DPP v Richardson [2007] VSC 221

2 Smith is alleged to have murdered Brian Raymond Young on 17 September 2005 in Smith's flat in South Yarra. In essence, you have admitted assisting Smith to avoid apprehension and prosecution by helping him to dispose of the body and to clean the flat. You and Smith had been in a relationship from about the beginning of 2005 and you had lived with Smith in the flat since August 2005. Smith has pleaded not guilty to murder and is awaiting trial.

3 The victim, Brian Young, was a 36 year old man who at the time of his death lived at home with his parents in Rosebud. He had previously lived in the South Yarra/Prahran area and from time to time he continued to socialise with friends he had met while living in that area. On Saturday 17 September 2005 he was visiting the area. It seems that neither you nor Smith had ever met Brian Young before, but somehow the three of you met up on that day. You must have given him your mobile telephone number at some stage, because he called you on it at 5.39 pm. Later on, at 6.34 pm, he called his mother to say that he was with you and Smith. That was the last known contact that the victim had with anyone prior to his death.

4 The precise movements, after that phone call, of the people involved are not known. However, shortly after the phone call Brian Young and Smith went to Smith's flat in South Yarra. You, however, met another associate, Robert Saunders, at about 7.00 pm. You and Saunders went to the city by tram and from there to Saunders' flat in Flemington. Along the way the two of you bought heroin and used it at Saunders' flat. In the meantime Smith used the landline telephone at his flat to call you on four occasions between 7.13 pm and 7.57 pm that night. At 8.02 pm Smith telephoned his mother in Ballarat and told her that he needed her car urgently because he had found some employment. He in fact needed the car to dispose of the victim's body. It appears that the victim was murdered between 6.34pm when he spoke to his mother on the phone and 8.02pm when Smith called his mother to arrange to borrow her car. The forensic evidence indicates (and I am satisfied beyond reasonable doubt) that Mr Young died as a result of heavy blows to the side of his head and to his jaw, consistent with being struck with a heavy blunt object, and that his left ear had been severed either before or after death.

5 The following morning you and Smith caught a train to Ballarat to see Smith's mother. The two of you borrowed her Magna sedan. Smith also took a shovel from the shed. You both then drove back to Saunders' flat in Flemington and arranged to stay there for three nights. The next morning (Monday 18 September 2005) you, Smith and Saunders drove to Smith's flat and placed the victim's body into a suitcase and Smith and Saunders carried the suitcase down three flights of stairs and placed it in the boot of the car. The three of you then returned to Saunders's flat where you all spent the night, leaving the body in the boot of the car. The following morning the three of you drove to Little River. A shallow grave was dug in the You Yangs Regional Park and the suitcase containing the body was placed in the grave. The grave was covered with soil, sticks and branches. The three of you then returned to Melbourne.

6 On Saturday 24 September 2005 you and Smith attended a Safeway supermarket and hired a heavy duty carpet cleaning machine. Police later found that the carpet in the lounge room had been pulled up and discarded. It has never been recovered.

7 Further police investigations traced the deceased's mobile telephone to Saunders. On 9 November 2005 Saunders was arrested and interviewed. At 6.08 pm that evening Saunders rang you and told you that he had been interviewed regarding the deceased's mobile phone. You told Saunders that you did not know what he was taking about and hung up. Shortly afterwards, Saunders called Smith and Smith told him that he did not know anything about the mobile phone and that Saunders should say nothing to the police. The same evening, you and Smith decided to pack your bags and leave the flat. At 6.23 pm the two of you were observed leaving with a number of bags, and you were both arrested shortly thereafter. You made a no comment interview to police.

8 I appreciate fully that you have not been charged with Brian Young's murder and that you are not to be sentenced as though you were in any way responsible for his death. Rather, your offence consists of doing acts with the purpose of impeding the apprehension, prosecution, conviction or punishment of Benjamin Ross Smith, knowing or believing that Smith had murdered Brian Young.

9 The particular acts in question are the removal and hiding of the body and the steps taken to clean the flat and to remove the carpet. I notice that the hiring of the heavy duty cleaning machine occurred on Saturday 24 September 2005, which is outside the period referred to in the presentment, namely 17-22 September 2005. The removal of the carpet presumably occurred outside that period also. However, your counsel has taken no point about this. Indeed he specifically referred to your accompanying Smith when he hired the cleaner as being strongly suggestive of your being with him when activity was being undertaken that would relate to getting rid of evidence.[1] I will proceed accordingly. Subject to any submissions to the contrary, I would be inclined to permit any necessary amendment of the presentment.

10 It was conceded by your counsel, Mr Holding, at the outset of the plea that this is a tragic case, and a tragic case for the family of the deceased. Brian Young lost his life at the young age of 36. Mr Holding rightly acknowledged that it was understandable that Brian Young's family would attend the proceedings, as they have done, both out of respect for the loved one they have lost and also in the hope of gaining some insight into what must appear to be a "completely senseless act of violence".

11 Mr Holding said that, unfortunately, he was not going to be able to shed much light on the reason why the tragic incident happened. He explained this by saying that, at the time, you had a significant drug problem and a significant history of psychiatric problems as a result of poly substance abuse. He said that you were a person of some vulnerability, without a strong character, and a very confused person. He said that your memory was very episodic and that you could only remember little bits of the days in which the offending occurred. Your instructions to Mr Holding were that you only met the deceased on that night; that he appeared to be a nice person who was interested in partying, and also in drug-taking; that it was a complete mystery to you why Smith killed Mr Young; and that you were not aware of any sensible reason as to why that should have taken place.

12 Mr Holding immediately went on to concede that your actions in the days which followed involving assistance in concealing such a serious crime could really only be met by a period of imprisonment. The only question was how long. Mr Holding put to me that the period you had already served, some 17 months, was within, or almost within, the range of an appropriate minimum term (as distinct from an appropriate head sentence). He also submitted that a longer parole period than normal might be appropriate, on the material.

13 Mr Holding anticipated, correctly as it turned out, that counsel for the Crown would not strongly oppose a minimum term of the kind for which he was asking. Indeed, Mr Brown expressly conceded that such a minimum term would be within the appropriate range.[2]

14 The parties' positions are important, but I must still give careful consideration to the material before me in accordance with the principles set out in the Sentencing Act 1991.

15 Sentences are to be imposed for one or more of the purposes specified in s 5(1) of the Sentencing Act 1991 and for no other purpose. Insofar as they may be applicable, those purposes are, in summary terms, just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and community protection. In determining a sentence I must have regard to each of the matters specified in s 5(2) of that Act. Those matters are the maximum penalty prescribed for the offence, current sentencing practices, the nature and gravity of the offence, the offender's culpability and degree of responsibility, the impact of the offence on any victim of the offence, the personal circumstances of any victim, any injury, loss or damage resulting directly from the offence, whether the offender pleaded guilty and at what stage, the offender's previous character,[3] the presence of any aggravating or mitigating factors and any other relevant circumstances. In this Court, in general, the preferred approach is one of "instinctive synthesis" rather than a sequential, staged or mathematical approach.[4]

16 The maximum penalty for a person convicted of being an accessory after the fact to murder is imprisonment for 20 years.[5] Plainly, Parliament regards such an offence as a very serious one.[6] On the other hand, as Coldrey J said in R v Dowdy,[7] the sentence which the offence attracts will necessarily vary according to the circumstances surrounding its commission and factors personal to the offender. In R v Kitchin[8] it was held that in considering the gravity of an offence against s.325(1) the judge may have regard to the particular circumstances of the principal offence and may say, for example, that, other things being equal, assisting an offender is a more serious offence in a bad case of murder than in a not so bad case of murder.

17 Your plea proceeds on the basis that you assisted Smith despite knowing or believing that he was guilty of the intentional killing, without lawful excuse, of Brian Young (i.e. murder). Your own counsel has described the murder as having the appearance of a completely senseless act of violence. You were in a relationship with Smith and you were in regular telephone contact with him during the very hour in which the murder took place. You have remained in contact with Smith since your arrest. Notwithstanding your connection with Smith, you claim that you do not know why Smith killed Brian Young. The Crown has not challenged that assertion. The trial of Smith has not yet occurred. There is material to suggest that he may have had a psychological impairment. In the circumstances I cannot be satisfied beyond reasonable doubt that the particular circumstances of the principal offence were such as to make the abovementioned holding in R v Kitchin applicable to you.[9]

18 However, your own conduct involved gross disrespect to the body of Brian Young and contributed to a period of over 7 weeks during which his family and friends were unaware of his fate. You did it for the purpose of impeding police investigations into the murder and the due administration of justice. Your behaviour was seriously wrong.

19 Three victim impact statements from Brian Young's family were filed and tendered without objection. I take them into account only insofar as they relate to the impact of your offence, as distinct from the impact of the murder itself, and I observe the limitations on the use of victim impact statements referred to in R v Swift.[10] Brian's sister Leanne is a nurse. She wrote movingly of her anguish concerning what Brian went through, of the stark absence of any explanation for what happened and of her overwhelming feelings of stress, anxiety, sadness and loss. She was so badly affected that for significant periods she could not go to work. She also refers to the dramatic impact that Brian's disappearance and death has had on their parents. Her brother David also refers to this, saying how hard it is to witness the deterioration of his parents' health and their suffering. In addition David refers not only to his own deep pain but also to the trauma and anxiety felt by his 5 year old son who was close to Brian. Brian's mother, Marie, says in her own statement that she suffered a complete mental and physical breakdown as a result of her son's disappearance and murder. The victim impact statements of Marie Young and David Young were read out in open court at their request.[11]

20 I turn to the matters put in mitigation. Your counsel made an eloquent plea on your behalf. He summarised the matters to be relied on in this way: your plea of guilty; what he called your tragic personal history; the combined impact of your personal history and your relationship with Smith on your willingness to assist Smith; the lack of indications of violence in your prior convictions; the unlikelihood of any recurrence of the offence; and, most of all, your progress in custody in tackling your personal problems. Mr Holding elaborated on each of these matters. In substance, I accept that the matters relied on by Mr Holding are relevant and cogent.

21 As to your plea of guilty, I accept that it has utilitarian value in that a trial of the charge against you would have occupied some time in the Supreme Court additional to the time that would have been involved in the trial of the two co-accused, Smith and Saunders, both of whom continue to plead not guilty, and in that potential witnesses and Brian Young's family and friends have been spared the rigours and uncertainties of a trial of the charge against you. I accept also that the Crown case against you was mainly circumstantial and that there was a lack of direct or specific admissible evidence against you. You claim that you were so affected by drugs at the time of the car journey to the You Yangs that you slept through parts of it. However that may be, I accept that the extent of your actual usefulness to Smith may have been limited.

22 Your plea of guilty was not an early plea. The decision was made in February of this year and your plea was entered in March. However, I accept that your plea flowed from an extended period of reflection in custody whereby your thoughts became clearer and more logical and you decided that it was the right thing to do. I accept that your plea represents a start towards taking responsibility for your actions.

23 According to your counsel, you have difficulty explaining why you did what you did. In the back of your mind was a feeling that Smith was a very violent person who might do the same to you as he did to Brian Young. However, you do not say that Smith actually threatened you. Indeed you say that you felt a sense of obligation to Smith because he was standing by you. You had been in a refuge; he provided you with accommodation; he became your companion; you had idealised notions of marrying him. You do remember being in the You Yangs and being asked to help and helping, namely by carrying a spade at times and by assisting the other two in carrying the suitcase containing the body. You say that you came to a point where you could not go through a trial knowing those things, and you felt that the proper thing to do was to plead guilty. In that regard I accept that your plea indicates a degree of remorse.

24 I turn to your personal history. It is difficult to obtain a clear picture of your life to date because, for one reason or another, you are not a reliable historian. Your counsel repeatedly mentioned that there were gaps in your instructions to him.

25 You were born on 10 April 1976 in Box Hill. So you are now 31 years of age. You have two younger brothers and a younger sister. Material about your personal history is included in a detailed psychiatric report dated 20 April 2006 from Dr Danny Sullivan tendered by your counsel. That report was prepared for the purposes of another matter to which I will come. Dr Sullivan interviewed you for it on 8 April 2006 while you were in custody. You told him, among other things, that you grew up mainly in the eastern suburbs of Melbourne and for a short time in Queensland; that your father was a panel beater; that your parents and your maternal grandfather drank alcohol excessively; that you attended five different primary schools and six different secondary schools because your parents moved house frequently; that there was no emotional, physical or sexual abuse while you were growing up; that although you had previously done well academically you stopped trying in Year 9 and began to get into trouble and left school three quarters of the way through Year 10; and that you left home mainly because of conflicts with your parents in this regard together with the strains of living in a household of 10 people (which included, I gather, your aunt and her family) and helping to look after your grandfather in his terminal illness. Dr Sullivan referred to this as an "unremarkable upbringing".

26 You have given a somewhat different version of your early life to your counsel. You told him that your father had had an industrial accident when you were eight, so that he had chronic back pain; that you were not sure whether he was able to keep employment; and that you recall regular instances of your mother's head being crashed into a wall by your father.

27 You had another interview with Dr Sullivan on 14 April 2007 for the purposes of the present matter. You told him that late last year you had experienced some mental symptoms which you thought might be due to the strain of establishing contact with your aunt once more (presumably the aunt to whom I have already referred). You told him that you had not seen your aunt for eight years and that your contact with her reminded you of being sexually abused. On the plea, your counsel did not suggest that you had been sexually abused before you left home or in any situation with which your aunt was connected. He did say that your aunt, who lives in Perth, was the only family member who was offering you any support at all at present.

28 Dr Sullivan's original report records certain difficulties that he himself experienced in discerning things about you. It also notes that your apparent psychotic symptoms had been thought at St Vincent's Hospital and at The Alfred Hospital to possibly represent malingering by you in order to avoid criminal charges. Dr Sullivan said he was uncertain whether this was true. He said that on balance your psychotic symptoms seemed genuine.

29 These conflicts in the material are such that I am not satisfied on the balance of probabilities that you experienced an early upbringing that was any worse than what you originally described to Dr Sullivan.

30 On the other hand, there seems to be no doubt that you have lived a desperately dysfunctional life, indeed a tragic life, since you first left home at the age of 15 or 16. I accept the following matters put by Mr Holding, much of which was supported by Dr Sullivan's reports. Upon leaving home you began living on the streets. You met older men who would ask you for sexual favours. You came into contact with drugs. At the age of 16 you were injecting amphetamines and using cannabis and you were becoming reliant on others to survive day by day. You fell pregnant at the age of 17 to a man called Anthony Nelson who was 28 years of age at that time. Your first child, a daughter, was born on 2 March 1994, one month before you turned 18. You stayed with Nelson during the first four months of the pregnancy, but he was a drug user with some hallmarks of violence and unsupportive. Your parents allowed you to return home but only on condition that you left again before the baby was born. You did that. You began living with one of your brothers for about three months but you started to use drugs again. Your brother was also a drug user and you fell behind in the rent. You went to some other unidentified location. You became pregnant again, this time to a different father. In June 1995, your daughter's father, Mr Nelson, died of an overdose. This distressed you. Although Nelson had been troublesome, you had had hopes that he would provide care for your daughter. One month later your second child, a boy, was born. You remained in a relationship with the boy's father for about four years, but it was not a good relationship. There were concerns about the rough way he treated your daughter. There were frequent break-ups, reunions, moving, drug use and DHS involvement. He assaulted you in 1999. Your four year old son rang the police on that occasion. The police insisted that you take out an intervention order. You split up in that year. The boy's father found a new partner. He wanted custody of both of your children. In mid-2000 he came and took both of them away. You went to see a solicitor with a view to bringing Family Court proceedings. But you fell in a heap. You began drinking heavily. You were taking prescription medication. You failed to turn up to the Family Court hearing. You have not seen either of your children since. In 2004 you did go to see a solicitor again to begin the process of obtaining a location order but you did not have the stability at that time to go through with it. Since being in custody you have recommenced that process. You want to enable your children to have a choice to contact you if they wish.

31 Your prior convictions do not begin until October 2000 when you were 24, shortly after you lost your children. They consist of burglaries, obtaining property by deception, driving offences, possession of a regulated weapon, thefts from motor vehicles and failures to answer bail. Your counsel explained the weapon charge as relating to your carrying a kitchen knife when you were feeling paranoid on the streets. Otherwise your priors are not associated with violence against the person. I accept that your prior offending was associated with your drug use and trying to obtain money to buy drugs.

32 In 2004 you were charged with arson in circumstances where you rolled up newspaper under your bed and mattress and in the internal wall of your bedroom at the Toorak House Boarding Home and placed a chest of drawers over the door and lit the newspapers. This jeopardized your own life and the lives of others. You caused several thousand dollars worth of damage. You were psychiatrically assessed after the incident by Dr Sullivan, whose report dated 20 April 2006 (which I have already mentioned) diagnosed you with poly-substance dependence and recurrent depressive disorder. You gave bizarre, conflicting explanations for your conduct. According to Dr Sullivan, the most likely diagnosis in relation to the arson episode was of cannabis-induced psychotic disorder or substance withdrawal-induced psychotic disorder as the offence occurred soon after abrupt cessation of methadone and with ongoing alcohol and cannabis use. Presumably Dr Sullivan's opinion was accepted by the sentencing Court and you were regarded as not being an appropriate vehicle for general or specific deterrence to any large extent because you were given[12] a sentence of only 12 months imprisonment, wholly suspended.

33 After the arson incident you were released from hospital and for the following six months you lived a day to day existence on the streets. You were on anti-psychotic medication, methadone and valium. You then met Smith whom you described as being supportive of you. As already indicated, you lived with Smith in the flat in South Yarra from August 2005 until you were arrested in November 2005. As mentioned, it appears that Smith had a psychological impairment as well.

34 You have been on a disability support pension for depression for most of your adult life. At times you have engaged in street prostitution to finance your substance abuse. Otherwise you have never really worked. You were unemployed at the time of the offence.

35 You have tackled both your drug and psychiatric problems whilst in custody. Your period of incarceration to date has been used productively and has been the longest period of stability and without drug use you have had in your life since about the age of 16. Your achievements whilst in prison are to your credit and I take them into account in your favour. You have certificates indicating training in carpentry, principles for the building industry, hand tools, transport and distribution, warehousing and storage, skin care and makeup. You have completed various drug and alcohol programs and are employed within the industry section of the Dame Phyllis Frost Centre. Your employment at the Dame Phyllis Frost Centre since November 2005, in particular, has given you a daily routine. You are doing courses that you hope will assist you in getting a job with a forklift. You are playing tennis and your self-esteem has improved. You are no longer on a methadone program although you still receive anti-psychotic and anti-depressant medication as referred to in Dr Sullivan's supplementary report dated 16 April 2007. The supplementary report indicates that you have had significant problems with poly-substance dependency involving alcohol, cannabis, benzodiazepines and opiates. You are currently abstinent in your controlled environment.

36 Dr Sullivan refers to your reporting of vague and intermittent psychotic symptoms while in custody, including persecutory thinking, thought interference and auditory hallucinations. He opines that the severity, nature and frequency of your psychotic symptoms are not sufficient for you to be described as having a psychotic illness. Rather, your symptoms (as reported to Dr Sullivan) would be described as part of a schizophreniform psychosis, which reflects brief psychotic symptoms insufficient in number or severity of disruption of functioning to be accorded a diagnosis of paranoid schizophrenia. Your diagnosis is included in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorder. Alternatively, according to Dr Sullivan, your symptoms are secondary to a mood disturbance previously diagnosed as recurrent depressive disorder.

37 Your counsel relied on your psychological problems as supporting his description of you as a vulnerable, confused, dependent person without a strong will. The expert evidence from Dr Sullivan is not in terms directed to your actions in assisting Smith nor to the particular period in your life in which that offending occurred. However I accept that it supports your counsel's general description of you and I accept, on the balance of probabilities, that you were suffering from a relevant impairment of your mental functioning, probably either a schizophreniform psychosis or a recurrent depressive disorder, at the time of the offending. As was pointed out recently by the Court of Appeal in R v Verdins[13], a mental disorder, abnormality or impairment may be relevant to sentencing even where it does not constitute a "serious psychiatric illness", contrary to what some medical and legal practitioners had previously supposed.[14] Further, the sentencing court does not have to concern itself with how the particular condition is to be classified or labelled.[15] Rather, what matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[16] An offender's mental impairment may reduce, or even eliminate, the significance of general deterrence as a sentencing consideration.[17] It may reduce moral culpability, and thereby affect the punishment that is just in all the circumstances and make denunciation less likely to be a relevant sentencing objective.[18] It may require that general deterrence or specific deterrence, or both, be moderated or eliminated.[19]

38 In addition, where a mental impairment exists at the time of sentencing, it may mean that a given sentence will weigh more heavily on the offender, or there may be a risk that imprisonment would have a significant adverse effect on the offender's mental health.[20] These latter points are not relied on in your case. Indeed, on the contrary, your counsel submitted that your mental functioning had been substantially improved as a result of your experiences in custody.

39 In general, the mere fact that an offender was affected by drugs or alcohol at the time of an offence is not, in itself, a mitigating factor.[21] However your situation goes well beyond such a case. Your poly substance abuse over the years no doubt compounded your mental problems, but I accept that, at the time of the offending, you had a long standing, underlying psychotic or depressive disorder which, however classified, impaired your ability to exercise appropriate judgment, to make calm and rational choices, to think clearly and to appreciate the wrongfulness of your conduct and I accept that it contributed (causally) to the commission of your offence.[22]

40 In R v Howell[23], Nettle JA (with whom Ashley and Redlich JJA agreed) treated as significant that at the time of the (sexual) offences in question the offender was suffering from a recognised depressive episode which placed her in "an emotionally fragile state" and that in the opinion of a psychiatrist[24], her relationship with the complainant was thus properly to be seen as one involving "a vulnerable woman whose personality structure, adolescent experience, relationship history and life at the time of the offences had coalesced to provide fertile soil for the occurrence of [her aberrant behaviour]".[25] His Honour took the view that those facts were to be regarded as reflecting upon, and significantly reducing, the moral culpability of the appellant's offending.[26] I take a corresponding view in the present case. Although Dr Sullivan did not specifically comment on your relationship with Smith, his opinion about your mental condition generally, together with the undisputed history of your relationships and of your life as a whole after you left home, indicate that you were probably in a fragile state, vulnerable, confused and highly dependent on Smith at the time of, and in connection with, your offending.[27] I consider that these matters warrant substantial moderation in relation to denunciation, general deterrence and specific deterrence.

41 In passing, I note that, had you been married to Smith, you probably could not have been treated as an accessory to the murder at all: see Crimes Act 1958, s 358.

42 The mention of Smith brings me back to the question of your prospects of rehabilitation. On the plea on 27 April 2007, your counsel relied heavily on signs that you were beginning to recognise that you had made bad decisions in the past, including in your choice of relationships with men. On the basis of your experience and achievements while in custody, Mr Holding said that you were hopeful of a rebirth. Obviously enough, to continue to have a relationship with a person capable of doing what Smith did to Brian Young would be unpromising in that regard. Mr Holding told me that you saw your relationship with Smith as finished. He acknowledged that you had had two contact visits with him while in custody, the last in February 2007. He said that you had been confused about your affections for him, and that reflecting on this had been a slow process, albeit aided by counselling. Counselling had pointed out to you that violence is not normal. Smith had tried to persuade you to plead guilty to this offence. You found this attitude on his part unsupportive and this is when "the crunch probably came". You saw that you needed to understand that Smith was not a person who was going to assist you in getting a new life.

43 However, quite recently, your plea was listed for further hearing at the instance of the Crown. At the further hearing on 13 June 2007, Mr Brown for the Crown told me that information had come to hand casting doubt on the proposition that you saw your relationship with Smith as finished. Evidence was adduced, without objection, about three telephone calls which Smith had made to you, each of which had been recorded. The first was on 25 March 2007, about a month before the initial plea hearing. The last two were in May after the plea hearing. The parts of the conversations adduced in evidence were as follows:**

SMITH to RICHARDSON: 'You obviously didn't tell him (solicitor) the truth of everything's that's happened'.

RICHARDSON to SMITH: 'No, I didn't say anything about what's happened'.

RICHARDSON to SMITH: 'I love you and I'll stick by you no matter what happens and I hope you'll do the same for me'.

RICHARDSON to SMITH: 'I really want to spend the rest of my life with you. I really do'.

RICHARDSON to SMITH: 'I love you, I miss you, can't wait to fuck you'."

**44 Mr Brown told me that it was not submitted that this evidence would necessarily result in a higher sentence but he said that it would affect the sentencing reasons and might affect my conclusions in relation to things like remorse and rehabilitation.

45 Mr Holding assured me, and I completely accept, that he did not intentionally mislead me on the earlier occasion. He confirmed that he had had express instructions to put to me that your relationship with Smith was over. The explanation given for the situation was this. About a week before the plea, Smith's mother had visited you to convey a message that if you pleaded guilty that was the end of the relationship as far as Smith was concerned. You believed this. On the day of the plea, you remained of the belief that the relationship was over and that Smith would not contact you any more. However, since the plea, Smith has been expressing affection for you and trying to get you to change your plea. You now find that you are not as strong as you thought you were. You are confused about the relationship. You have been having counselling. You have been discussing with the counsellor whether you should continue to take calls from Smith. You find yourself vulnerable. You have been through a depressive episode when you have heard voices again. You are not getting other contacts. Your aunt in Western Australia is undergoing difficulties of her own and is not speaking to you at present.

46 Mr Holding explained, and I accept, that the first phone call was not inconsistent with the plea because it related to the situation before Mr Holding was briefed in this matter. As to the other calls, Mr Holding said that while you know in your head that it would be better not to have a relationship like this, you feel vulnerable when Smith rings and you feel that he is the only person standing by you. You have been told by your counsel that Smith may find himself in prison for a long time. Despite this, you are unclear about whether you would go to see him after you are released.

47 In the end, Mr Holding submitted that these matters actually reinforced the point made in mitigation that you were a vulnerable person with a misguided loyalty to Smith. I accept that. However these matters do tend against you to a certain extent in relation to the issues of remorse and rehabilitation. I accept that it is unlikely that you will ever again take steps to cover up a murder, but your vulnerability and your background are such that it is difficult to be confident that you will not re-offend at all in future. Nevertheless, I remain of the view that your prospects of rehabilitation are good enough to warrant some moderation both in the head sentence and especially in the non-parole period.

48 Apart from a short period in December 2003, you had not served a term of imprisonment under sentence before committing this offence. You had not been in and out of gaol. I accept that this assists you, particularly in relation to specific deterrence.

49 Mr Brown told me that you did serve a period of 21 days undergoing sentence for another matter while you were in custody awaiting the present matter. That period of 21 days does not count as pre-sentence detention under s 18 of the Sentencing Act 1991. However, although it is a relatively short period, I do take it into account in the overall exercise of my discretion, having regard to the principle of totality.[28]

50 I have endeavoured to familiarise myself with current sentencing practices generally and with the range of sentences handed down by this Court for offences against s.325 of the Crimes Act 1958 in particular. However, as was said in R v Kitchin,[29] a wide range of acts, many of them minor, fall within s.325. In the end, as Brooking J said in R v Kyu Hyuk Kim,[30] each case under this section must be decided on its own facts. More generally, in the recent case of DPP v Arney,[31] Nettle JA said:**

"Sentencing judges are bound by law to have regard to current sentencing practices as one of the considerations relevant to the sentence to be imposed. But they are not necessarily bound to impose a sentence which is within the bounds set by previous cases. In truth, each case is unique, and accordingly it must always be possible that a sentence may rise above, or fall below, the greatest or lowest sentences for that sort of crime hitherto imposed."

51 You are convicted of the offence charged under s 325 of the Crimes Act 1958. Weighing up everything to which I have referred, I sentence you to be imprisoned for 3 years. I set a non-parole period of 1 year and 8 months (that is, 20 months). Pursuant to s 18(4) of the Sentencing Act 1991 I declare the period to be reckoned as already served under the sentence to be 569 days and I direct that this be noted in the records of the Court.

[3] See, further, Sentencing Act 1991, s.6.

[4] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611-2; Markarian v R [2005] HCA 25; (2005) 215 ALR 213 at [35]- [39]; cf at [65]-[84] R v Bangard [2005] VSCA 313 at [20].

[5] Crimes Act 1958, s.325(4)(a).

[6] Compare R v Kyu Hyuk Kim [1999] VSCA 65 at [31].

[7] [2005] VSC 68 at pp.5-6. The principal offence in R v Dowdy was manslaughter, not murder; and the maximum penalty was therefore only 5 years' imprisonment.

[8] [2001] VSCA 66 at [36].

[9] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280-281; R v Storey [1998] 1 VR 359 at 369; R v Walker, De Bono and Conci [2003] VSC 155 at [19].

[10] [2007] VSCA 52 at [4] - [9].

[11] Pursuant to s 95 of the Sentencing Act 1991.

[12] In October 2006, ie after the offending presently in question. So the arson matter does not represent a prior conviction.

[13] [2007] VSCA 102 (23 May 2007).

[14] See R v Verdins [2007] VSCA 102 at [5], explaining R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[15] R v Verdins [2007] VSCA 102 at [8]; R v Howell [2007] VSCA 119 at [20].

[17] R v Verdins [2007] VSCA 102 at [14]- [22].

[21] R v Howell [2007] VSCA 119 at [19] cf at [22].

[22] Compare R v Verdins [2007] VSCA 102 at [26].

[23] [2007] VSCA 119 at [20].

[24] As it happens, the same psychiatrist, Dr Sullivan, as was involved in the present case.

[25] [2007] VSCA 119 at [20].

[27] Compare R v Elias [2007] VSCA 125, esp at [12].

[28] See R v Harvey [2007] VSCA 127 at [29]- [30] and the cases there referred to.

[29] [2001] VSCA 66 at [40]. See also R v Dowdy, supra, loc cit.

[30] [1999] VSCA 65 at [32].

[31] [2007] VSCA 126 at [14].