also in your previous offending. After you were remanded in custody, you were initially housed in a mental health unit, to assist with you to withdraw from substances, and to address your compromised mental state. Since then, you have been engaged in active employment. Initially, you worked as a kitchen hand. More recently, you have been promoted to a job that involves you driving a delivery cart, taking meals and kitchen supplies from the stores in the kitchen to each of the units. For that purpose, you have been provided with a buggy vehicle, which is a reflection of the trust which the prison authorities have felt fit to repose in you.

69 You were referred to WestCASA for counselling in November 2020. Reports obtained from that organisation have noted that you have engaged extremely well in their program, and that you have taken genuine steps to voluntarily address the significant traumas that you have experienced in your life. You have also engaged with the Drummond Street Services, which conducts a family violence program at the Dame Phyllis Frost Centre. A report from the specialist who conducts that program has noted that you have engaged constructively and positively, and that you are an asset to the group work experience involved in the program. I also note that you have undertaken a number of courses in prison.

70 It is also apparent that those who know you most closely have noticed a significant improvement in your demeanour and outlook since you have been in prison. The foster mother of M, with whom you have kept in contact over the years, has noted that you have changed significantly, and that you look like a 'completely different person'. Your daughter, M, has said that while she has always had a good relationship with you, it is now much better since you have remained drug-free, and have been addressing your issues in custody.

71 Ms Ferrari expressed the view that you would be a moderate to high risk of future physical violence if your conditions remain untreated and you continue to abuse substances. It would seem, from your progress in prison, and the work that you have undertaken there, that, notwithstanding Ms Ferrari's view, your prospects of rehabilitation are positive, provided that you continue to address your drug abuse issues.

72 Those, then, are the matters that are personal to each of you.

73 In summary, as I have discussed, the offence committed by both of you was most serious, involving the intentional taking of the life of another human being. In addition, there were some serious aspects to it. On the other hand, I take into account that your offending was not premeditated, and that you each formulated an intention to kill, or to cause really serious injury to, Ricky Rowlands only shortly before you, McCartin, stabbed him. I also take into account that the offending occurred in dynamic circumstances which involved aggressive and provocative conduct by Ricky Rowlands, and in circumstances in which you, Candice Harper, had sought to defuse the situation both by contacting your daughter, Shanay, and also by trying to persuade Rowlands to depart.

74 In sentencing each of you, I also take into account the personal matters that I have discussed as mitigating circumstances. They are relevant, and it is necessary to accord them appropriate weight.

75 The principles, which apply to the determination of your sentences, are well established. It is necessary that the sentence that I impose on you be sufficient to adequately express the condemnation by the Court, and by the community, of your offending, and to vindicate the value of the life of each member of our community. In addition, the sentence must be sufficiently severe to serve as a general deterrent to others, by constituting a clear message to any person, who might be minded to engage in such violence against another person, that such conduct will be met with a stern sentence, involving the deprivation of the offender's right to be at liberty in society for a substantial period of time. In addition, it is important that the sentence, that I impose on each of you, is sufficient to ensure that you learn that any further act of violence, of the kind in which you engaged in this case, will be met with severe consequences.

76 In determining your sentences, I do take into account, as a mitigating circumstance, the onerous conditions of incarceration which have applied during the last two years due to steps that have been taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. Those steps involved a cessation of personal visits, suspension of educational and other courses, and a number of lockdown procedures which greatly reduced the hours which you have both been permitted to spend outside your cells. As a consequence, the time that you have both spent in custody, since your arrest, has been more burdensome for you. While those restrictions have now been removed, I do take into account that there is at least a reasonable possibility that during the ensuing years, they will be required to be re-implemented in order to protect the prison population, with the result that the circumstances of each of you in custody will again become more burdensome.

77 As the offence was committed after February 2018, I take into account that the standard sentence prescribed by the Sentencing Act for murder is 25 years' imprisonment. Pursuant to the Act, that period is described as a sentence for an offence of murder that, taking into account only the objective factors, is in the middle range of seriousness. As the Court of Appeal has noted, the standard sentence is only one factor to be taken into account in determining your sentence, and it is to be treated as a legislative guidepost.[2]

78 In addition, in determining the sentence that I am to impose on each of you, I have had regard to sentencing practices. In that respect, I have been assisted by sentencing decisions since the commencement of the standard sentencing system to which both the prosecution, and counsel for you, McCartin, have referred me. In considering those decisions, I bear in mind that no two cases are alike, either in terms of the nature of the offending, or in respect of the various mitigating circumstances that may be relevant to the particular offender. Nevertheless, the decisions to which I have been referred do, in a broad sense, assist to indicate the current sentencing practices that are relevant in respect of the offence committed by each of you. As the High Court has emphasised, current sentencing practices are but one factor out of many which are relevant to the determination of your sentences.

79 In determining the term of imprisonment to which you are each to be sentenced, it is necessary to give appropriate effect to the principle of parity of sentencing. In that respect, it is apparent that the role played by you, Benjamin McCartin, was more serious and more substantial than that played by you, Candice Harper. It was you, McCartin, who took the lead in attacking Ricky Rowlands with the knife. While Harper and Holt were encouraging you to do so, nevertheless it was you who, with knife in hand, advanced on Rowlands lining him up, and then stabbing him with the knife. Again, while you, Harper, and Holt were assisting to grapple with and take hold of Rowlands, it was you McCartin who decided to again twice more stab him with the knife.

80 In those circumstances, your offending was, both from an objective and a subjective point of view, more serious and substantial than that of Candice Harper. In addition, you have a more substantial criminal record than do you, Candice Harper. Further, for the reasons that I have already discussed, the personal mitigating circumstances that apply to you, Candice Harper, are more substantial than in your case, Benjamin McCartin.

81 Taking those matters into account, I now sentence both of you as follows.

82 Benjamin McCartin. For the murder of Ricky Rowlands, I sentence you to 22 years' imprisonment. I fix a minimum non-parole period of 16 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 916 days (not including today's date) be reckoned as served under this sentence, and I shall cause a declaration to that effect to be noted in the records of the Court.

83 Candice Harper. For the murder of Ricky Rowlands, I sentence you to 18 years' imprisonment. I fix a minimum non-parole period of 13 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 919 days (not including today's date) be reckoned as served under this sentence, and I shall cause a declaration to that effect to be noted in the records of the Court.

84 As required by s 5B (5) of the Sentencing Act, I note that the sentence that I impose on each of you is less than the standard sentence. I have imposed those sentences having regard to the standard sentence specified for the offence, and based on my assessment of the seriousness of the offending, my assessment of your subjective culpability for the offending, your past criminal histories, and the mitigating circumstances I have referred to.

[1] Walters v The Queen [2019] VSCA 164, [9].

[2] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462.