I express my regret to persons who are affected by this case and to the accused for my delay in pronouncing sentence. As you may know, I had an accident which required hospitalisation and surgery, and I am sorry this has taken that time.

Before proceeding to sentence, I will very briefly refer to some formal matters.

The presentment has been amended by the deletion of count 4 of the original presentment and by the sequential re-numbering of counts 5 to 8 now to read counts 4 to 7, as will be apparent from the transcript of this sentence.

Mr Fraser, in relation to the forensic procedure, the matter under s.464ZF, is there anything further that needs to be said ?

MR FRASER: No, Your Honour. I think I have already previously indicated.

HIS HONOUR: I am satisfied under the Crimes Act 1958 s.464ZF(2) that a forensic procedure ought to be undertaken in relation to the first accused Mr McLeod, and I so order. Next, under s.78(1) of the Confiscation Act 1997 I am satisfied that the disposal order there sought ought be made, and I sign that order; and finally counsel might like to confirm, at a convenient time, my calculation that the first accused, Mr McLeod, has now served 488 days of pre-sentence detention and I propose in due course to order that those 488 days be declared as already served under the sentence I shall impose upon him.

Before turning to the formal sentences and the reasons therefor, I will address now the second and the third accused before I proceed to the major matters.

In relation to the second accused, Mr David Bumpstead, he has already served 234 days in pre-sentence detention, which is about seven and a half months. I propose in the case of the second accused to direct that he have a suspended gaol sentence to operate from now, so that, at the conclusion of these proceedings, he will be able not to remain further in custody. I propose to order that he has a sentence of imprisonment of two years, 18 months of which are suspended, which means he would have to serve six months. He has already served more than that, and I declare, pursuant to s.18(4) of the Sentencing Act 1991 that 234 days have been served in custody by Mr Bumpstead and, accordingly, he has served that six months now, which means he will be free to leave the court at the conclusion of today's proceedings.

Mr David Bumpstead, will you kindly stand up first? The purpose of the suspended sentence is that it is indeed a sentence of imprisonment. But you have already served six months, and you are not required to remain in custody for the balance of the sentence of imprisonment; do you understand that?

HIS HONOUR: And if during the period of the sentence still to run you commit another offence punishable by imprisonment, you will be brought back here, and then I will sentence you for this particular crime, and you may ordered to serve the balance of the time; do you understand that?

PRISONER DAVID BUMPSTEAD: Yes, thank you, Your Honour.

HIS HONOUR: Are you prepared to undertake all of that?

HIS HONOUR: Thank you very much, Mr Bumpstead; you may be seated.

In relation to Ms Paula Bumpstead, one of the provisions of the Sentencing Act 1991 which applies to suspended sentences is section 27(3), which says that a suspended sentence is not to be imposed unless I consider that a sentence of imprisonment in the first place otherwise would be appropriate. I am not satisfied in her case, because of the very minor part she played in these terrible events, that she should have any sentence of imprisonment at all. Nor do I consider a community-based order under Part 3, Division 3 is appropriate, because I do not consider she needs the therapy contemplated by that Division. I consider in her case the appropriate sentence is that I convict her of the crime with which she is charged and adjourn for two years the proceedings on an undertaking, if she is prepared to give it, that she comply with the law during that period. There are no special conditions which are appropriate to be imposed. She is not required to attend this court in two years' time unless she commits any offence in the meantime. I will adjourn the proceedings to August 2001, and assuming she has committed no further offences, the matter will then be finalised.

Ms Bumpstead, will you be good enough to stand up? That means you do not have a suspended sentence of imprisonment but rather, what in the old days we used to call a bond. It is now called something different, but it is basically the same thing.

Are you participated to sign an undertaking that you will comply with the law for that two-year period?

HIS HONOUR: Very well. You may sit down as well. I will give my reasons in a moment, and then I will come back formally and pronounce those sentences in relation to the second and the third accused.

2. Mr Stephen McLeod has pleaded guilty before me to the manslaughter on 1 October 1989 of Andrew John Smythe. The second accused Mr David Bumpstead, has pleaded guilty before me to being an accessory after the manslaughter of Mr Smythe on 1 October 1989. The third accused, Ms Paula Bumpstead, has pleaded guilty before me to being an accessory after the manslaughter of Mr Smythe between 1 October 1989 and 17 January 1990.

5. Essentially, the prosecution brings the three charges on the following bases: that the first accused unlawfully caused the death of Mr Smythe by an unlawful and dangerous act; that the second accused, Mr Bumpstead, was an accessory after the fact because he assisted in the disposal of the body of the deceased: and that the third accused, Ms Bumpstead, was also an accessory after the fact, but in a minor way in that she made a misleading statement to the investigating police on 17 January 1990. Ms Bumpstead played no part in the death of the deceased and played no part in the disposal of the body of the deceased. When the body was disposed of Ms Bumpstead did not know that the deceased was dead.

8. The first accused Mr Stephen McLeod is also charged with a number of drug offences which I will come to at the conclusion of dealing with the manslaughter of the deceased.

11. The deceased was born on 28 October 1965 at Melbourne and was 23 years of age at the time of his death on 1 October 1989. He was the youngest of five children in his family, and always lived in the Port Melbourne and Albert Park area. He was working at the time of his death part-time as a courier and also had sought employment on the Melbourne Docks. He regularly trained at a South Melbourne gymnasium and was a keen and continuous amateur boxer. At the time of his death he resided at 128 Station Street, Port Melbourne, where he met his death.

14. The first accused, Mr Stephen McLeod was born on 25 August 1960 in Geelong. He was on 1 October 1989, therefore, 29 years. He is now almost 39 years. Mr McLeod was the second eldest of five children and changed his name by deed poll in 1991 from Bumpstead to McLeod, which was his mother's maiden name. That change of name did not relate to any attempts to hide the consequences of this crime. Mr McLeod had previously worked as a labourer and a plumber in the Torquay area and then for a roofing company in Queensland and had come down to Melbourne as a consequence of a separation in Queensland and had gone to live at the premises of the deceased and was living there at the time of the death of the deceased, the circumstances of which I shall come to in a moment.

17. The second accused, Mr David Bumpstead, is the eldest of the five children of the family. On 1 October 1989 he was almost 31 years of age, and he is now 40 years. He was employed as a labourer/plumber at the time of his arrest and is not married.

20. The third accused, Ms Paula Bumpstead, is the youngest of the five children, together with her twin brother. She was at the time of the offence only 22 years of age and is now 32 years of age. I will come to her circumstances a little later.

23. As I have said, the deceased was born and raised in the Port Melbourne area and was a keen amateur boxer who regularly trained in South Melbourne. In mid-1987, Ms Paula Bumpstead, who was then twenty years of age, left her family home in Torquay and moved to Melbourne to seek employment. She commenced, amongst other jobs, working at the Town Hall Hotel in South Melbourne. Friends introduced her to the deceased and shortly thereafter they commenced a relationship.

26. In January 1988 she and the deceased moved into the house at 128 Station Street, Port Melbourne, on a rental basis. Most unfortunately, the relationship between the deceased and Ms Bumpstead was characterised by jealousy and descended into the infliction of violence upon Ms Bumpstead by the deceased. It is not appropriate to rehearse the history of that matter, suffice it to say that the unhappy indicia of violence are objectively established in this case, Ms Bumpstead appearing at work wearing sunglasses and saying a black eye was from an eye infection, coming to work with cracked ribs, and the deceased indeed was barred by the staff of the hotel despite the fact that he was a teetotaller. Ultimately Ms Bumpstead left the deceased and went to live in a nearby area in September 1989.

29. Mr Stephen McLeod, the first accused, came down from Queensland and commenced to live at the Station Street premises. When Ms Bumpstead left the premises at Station Street, Mr McLeod remained living there with the deceased. The deceased was most distressed that Ms Bumpstead had left him and was anxiously seeking to effect a reconciliation. She had left him previously and gone back to Torquay, but then re-joined him, as is often the characteristic of relationships which combine, unhappily, both love and violence. When she left him on this last occasion, however, she sought to remain away from him, but the deceased who was desperately unhappy sought to find her.

32. On Saturday, 1 October 1989, the day of the deceased's death, the deceased boxed in an exhibition match at the Mordialloc RSL. He was successful and was awarded a trophy. He left the RSL and sought to find Ms Bumpstead in order to show her the trophy that he had won. He said to friends that that was what he wished to do, and he was warned not to do it. He, however, because of his infatuation with Ms Bumpstead persisted in seeking to find her and to show her the trophy. He said to one friend that he had seen her car outside the Fountain Inn Hotel, and ultimately went there and sought to meet her. He caused difficulty at the hotel and was told to leave by the manager. As he left the hotel, he head-butted the glass door of the hotel on the way out.

35. He returned to the premises at Station Street, Port Melbourne. The first accused was angered by the circumstance that the deceased, having caused violence previously to his sister, was still pursuing her. Accordingly, he left the hotel to return to his and the deceased's home in order to confront the deceased.

38. I am satisfied that the first accused left the hotel and went home, both in an angry state and also intending to assault the deceased. The first accused took no weapon and intended to use no weapon. He did not intend to cause death or serious injury to the deceased. However, he intended to assault him. The circumstance that the deceased was a strong, fit, successful amateur boxer involves that it was contemplated by the first accused that it could be a substantial altercation.

41. In his answers to the ultimate police interviews in the matter, Mr McLeod said at question 77 that he walked in and said to Mr Smythe, "You're still beating up my sister", to which Mr Smythe replied, "I'll continue to beat her up as long as I like. You'll never stop me". Then the first accused commenced grappling with the deceased. In answer 136 he said he was in a rage. He described the altercation which followed. He got close in to the deceased. The deceased grabbed him intimately to cause him pain, and the first accused grabbed the deceased by the throat and choked him. That caused the deceased's death. Mr McLeod said to the police that he was going back (answer 141) "to smack him in the face". He had no intention of causing serious injury to the deceased, let alone to kill him, but, tragically, the first accused did cause the death of the deceased. It was, despite the history between the deceased and the third accused, an unjustified attack upon the deceased in his own home.

44. After the first accused realised that he had killed the deceased it was, as he said to the police in question 168, "just panic, panic".

47. Shortly after the death of the deceased, the second accused, Mr David Bumpstead, came to the premises because it had been his intention to take the first accused down to Torquay for a couple of days. The first accused revealed to the second accused the terrible situation and persuaded the second accused to help dispose of the body. In truth, both accused should have gone to the police and revealed what had happened. Unfortunately, they took the wrong course and determined to seek to cover up the crime. No doubt the second accused was moved by loyalty to his brother at the unexpected situation which had arisen.

50. The actions thereafter were wholly unjustified. The second accused suggested that perhaps the body of the deceased be taken to the Loch Ard Gorge near Port Campbell, but that was not pursued. Next door to 128 Station Street a house was about to be erected. There was a joint rear garden. The body of the deceased was taken next door and placed in the hole the accused dug where the footings were to be completed, and dirt was filled back in. Terribly, the body of the deceased remained there thereafter until it was exhumed in the circumstances to which I shall come.

53. The first accused, Mr Stephen McLeod, returned to 128 Station Street the next day and attempted to lay a false trail to indicate that the deceased had voluntarily left the premises and gone somewhere else. The first accused did some damage to the premises in an attempt to indicate that the deceased left in an angry state, removed the deceased's clothing and sought to leave the impression that the deceased had voluntarily left. The actions of the first accused to dispose of the body and lay a false trail were persistent and deliberate and are to be condemned. The origin of those actions was panic and fear and it was unpremeditated, but condemned they must be, nonetheless.

56. It was not for some two days that the third accused, Ms Bumpstead, learned the truth of what had occurred. She was grief-stricken for the deceased, for although there had been violence inflicted upon her by him, there was a genuine relationship between them, and she was most distressed to learn of the terrible events, both of the death and of the consequence of covering up of the body.

59. Friends and family of the deceased, of course, became most worried as to his absence. On 11 October 1989 he was reported to the police as missing. On 17 October he had an appointment to undertake an exam to work on the docks and failed to attend the examination. On 25 October 1989 officers in the Tactical Investigation Group received information that his disappearance was suspicious. On 27 October 1989 the premises at 128 Station Street, Port Melbourne, were forensically examined and a small amount of human blood was located. Three days later the investigation was handed to the Homicide Squad. Further investigations were made. Circulars were distributed, and bulletins likewise.

62. During the years 1992 and 1993 the Homicide Squad continued investigations into the disappearance of the deceased. Unfortunately, those investigations came to an end in the unsatisfactory state of no conclusive answer to the questions posed by the disappearance and by the blood at the premises.

65. The family of the deceased, however, never gave up the investigation of the death of the deceased. Over nearly a decade they exhibited loyalty, determination and devotion to the deceased to seek to ascertain what in truth had happened to him. I commend the family for their actions, their loyalty, their determination and their devotion over those long and lonely years. The family sought to agitate the media in relation to this matter, and ultimately the police investigation was re-activated.

68. In February 1998, after a lengthy gap, the Missing Persons Unit commenced investigations again into the disappearance of the deceased. Substantial investigations were then initiated. Applications were made and granted for listening devices. Telephone intercepts were utilised. Ultimately, as a consequence of information they gathered, all accused were arrested on 6 April 1998. After that lengthy period of hiding the truth of what had occurred in 1989, the accused then fully co-operated with the police. Mr McLeod admitted his part in the killing of the deceased and of the hiding of the body. He fully co-operated with the police and took them back to the relevant premises. Forensic tests utilising imaging were carried out on the next door premises where the body of the deceased had been placed. Ultimately, in November 1998, a court order was obtained and an excavation by tunnelling under 127 Station Street from the side was made. The skeletal remains of the deceased were found in the foundations. The remains of the deceased were forensically examined. No definitive cause of death was established. The excavation was completed by 17 November 1998. Thus it is that the accused come before me.

71. Shortly after the disappearance, and as we now know the death, of the deceased, the accused were interviewed by the police as part of the investigation. On 14 June 1990 the first accused was interviewed by the Geelong C.I.B. Exhibit 3 of the depositions is his signed written statement which was false and misleading. On 17 January 1990 the third accused, Ms Bumpstead, was interviewed by the Homicide Squad and signed a written statement, which is Exhibit 2 of the depositional material. In that statement she untruthfully stated that she saw the deceased on Monday, 2 October 1989, which was the day after he was killed, outside her work premises, and that the deceased had asked her to go with him to Sydney to start afresh. That statement founds Count 3 on the presentment. The third accused, of course, now acknowledges that that was a false statement. However, it played a very small part in this tragic matter and was not the cause of the police investigation being unsuccessful for so long.

74. I have studied more than once the 1998 video-recorded interviews of all the accused, and I am satisfied that each of them were honest and direct in their answers to the police, and I am satisfied that each of them has been and is afflicted by a significant degree of guilt and remorse for their part in what occurred to the deceased.

77. On 6 April 1998, the first accused was charged with murder. On that date the second accused was charged with accessory to murder. Later, on 19 June 1998, that charge was amended to the charge of murder and the second accused remained in custody on that charge until 4 October 1998, which is the pre-sentence detention that I have referred to, and then the charge was amended to accessory to manslaughter and he was granted bail. Thus the second accused has been held in custody for a significant period facing a charge of murder. On 6 April 1998 the third accused was arrested and charged with accessory to murder which on 4 October 1998 was amended to accessory to manslaughter. She has not been in pre-sentence custody.

80. That short history is insufficient to convey the terrible uncertainty over nearly a decade that the actions of the first and the second accused have caused the relatives of the deceased. One needs no imagination to feel the hope and then the fear and then the anguish that the relatives of the deceased have been put through by the accused. I have read the victim impact statements of the family of the deceased. They are moving and impressive documents. The family are true victims of this crime, as is the deceased. I pay tribute to the loyalty and the determination of the family of the deceased over that long and harrowing period.

83. I have had the benefit, on behalf of the first accused, of a most comprehensive plea on his behalf, together with a substantial psychological report by Ms Carla Lechner of 7 June 1999 and oral evidence from her as well. The first accused has only one minor prior conviction of no relevance to this case. As I have said, once ultimately arrested, the first accused co-operated with the police in their investigations. I was impressed by what he said and his demeanour in the video interviews. He has pleaded guilty before me. I am affirmatively satisfied that the first accused has been significantly oppressed and burdened by the guilt of his actions since 1 October 1989 and that he was positively relieved when ultimately arrested by the police. Although he was not so oppressed as to come forward on his own behalf, I am satisfied on the basis of the psychological evidence called before me that the first accused was so oppressed and burdened that he has conducted himself with self-destructive behaviour since October 1989, believing himself to be deserving of punishment. That self-destructive behaviour is, I consider, causally relevant to the drug charges to which I shall come in a few minutes. The accused cannot on sentence take any benefit from the delay from 1989 until now because the delay was of their own making. (Indeed, as I shall come to, I consider that the delay is significantly aggravating). Nonetheless the very real burden of guilt carried by the accused over those years is relevant in sentencing, if that burden was truly felt, which I consider it certainly was.

86. The second accused, Mr David Bumpstead, has also had the benefit of an extensive plea on his behalf, the evidence of a family friend, Mr Flynn, the oral evidence of Mr Tim Watson Munro, psychologist, and his report of 1 June 1999. Mr David Bumpstead has some prior convictions but only one of relevance, which was in 1979, which led to a bond and does not significantly weigh against him at this point of time. I am satisfied that the second accused, Mr David Bumpstead, has felt significantly burdened by his guilt and has suffered significant depression from it, and that is clearly and affirmatively established by his own interview and by the evidence called on his behalf.

89. The third accused, Ms Paula Bumpstead, has no conviction of any sort. A persuasive plea was made on her behalf. A comprehensive psychological report of

Dr Kenneth Byrne of 17 May 1999 was tendered. I am affirmatively satisfied that when she had learned early that week that the deceased had been killed and buried, that she suffered genuine grief, not for herself but for the deceased, that she was appalled and traumatised by what had happened, that she had genuine concern for the deceased and the terrible situation that his body was left. She inherited a situation which was not of her own making. She did not wish to implicate her brothers who had wrongfully acted. As I have said, the misleading statement she made to the police a short time later played no significant part and did not deflect the police investigation which otherwise was unsuccessful for such a long time.

92. In summary, therefore, the unacceptable conduct of the deceased to the third accused in no way justified the deceased being assaulted and killed in his own home nor the later disposal of his body.

95. They are significant matters of seriousness. I regard as a particularly aggravating circumstance that the family of the deceased was left in such a terrible state of uncertainty for nearly a decade. That does no credit -no credit at all - to the first and second accused. On the other hand, the first accused did not intend to kill or seriously injure the deceased. The first accused acted in misplaced loyalty to his sister and there was no expectation or intention by the first accused, when he went home that Sunday night from the hotel, that the deceased would be killed or grievously harmed. The decision to hide the body of the deceased in the circumstances in which it was arose from panic but, as I have previously said, is wholly to be condemned.

98. The first accused has served 488 days of pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991 I declare that period already served under the sentence I impose upon the first accused and I so certify. On the charge of manslaughter of the deceased by the first accused, Mr Stephen McLeod, I sentence Mr McLeod to six years' imprisonment.

101. On the charge of being an accessory after the manslaughter, against the second accused Mr David Bumpstead, I sentence him to a period of two years' imprisonment, 18 months of which are suspended. He, therefore, would be required to serve six months in custody. I declare that pursuant to s.18(4) Sentencing Act 1991 that he has already served 234 days (being pre-sentence detention) under the sentence I now impose, which means that he has already served the six months required to be served in custody. He thus is required to serve 18 months not in custody. He will be brought back before me if he commits another offence punishable by imprisonment in that period. I am satisfied in his case, and in the first accused's case, that they are both excellent persons for rehabilitation, on the material placed before me.

104. The third accused, Ms Paula Bumpstead, as I have already said, played a very minor part. It is not appropriate in her case, given the circumstances that she was appalled when she learned what had happened, was genuinely grief-stricken for the deceased but was, she felt, locked into a situation of loyalty to her brothers, for a sentence of suspended imprisonment to be imposed upon her. Pursuant to s.27(3) Sentencing Act 1991, one does not impose a suspended sentence of imprisonment unless otherwise a sentence of imprisonment is appropriate, and that is not appropriate with her. A community-based order is not appropriate either because hers is not a case for therapeutic assistance. Accordingly, I consider the appropriate course for Ms Bumpstead is to convict her of the crime charged and, pursuant to s.72(1) Sentencing Act 1991, to adjourn, for a period of two years, the charge on her undertaking, which undertaking I shall have my Associate later have her sign, to comply with the law over that two-year period. It is not necessary for Ms Bumpstead to reappear in two years' time. There are no special conditions imposed. If she complies with the law in the meantime, on 6 August 2001 the matter will be finalized as regards her. If she breaches the law she will be required to come back before me for sentence.

107. Finally, I turn to the last four charges on the presentment, which are all drug charges relating to the first accused, Mr Stephen McLeod. Count 4 is a very substantial amount of cannabis which was discovered at the premises of the first accused on 6 April 1997 when the police raided his premises in relation to the death, years before, of the deceased. The circumstances are as follows: that when the police raided the relevant premises, both at Newtown and Belmont where the first accused was living, one being his home and the other being where he had been partly residing, the police found at Belmont a sophisticated hydroponic system in two of the three bedrooms of the premises and cannabis plants growing. There were 151 cannabis plants. There was also 20 kilos, a very substantial amount, of dry cannabis leaf located. There was also a chemistry set found and other items. That is a very substantial offence. It is a commercial quantity, and I impose, in relation to the substantial commercial trafficking of cannabis which is now count 4 on the presentment, a sentence of three years' imprisonment. I direct that two years of that be concurrent with the six years imposed for the manslaughter and one year cumulative upon it, which means that the total effective sentence upon the first accused is seven years' imprisonment. As I have previously said, I have no doubt that the oppression felt by the first accused deriving from the guilt of his actions in 1989 and the subsequent and lengthy non-disclosure of that dark secret, significantly contributed to his deterioration into the drug culture. I take that connection into account in directing that most of the drug sentence is concurrent with the manslaughter sentence.

110. There are three further counts of drugs. I direct that the sentences on those all be concurrent with the sentence on the cannabis trafficking charge. There was a small amount of hashish oil, count 5. I sentence the first accused, Mr McLeod, to six months' imprisonment for trafficking in cannabis oil in a non-commercial quantity, fully concurrent with the sentence for the trafficking in cannabis. On Count 6, a small amount for personal possession of ecstasy tablets, 8 grams, I sentence the first accused to two months' imprisonment wholly concurrent with the sentence on the cannabis trafficking charge Count 4. Finally, the accused Mr McLeod diverted some power from Powercor Australia over four months and was charged with obtaining that property by deception. That amount has been paid. I sentence Mr McLeod to one month's imprisonment on that count, wholly concurrent on the cannabis trafficking charge. So for those four counts of drugs, I impose three years' imprisonment on the commercial quantity of cannabis; all the other sentences for drugs are concurrent with that: and I make two years of that Count 4 sentence concurrent with the manslaughter sentence of six years. That all means that the first accused is sentenced to seven years' imprisonment as a total effective sentence, being six years for the manslaughter and one further year for the drug offences, as I have stated. Pursuant to s.18(4) Sentencing Act 1991 I declare that he has served 488 days of the sentence imposed and so certify. I direct that the first accused serve a minimum of four years' imprisonment before he is eligible for parole. That is a longer term of parole than is normal but I am satisfied that the first accused has excellent prospects for rehabilitation and given the other circumstances that I have stated, I consider a longer parole period than normal is justified and appropriate in his case. Accordingly, he is sentenced to a term of seven years' imprisonment with a minimum term of four years.

113. I will leave the bench and if Ms Bumpstead would sign the order, that is, the undertaking to be of good behaviour, I shall not need to return. Sine die.