DPP v Mitchell [2017] VSC 423

3 Co-offender A pleaded guilty to manslaughter. He was sentenced to a term of 5 years' imprisonment, with a non-parole period of 3 years and 9 months.[2] He received a substantial discount on his sentence by reason that he entered an early plea of guilty, and because he gave a statement to police and gave an undertaking to give evidence against both you and Bennison.[3]

4 Bennison pleaded guilty to murder. He was sentenced to a term of 21 years' imprisonment, with a non-parole period of 18 years.[4]

5 Jason Stone was 27 years old at the time of his death. He was addicted to the drug "ice", and sold and used drugs daily. You had supplied him "ice" in the months leading up to his death. On occasion you did so on credit, which, over time, resulted in money being owed by Jason Stone to you.

6 On the night of 7 November 2014, Bennison and Co-offender A arrived at your house. Co-offender A was known to you as an "ice" user and also someone who assisted you with trafficking "ice". You had never met Bennison before. While at your house, Bennison and Co-offender A smoked "ice", which you supplied.

7 At around 1.00 am, the 3 of you went to the unit of Jason Stone's girlfriend, Sherri Ferrari ("Ferrari"), in Frankston North.

8 Upon arriving at the unit, you and Co-offender A got out of his car and spoke to neighbours for a short while.

9 You then told Co-offender A that Jason Stone had been going around saying that he did not owe you any money. You told Co-offender A that, in fact, Jason Stone did owe you money, and you both discussed getting Jason Stone to the unit to have a talk with him and to "touch him up". You had previously chosen violent means by which to seek to enforce payment for drugs. Prior to the events on 8 November 2014, you had assaulted Jason Stone by reason of his failure to pay.

10 Co-offender A told Bennison what was going on and Bennison agreed to assist. You informed both Co-offender A and Bennison that Jason Stone would be at the unit in about half an hour. Shortly after this, the 3 of you entered the unit.

11 Inside the unit were Ferrari and Trevor Sagor, also known as "TJ".

12 At 1.30 am, TJ received a call from Jason Stone. During that call, Jason Stone said he would be arriving at the unit, but he did not say when.

13 At about 2.30 am, Jason Stone was dropped off a few doors down from the unit. He entered the unit through the front door and walked down the hall to the kitchen. Ferrari went to her bedroom, while TJ remained in the kitchen.

14 Bennison blocked the way and punched Jason Stone in the face. Then the 3 of you, that is you, Bennison and Co-offender A, further assaulted Jason Stone in the kitchen. Although he tried to resist, Jason Stone was overborne. You dragged him into the laundry, closed the laundry door and then continued the assault. Jason Stone was punched and kicked by the 3 of you, including punches to the head. During the assault, his wrists and feet were bound with adhesive tape.

15 By the conduct of the 3 of you, Jason Stone was seriously injured. A sock was put in his mouth and adhesive tape was wrapped around his head, neck and throat to keep the sock in place.

16 After the protracted assault, Jason Stone was carried from the laundry to the front of the unit. Whilst this was occurring, TJ could hear him calling out.

17 Jason Stone was placed in the boot of Co-offender A's car. The boot was then shut, locking him inside. Neighbours could hear moaning and what sounded like kicking from the inside of the boot.

18 Co-offender A and Bennison got into the car. You told them to take Jason Stone for a drive "and get him out of here".[5]

19 Co-offender A then drove his car, with Jason Stone in the boot. They ultimately arrived at Ricketts Point car park, Beaumaris, at 3.12 am.[6] It is not necessary to describe the circumstances in which Jason Stone ultimately died. Suffice to say, at some point he passed away and his body was placed by Co-offender A and Bennison in bushes on the foreshore, with branches off nearby trees used in an attempt to conceal the body.

20 At 10.34 am, Co-offender A sent you text message which read, "See you in a few sort it then". Later that day, Co-offender A returned to Ferrari's unit. You were still there, having remained at the unit to clean up the scene. You spoke with Co-offender A. Sometime after, you arranged with Co-offender A for the disposal of his car, which was sold for $100 in the following week or so.

21 The body of Jason Stone was discovered on 11 November 2014. By that time, it was in a stage of decomposition. Adhesive tape was tightly secured around his left wrist, lower legs and neck and throat with a sock[7] rolled into a ball.

22 An autopsy was conducted. There was evidence of multiple episodes of blunt force trauma and a ligature around the neck, with findings of possible neck compression and traumatic brain injury. There were many possible causes of death. Although the precise cause of death is unknown, Jason Stone did not die of natural causes.

23 Four victim impact statements were tendered, from Jason Stone's mother, Kayleen, his father, Dennis, his sister, Sarah, and from Sylvia Milionis, who describes herself as like a mother to Jason. Each of the statements was also tendered at the plea hearings of Bennison and Co-offender A. At both of those hearings, Sarah read her statement aloud in court.[8] At the plea hearing of Co-offender A, the remaining 3 statements were read out in court by counsel. At the plea hearing of Bennison, Kayleen's statement was again read out by counsel.

24 Each of those victim impact statements has been read again by me for the purposes of this proceeding. As I have previously observed,[9] it is apparent from the statements that Jason is sorely missed. A great deal of love, affection and respect for him has been expressed by each of these victims and they have suffered greatly by reason of Jason's unfortunate fate.

25 Shortly after the further plea hearing held on 19 July 2017,[10] a further victim impact statement was filed on behalf of Kayleen Stone. In her further statement, Kayleen talks of the ongoing impact that Jason's death has had on Dennis' mental and physical health. It is clear from Kayleen's further statement that Jason's death continues to have a profound effect on his family.

26 I have had regard to these impact statements in sentencing you.

27 You are 51 years of age, having been born in Essex, United Kingdom.[11] You are the middle of 5 children. Your entire family migrated to Australia when you were aged 4. Initially you lived in Seaford, and then approximately 2 years later moved to Frankston.

28 You had difficulties at home and school, and you engaged in a pattern of behaviour that led to you being described as the "black sheep of the family".

29 In part, your difficulties apparently arose by reason that you were repeatedly molested by a teacher, who was a friend of the family. You were abused over a number of years by this teacher. On 1 occasion, you were away for the weekend with this person when you called your father crying while asking to be picked up. Your father refused to come, which caused bitterness. From around this time, things started to fall apart. You were not yourself. You ended up leaving home when you were 15. You joined a share house with older males, and engaged in heavy cannabis use, followed by heroin addiction.

30 You had a poor education, and you have poor literacy and numeracy skills. You attended a technical school, but when you were in year 10 you were asked to leave, which you did.

31 Having left school, you gained employment, but only managed to keep the job for 6 weeks due to poor attendance. At this time you were still living with older males, and using heroin. During the ages of 17 to 20 you worked in bricklaying, concreting and landscape gardening.

32 At the age of 21, you moved to Sydney in an attempt to deal with your heroin problem. You worked for St Vincent de Paul, at a place for drug-addicted homeless people. In the 1990s you had various jobs. You worked as a night manager at a home for the elderly for approximately 5 years. You worked as a machine operator in a factory for approximately 3 years, while also doing concreting work.

33 From around 2002 to 2010, you worked as an interstate truck driver. In 2010, you had a serious road accident. You received compensation payments for several years as a result of this accident.

34 You have had a most unfortunate history with respect to substance abuse. From the age of 16 you were a heroin addict for approximately 20 years. From the same age, you also used cannabis regularly until your incarceration on 28 November 2014. You have also engaged in taking other illicit substances including amphetamine, methamphetamine (or "ice") and gamma-hydroxybutyrate (also known as "GHB"). Since your accident in 2010, you have been prescribed panadeine forte, morphine and valium. You have attempted suicide by way of drug overdose on a number of occasions.

35 You were married from 1990 to 2000. At the time you were married, your wife already had 2 daughters. During your marriage you had 3 children, 1 of whom died at the age of 2½ months. Throughout your marriage, you and your wife were heroin addicts.

36 From 2002, when you were away driving trucks for work, another woman, whom you had known for some time, cared for your children. You commenced a relationship with this woman upon the end of your marriage and remained in that relationship from 2000 to 2014. In 2005, you had a child. When you went to prison in 2013,[12] the Department of Health and Human Services intervened and took custody of this child.

37 You have kept in contact with your children, though you can only have limited contact with your youngest child, given the restrictions imposed by the Department.

38 Whilst in custody, you have also received visits and support from a childhood friend, Vicki. Vicki provided a letter to the court supporting your position and stating you were a very loving and caring father to your children and stepchildren.

39 You were interviewed by police on 28 November 2014. You denied any involvement in the assault or death of Jason Stone, and attempted to mislead the police into believing that Co-offender A and Bennison had been solely responsible. You denied having seen or spoken to either Co-offender A or Bennison after they left the unit in the car. You also claimed that your health issues[13] would have prevented you from being involved any assault. You admitted to having previously assaulted Jason Stone a few weeks before,[14] but denied it was related to drugs. You also denied selling drugs.

40 You were originally charged with 1 count of murder. On 9 November 2016, at the time your trial was due to commence, you pleaded guilty to manslaughter. This cannot be described as an early plea of guilty.[15] However, I accept that your plea of guilty has saved the community the expense of a criminal jury trial. I have taken into account the utilitarian value of your plea.[16]

41 I accept that your guilty plea may indicate that you show some remorse for your involvement in the killing of Jason Stone. However, in circumstances where your counsel did not direct me to any other material which is indicative of your remorse, I cannot be satisfied that any limited remorse warrants any discount over and above the discount you are entitled to for the utility of your guilty plea.[17]

42 With reference to R v Verdins,[18] your counsel submitted that your moral culpability should be reduced in light of your intellectual impairment and cognitive limitations.[19] Particular reliance was placed on the neuropsychological report prepared by Jane Lofthouse, who assessed you on 6 January 2017. That report stated:

Mr Mitchell has mild to moderate intellectual impairment that was probably present at the time of his criminal offending. Mr Mitchell experiences some rigid thinking and based on the current test results, it is likely that intellectual impairment has contributed in some way to his poor decision making that resulted in his current charges.

43 A report prepared on 16 June 2015 by the Mobile Forensic Mental Health Service also suggested the presence of "a number of risk factors for acquired brain injury and cognitive problems". With respect to your neuropsychological profile, after recording deficiencies with aspects of your intellectual functioning, the report stated, "[n]onetheless, [you] showed intact skills and relative strengths in auditory immediate attention span, verbal comprehension, and an ability to inhibit automatic responses".

44 Both reports were tendered on your behalf without objection, but the authors were not called to give evidence or cross-examined. Having referred to these reports, your counsel submitted there was a basis, perhaps only to "a slight degree", of assessing your moral culpability more favourably.

45 Having read both reports, it is clear your counsel's tentative approach to the weight to attach to these reports was entirely appropriate. On the evidence, I do not accept that your mild to moderate intellectual impairment was "causally linked" to your involvement in the killing of Jason Stone.[20] I am also not satisfied that it significantly affected your ability to appreciate the wrongfulness of your actions at the time you committed the offence.[21] As such, this evidence does not provide a basis for a reduction with respect to your moral culpability.

46 Although far from the worst example of manslaughter, the killing by you of Jason Stone is a very serious example of that crime. I reject your counsel's submission that this could be described as "mid-range manslaughter offence". It was you who was motivated by a debt owed to you by Jason Stone.[22] It was you who was involved in the suggestion that Jason Stone should be "touched up". And you recruited Co-offender A to assist you with your plan (who in turn got Bennison to assist). Further, you actively participated in the protracted and brutal assault of Jason Stone, leaving him with serious injuries that substantially or significantly contributed to his death. Although you did not accompany your co-offenders to Ricketts Point, you stayed at the scene to remove evidence of the crime, and later were involved in disposing of Co-offender A's car.

47 Such an attack, in all the circumstances, carries with it a high level of moral culpability.[23]

48 With respect to your prospects of rehabilitation, your counsel relied upon a letter in support provided by a chaplain, Steven Beeby.

49 That letter explained that you have used your time on remand to reflect on your own situation and your desires for your future. Mr Beeby explained that over the preceding 18 months he had seen "a true genuine change" in your life, and had come to know you as a "man of good character", with a "sincere heart for true change".[24]

50 This is not, however, your first offence, nor is it your first period of incarceration.

51 Your counsel conceded that your criminal history was "extensive". In addition to various drug trafficking, possession and use offences dating from 1992 to 2013 are offences for theft (in 1984, 1994, 1998, 1999, 2000, 2003, 2005 and 2011), driving-related offences (in 2002, 2005, 2007, 2011 and 2013), and other assorted dishonesty offences.

52 Although it was contended on your behalf that your criminal record does not disclose "a propensity to violence", there are recorded convictions for assault (in 1989 and 1990), recklessly causing injury (in 2002) and offences relating to possession of weapons (in 1984, 2005, 2011 and 2013). I note, in this context, that you have also admitted to assaulting Jason Stone in the weeks before the events in question.[25]

53 On 23 July 2013, you were sentenced in the Frankston Magistrates' Court to 12 months' imprisonment with a non-parole period of 4 months, for drug trafficking, possessing a controlled weapon without excuse and dealing with property suspected of being proceeds of crime.

54 Given these circumstances, it is clear that your prison sentence in 2013, and your long history of interaction with the criminal justice system, have not deterred you from further offending.

55 Accordingly, whilst I have taken into account the letter of support written by Mr Beeby, I do not consider your prospects of rehabilitation to be strong. Further, given your history, I consider that specific deterrence is a factor to be considered, in addition to general deterrence, denunciation, just punishment and protection of the community.

56 A medical report prepared by Clinical Associate Professor John Gall dated 30 June 2017[26] demonstrates that you are currently suffering from a number of conditions, some of which are described as serious or significant.[27] The Associate Professor described your prognosis as "not good", concluding that it is likely that you will develop further complications as a result of your current liver disease and may ultimately require a liver transplant. You have been admitted to hospital on a number of occasions in the past year for treatment of some of your conditions, the most recent admission being on 17 May 2017.[28] Reliance was also placed on the conclusion that you suffer from depression, which requires ongoing management, and the suggestion that you may have an acquired brain injury.[29]

57 Your counsel submitted that your ill health was a mitigating factor to be taken into account. It was submitted that, by reason of your ill health, your imprisonment will be more burdensome than for someone of good health, such that your "sentence will weigh more heavily on [you] than it would on a person in normal health".[30]

58 Counsel for the prosecution agreed with this submission, and that the burden of imprisonment is a matter that should be taken into account in mitigation. However, the Crown submitted that the weight to be given to this factor should be reduced, given the objective gravity of the offence you have committed.[31]

59 As already noted,[32] the killing by you of Jason Stone is a very serious example of the crime of manslaughter, which, in all the circumstances, carries with it a high level of moral culpability. Nonetheless, I am satisfied that you are suffering from a range of medical conditions, some of which are quite serious in nature. Your sentence should reflect, to a degree, that you are likely to experience greater hardship in custody than a healthy person would. I have taken this into account in sentencing you.

60 I have also taken into account the difficulties you have already suffered whilst on remand, which are beyond what would normally be expected. Those difficulties have resulted not only from your ill health, but also as a result of riots that have occurred at the Metropolitan Remand Centre, which caused you to be placed in "lockdown" for a lengthy period of your time on remand. Further, the prospect of deportation, given you are not an Australian citizen, has weighed heavily on you and has been taken into account.[33]

61 It was submitted on your behalf that I should take into account the sentence of Co-offender A in sentencing you. As noted above,[34] Co-offender A, who also pleaded guilty to manslaughter, was sentenced to a term of 5 years' imprisonment, with a non-parole period of 3 years and 9 months. The sentencing judge stated that, but for the guilty plea and the undertaking to give evidence,[35] she would have sentenced Co-offender A to 10 years' imprisonment with a non-parole period of 7 years and 6 months.[36]

62 There should be consistency of approach in the sentencing of co-offenders who have committed the same offence.[37] Even if things are not entirely equal between the offenders' circumstances, the sentences of co-offenders must not be so disparate as to give rise to a "justifiable grievance", such that it would appear that justice has not been done.[38] However, this principle is only applicable to the extent that the co-offenders' background, culpability and criminal history are comparable.[39]

63 Although I have taken into account the sentence that Co-offender A received, there are a number of reasons why the parity principle is of limited relevance. First, the circumstances of your offending are notably different from the circumstances of Co-offender A's offending. Jason Stone was still alive at the time he was placed in the boot of Co-offender A's car and driven away. It was at this point that your involvement in the brutal attack on Jason Stone ended. Although there is some uncertainty surrounding the circumstances in which Jason Stone ultimately died, it is clear that Co-offender A and Bennison participated in further acts in relation to Jason Stone's death after leaving you behind at the unit. Obviously, this is a factor in your favour.

64 Secondly, Co-offender A entered a guilty plea shortly after his committal hearing. As already noted,[40] you did not enter your guilty plea until the day your trial was due to commence.

65 Thirdly, although I accept that it does not expose a "history of violent offending",[41] your criminal record is extensive, with prior offences dating from 1984 to 2013.[42] In contrast, Co-offender A's criminal antecedents did not involve an extensive history of criminal activity.[43]

66 Finally, as is apparent, Co-offender A received a substantial discount on his sentence. The discount received was not only by reason of his early plea of guilty, but also because of his statement given to police, which contained various admissions and was "of considerable value to the prosecution",[44] and his undertaking to give evidence against both you and Bennison.[45] Your plea of guilty carries with it considerations of a different nature, as you did not make any comparable statements to police, or give any undertaking to give evidence.[46] Further, Co-offender A's sentencing judge did not state what proportion of the discount was attributable to each of those factors, other than to say that the discount for providing a statement and undertaking to give evidence was "significant".[47]

67 It is in these circumstances that the parity principle is only of limited application in determining the duration of your sentence.

68 Taking each of the matters referred to above into account, and balancing the factors as best as I am able, on the count of manslaughter you are convicted and sentenced to be imprisoned for a period of 10 years. I fix a minimum non-parole period of 7 years and 6 months.

69 Section 6AAA of the Sentencing Act 1991 (Vic) requires me to state the sentence I would have given you if you had not pleaded guilty. But for your plea of guilty, I would have imposed a sentence of 12 years with a non-parole period of 10 years.

70 Finally, pursuant to s 18(4) of the Sentencing Act, I declare the total period of pre-sentence detention to be reckoned as a period of imprisonment already served is 972 days up to, but not including, this day. I will cause that declaration to be noted on the court records.

[1] The non-disclosure of the identity of the other assailant is the subject of an order made in this proceeding on 12 April 2016.

[2] R v [Co-offender A] [2016] VSC 168R, [75]-[76] (Emerton J).

[3] Ibid, [56]-[66] (Emerton J). See also par 66 below.

[4] Director of Public Prosecutions v Bennison [2016] VSC 686, [43].

[5] This account of what you said is in contrast to other accounts given: see Director of Public Prosecutions v Bennison [2016] VSC 686, [10] and R v [Co-offender A] [2016] VSC 168R, [13] (Emerton J). The facts as set out above (upon which the court is moved) were the subject of agreement between the prosecution and your counsel as part of the plea bargain.

[6] Their arrival was captured on closed circuit television footage.

[7] Or pair of socks: cf prosecution opening [2], [6].

[8] Director of Public Prosecutions v Bennison [2016] VSC 686, [40] and R v [Co-offender A] [2016] VSC 168R, [53] (Emerton J).

[9] Director of Public Prosecutions v Bennison [2016] VSC 686, [40].

[10] There was the need for a further hearing in light of the previous unavailability of expert medical evidence concerning your medical condition and prognosis.

[11] You were born on 11 November 1965 in Billericay, Essex.

[12] See par 53 below.

[13] As to which, see par 56 below.

[14] See par 9 above.

[15] In reaching this conclusion, I have taken into account the fact that your trial was originally scheduled to commence in April 2016. Your trial was delayed due to your ill health, which was not in your control. Nothing was put before the court to suggest that your ill health during this time, or between April 2016 and November 2016, affected your ability to enter a guilty plea.

[16] See Reid (A pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 312 [111]-[113] (Priest JA, with whom Maxwell P and Whelan JA agreed).

[17] Phillips v The Queen (2012) 37 VR 594, 621-622 [99]-[102] (Harper JA).

[18] [2007] VSCA 102; (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA).

[19] Ibid, 276 [32.1] (Maxwell P, Buchanan and Vincent JJA). In making submissions with respect to your moral culpability, your counsel did not seek to rely on your history of drug abuse.

[20] Director of Public Prosecutions v O'Neill (2015) 47 VR 395, 414-415 [74] (Warren CJ, Redlich and Kaye JJA).

[22] Your counsel suggested there may have been other reasons, but accepted this was not relevant to sentencing.

[23] Cf R v Jagroop [2009] VSCA 46; (2009) 22 VR 80, 90-91 [62]-[67] (Weinberg JA, with whom Williams AJA agreed).

[24] For completeness, the chaplain also described you as "an intelligent humble man". When this was raised with your counsel, he stated this was no more than an impression, that people in your position have an ability to mask your deficiencies and that conduct, such as "thoughtful pauses", might be misinterpreted. I accept this submission.

[25] See par 9 above. As the circumstances of this assault are not before the court, this matter will not be considered in determining the length of the sentence.

[26] This report relied on previous medical reports, including reports dated 21 June 2016 and 16 June 2015, both of which were tendered.

[27] The report states that you are currently suffering from cirrhosis, hepatitis C (in remission), portal hypertension, opiate addiction, asthma, reflux, chronic obstructive pulmonary/airways disease (as a smoker), acquired brain injury (the extent to which is uncertain), depression (which was currently being treated and is expected to resolve), allergic rhinitis, methicillin-resistant staphylococcus aureus right lower leg/ankle chronic ulcer (for approximately 18 months) and a prostate issue (which appears to be benign prostatic hyperplasia).

[28] You were discharged on 30 May 2017.

[29] The cause and extent of the acquired brain injury referred to by Associate Professor Gall was not clear: see fn 27. The Associate Professor did not assess you in person; he relied on medical files and reports of other practitioners in preparing his report.

[30] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32.5] (Maxwell P, Buchanan and Vincent JJA); R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 267 [30]-[31] (Callaway JA, with whom Ormiston and Charles JJA agreed). For completeness, your counsel abandoned the submission that I should also take into account the fact your imprisonment may have an adverse effect on your ill-health: see the second way in which ill health may be a mitigating factor identified by King CJ in R v Smith (1987) 44 SASR 587, 589.4, referred to in R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 266-267 [29].

[31] RSJ v The Queen [2012] VSCA 148, [3] (Redlich JA).

[32] See par 46 above.

[33] See Schneider v The Queen [2016] VSCA 76, [24]-[26] (Priest JA, with whom Coghlan and Kyrou JJA agreed).

[34] See par 3 above.

[35] See par 66 below.

[36] R v [Co-offender A] [2016] VSC 168R, [76] (Emerton J).

[37] Cf Sentencing Act 1991 (Vic), s 1(a).

[38] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610.2 (Gibbs CJ), referred to with approval in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ).

[39] R v Izzard [2003] VSCA 152; (2003) 7 VR 480, 483 [12] (Callaway JA, with whom Winneke P and Vincent JA agreed); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ), 501 [117] (Bell J, dissenting).

[40] See par 40 above.

[41] But that history is not far from unblemished in this regard: see par 52 above.

[42] See par 51 above.

[43] R v [Co-offender A] [2016] VSC 168R, [49] (Emerton J).

[44] R v [Co-offender A] [2016] VSC 168R, [59].

[45] R v [Co-offender A] [2016] VSC 168R, [3], [56]-[66].

[46] Of course, you were not obliged to do so.

[47] R v [Co-offender A] [2016] VSC 168R, [66].