DPP v Scott & Kitchin [2000] VSC 247

5. Elijah Ross was a fine man. He was born on 21 December 1950 and grew up in St. Kilda. His parents were respected members of the Jewish community. Rabbi Groner of the Yeshivah Centre, in a declaration exhibited before me, has traced Mr Ross' history from his origins and his education at the Yeshivah College. Other moving and impressive declarations, by members of Mr Ross' family and close friends, have been exhibited before me. Mr Ross spent his teenage years in Melbourne, and was a keen sportsperson and a champion weightlifter. At the age of 18 he went to Israel, following his elder sister who had gone there with her husband and daughter five years earlier. Mr Ross was twice married, but unfortunately the marriages failed. He had five loving daughters and a loving son. Mr Ross, as was the law in Israel, was conscripted into the Army for the compulsory three years' service. Towards the end of that service he married for the first time. He was honourably discharged from the Army at the end of his service. Then, in September 1973, the Yom Kippur war broke out. Mr Ross volunteered for service, and joined an elite unit of young soldiers fighting on the Golan Heights. He was a crack paratrooper. He served for approximately six months and returned to civilian life only upon the birth of his second daughter. Ultimately, he returned to Australia to live. He went to live on the northern coast of New South Wales. He loved travel and undertook work which enabled that interest to be pursued. Thus it was that he came to work for a period at Strathallan, just south of Echuca. The day he was murdered, just after dawn, was the day he had planned to return to Byron Bay. Many persons, especially his children and sister, have been afflicted by his death. Many hundreds attended his memorial service in Melbourne before his body, at his family's request, was removed to Israel. There, again, many persons attended his funeral. It is the Jewish custom to hold a memorial service at the graveside thirty days after burial. On that day, when family and friends were ceremonially assembled at the graveside, Mr Ross' eldest daughter gave birth to his first grandchild.

8. The path of Mr Ross and the path of both of you, Mr Scott and Mr Kitchin, crossed in these circumstances. Mr Ross had returned to Australia in 1990 and moved to the Byron Bay area in 1995. In January 1999 he travelled to Victoria and obtained employment as a tomato picker on the Monagetti tomato farm in Strathallan. He was liked and respected by other workers. One co-worker, Ms Helen Lobb, described him thus: "Elijah was a lovely bloke who was straight forward and down the line. He had been around and was not at all naive. He was easy to get along with and great to have around". Although suffering from neuralgia, he was a strong and fit man. He was a non-smoker and non-drinker. You, Mr Scott, were raised in Mt. Isa, Queensland. You had lived an itinerant lifestyle in Queensland and the Northern Territory. Some six months before the death of Mr Ross, you met Mr Kitchin in the Northern Territory where you then both had been working. The two of you teamed up and commenced to travel together down the eastern States, doing various labouring jobs. For reasons I shall come to, your relationship was a dependent one. It was not a sexual one. You both ultimately arrived in Melbourne, where you Mr Kitchin had been raised, and then went north to Echuca for work. Thus it was that you both arrived at the Monagetti tomato farm, Strathallan, on Friday 26 March 1999 - two days before the death of Mr Ross.

11. Mr Ross, having worked at the Monagettis for some two months, had decided to return to Byron Bay. Accordingly, he came down to Melbourne in mid-March to spend time with friends in the Jewish community and with others. He left a number of his belongings at the Monagetti farm. While returning from Melbourne, on 24 March in Castlemaine he sold his motorcycle and purchased a Mitsubishi Starwagon van. On Saturday 27 March he returned to the Monagetti farm. A number of his co-workers were still there: and there were two new arrivals, who had arrived the day before - the two of you.

17. On the Saturday in the late afternoon, Mr Ross, a co-worker of his Mr Swallow, and you, Mr Scott, went into Echuca. You returned to the farm at about 8.00 pm. Then you, Mr Scott, you, Mr Kitchin and Mr Ross and Mr Swallow sat around the campfire talking into the night. The physical setting was that there were two tents (yours in one corner and Mr Swallow's in another) and a campfire in a high open shed. The tents were in diagonal corners of the shed. Outside the shed was parked Mr Ross' van. The furthest tent from the van was that of both of you. Ultimately, Mr Swallow went to his tent to sleep and Mr Ross went to his van to sleep. You both remained talking by the campfire for hours. You, Mr Kitchin, were consuming a quantity of alcohol. Then at about 6.00 am, as dawn was breaking, Mr Swallow was awoken by a terrible scream. It was the voice of Mr Ross. Mr Swallow immediately commenced to leave his tent but was pushed down before he had fully left it. It was you, Mr Kitchin, who tackled him to the ground. You twice said: "Don't go over there, or you will get killed". You, Mr Scott, had attacked the sleeping Mr Ross in his van with a bayonet. Mr Ross had been able, despite the injuries you inflicted, to lock his van. You then smashed the window of his van, opened the sliding doors and attacked Mr Ross further. He died soon afterwards. You, Mr Kitchin, having tackled Mr Swallow, sat beside him while this was going on. You, Mr Scott, gave orders to Mr Swallow. You, Mr Kitchin, and Mr Swallow got in the van. Mr Swallow was terrified and thought he would be next. The van was then driven away, with the body of the deceased in the rear.

20. The attack by you, Mr Scott, on the sleeping victim was totally unprovoked and unjustified. You attacked and killed a man peaceably sleeping in his vehicle.

23. When the van was driven from the scene, you, Mr Scott, were the driver. But at Echuca you, Mr Kitchin, took over the driving and drove continually thereafter. At a service station Mr Swallow was told by you, Mr Scott, to give his keycard and PIN number to you, Mr Kitchin, which he did and which you accepted. At Echuca you, Mr Scott, told Mr Swallow to get out as much money as he could from his account at the Echuca N.A.B. ATM. You, Mr Kitchin, told Mr Swallow not to try anything silly. Mr Swallow extracted $500 which he gave to you, Mr Scott. Then the vehicle was driven away, with you, Mr Kitchin, at the wheel. Mr Scott was in the front passenger seat. You both were talking continuously to each other about where to leave the body of the deceased. You, Mr Kitchin, appeared to know where you were going, and eventually at a remote location near Lake Eppalock you stopped the vehicle. At your direction, Mr Scott, Mr Swallow helped remove the body. You and Mr Kitchin then covered the body, both of you said a prayer, and then you drove from the scene, still with the fearful Mr Swallow. You drove south towards Melbourne. While you, Mr Kitchin, were driving, Mr Scott threw the bayonet into the bush. In a town, you, Mr Kitchin, stopped the vehicle and yourself used Mr Swallow's card and purchased alcohol. You said you had tried to get more money out of the machine but were unable to. While you were doing this, Mr Swallow and Mr Scott remained in the van. You, Mr Kitchin, continued driving and at the same time commenced consuming the alcohol. You, Mr Kitchin, used the deceased's mobile phone to telephone a friend of yours in Bendigo. You then drove to the friend's house, and there gave him money and a Walkman. The Walkman belonged to the deceased. Then you drove the other two to Melbourne. Mr Swallow was warned by you, Mr Scott, and then the two of you left him and drove off but before doing so, you, Mr Scott, obtained Mr Swallow's keycard from Mr Kitchin, wiped it clean and returned it to Mr Swallow.

26. Mr Swallow described the conversation in the front seat of the van between you both, in the drive from Bendigo to Melbourne, as "whispering".

29. Mr Swallow returned to Echuca and then went to Queensland where ultimately he was questioned by police in Bundaberg. Through fear he first made a false statement (on 10 April 1999) and then a statement (on 14 April 1999) which I consider is true. It is clear that at the Monagetti farm and thereafter he was terrified that you, Mr Scott, would kill him next. It is clear also, Mr Kitchin, that you reassured him, saying "Don't be worried, I won't let him hurt you".

32. On Wednesday 31 March 1999 - three days after dropping Mr Swallow in Melbourne - a plant operator in Gunning, New South Wales saw the deceased's van being driven off the old Hume Highway. He saw it the next day parked in a bush area, behind some rocks, just out of Gunning. He reported the sighting to police. A local film producer did likewise. Police observed the parked vehicle on 2 April and, when it was still there on 4 April, inspected it. The vehicle was unlocked and the keys were in the ignition. Blood and personal papers were found in it. The identity of the deceased was established via the Byron Bay police station. This, in turn, led to inquiries by the Victoria Police as to work associates of the deceased and on 12 April 1999 police contacted your family, Mr Kitchin, in Moonee Ponds. You both had decamped to New South Wales after the killing for some two weeks and then separately had returned to Victoria. You, Mr Kitchin, having been contacted by police, then came forward and gave an extensive account of the events to the police. It was false. Then, on 20 April 1999, you, Mr Scott, were apprehended in Ozanam House, North Melbourne. You were interviewed and gave an account which was substantially - not entirely, but substantially - true. You, Mr Kitchin, on 13 April 1999 were charged with being an accessory after the fact to murder. (At that date Mr Swallow had not made his second, truthful, statement implicating you.) On 20 April 1999 you, Mr Scott, were charged with the murder of Mr Ross.

35. Other investigations continued during this period. On 5 April 1999 fingerprint experts from Queanbeyan attended at the dirt track outside Gunning and examined the van. A fingerprint was obtained from the inside glass of the driver's window. On 20 May 1999 that print was matched with yours, Mr Kitchin. The vehicle was removed to Yass Police Station. There the interior of the vehicle was thoroughly examined. It was extensively bloodstained and there was a bloodstained towel on the front floor. The possessions of the deceased, eloquent of his nature, were found: a thesaurus, numerous Jewish religious books, a harmonica, a Mantra boogie board, a manual of photography, a Hanimex camera, a miniature chess game, a dynamic chess book, an electronic chess instruction manual, and a Master electronic chess board.

38. On 15 April 1999 the body of the deceased was found off Cooee Track, near Lake Eppalock, via Axedale. An autopsy was conducted by Dr Malcolm Dodd, pathologist, on 16 April 1999. The cause of death was multiple stab injuries. It was you, Mr Scott, who inflicted those injuries, upon the sleeping deceased. As far as could be ascertained, there were no defence injuries. The deceased's clothing revealed at least 11 stab injuries to the deceased's chest, left arm and left thigh. Toxicological analysis revealed no alcohol or drugs in the deceased.

45. Continuing to take the matter in chronological sequence, I turn first to your police interviews, Mr Kitchin, which were a week earlier than those of Mr Scott. You, Mr Kitchin, had responded to a police inquiry to your family home in Moonee Ponds on Monday 12 April 1999. Police attended there and apprehended you at 6.00 pm that day. You were told you were "under arrest for the murder of Elijah Ross" (D.319). You were taken to the Homicide Squad offices in Melbourne and there interviewed from 8.07 pm to 10.16 pm and from 12.57 am (Tuesday 13) to 1.08 am. In the interval a search was conducted of your premises at Moonee Ponds where the deceased's electronic organiser (Sharp 64 KB) was found by police. You answered all of the 690 questions asked of you. Then with police you attended at the Monagetti farm at Strathallan between 8.15 am on that Tuesday (13th) until 9.21 am, and then took the police to an area near Lake Eppalock in search (unsuccessfully) of the body of the deceased. Thereafter you attended the nearby Axedale Police Station where you were further interviewed between 2.02 pm and 2.22 pm. Throughout, you answered all questions asked of you. At 2.22 pm you were informed that you would be "charged with having been an accessory to murder" (D.461, Q.63). At 5.10 pm, back at the Homicide Squad office, Melbourne, you were charged with being an accessory after the fact to the murder of the deceased. It appears that the investigating officers accepted what you told them as substantially truthful. You presented well and were plausible. At that time the police did not have the second, truthful, statement of Mr Swallow: it was not made until 9.45 pm the next night, 14 April, in Bundaberg. I have considered your police interviews in the light of all the admissible evidence against you. I have examined the videos of them a number of times. I do not accept your police interviews as truthful. I consider they were self-serving and false.

48. In essence, Mr Kitchin, you said to the police that you had no expectation that Mr Scott was going to attack the deceased and that when you saw the attack you acted in fear of Mr Scott then and thereafter. Your story is demonstrably false. First, your posture is flatly contradicted by the evidence of Mr Swallow. Far from acting in fear of Mr Scott after the murder, you helped yourself to all the opportunities which presented themselves: Mr Swallow's money, the deceased's phone, the deceased's electronic organiser. You drove the deceased's vehicle to an area you knew to be remote in order that it would not soon be discovered. You helped cover the body. You shared the short commitment ceremony at the body site. You were "whispering" down the road to Melbourne to your co-accused. You lied to the police about the murder weapon. You had been given it two days earlier in Bendigo. At Strathallan you exhibited it. Witnesses said it was very sharp: Eeles ("very sharp": D108); Helen Lobb (a fruit picker and former blacksmith: "very sharp" D.170). But to the police you said it was "blunt as" (D.352 Q.125). Significantly, you assured Mr Swallow, who was fearful of Mr Scott, that you "won't let him hurt" Mr Swallow. You told Mr Swallow, when you and he were on the public street in Echuca (and Mr Scott was still in the van) "to stay calm and not to try anything silly". Thereafter the hapless Mr Swallow, in your presence, extracted his $500 from the ATM at the National Bank. On the drive to Melbourne, you stopped at Bendigo to see a friend of yours, Mr Eeles, who had given you the bayonet two days earlier and had lent you money. On the highway you used the deceased's mobile phone to telephone Mr Eeles to say you were coming. You said that as you spoke you "were just going to pull over and pick up a hitchhiker (you and Mr Scott) saw along the road" (D.110). That in fact was Mr Swallow who had been a witness to the murder, and your statement on the mobile phone was your ruse to explain his presence in the van. At Bendigo the fearful Mr Swallow did not say a word. But you repaid Mr Eeles (with Mr Swallow's money), gave Mr Eeles the deceased's Walkman (at Mr Scott's suggestion) and when Mr Scott suggested throwing the deceased's phone or chip away you said to Mr Scott "No, we might still need it". You were not acting in fear of Mr Scott. Nor were you acting out of loyalty to him, as your self-serving conduct and your later police interviews demonstrate. You had full knowledge of the circumstances of the crime. In cases of accessories, ignorance of the detail of the crime, fear (often very real and well-founded fear) or loyalty (sometimes of a parent or partner) can operate significantly in mitigation of penalty. No such excuse operates in your case. Your conduct was a deliberate, relevant, sustained and continuous case of an accessory with full knowledge of the facts and must be punished accordingly.

51. In your favour I take into account the matters ably urged on your behalf by your counsel. You had a difficult and disrupted upbringing. You lived as a street person from the age of 15. You have 32 prior convictions on eight occasions from January 1990 to January 1999 but only one was for (limited) violence: at Prahran Magistrates' Court on 17 January 1992 for intentionally causing injury and for which you received a two months suspended sentence. That offence occurred in relation to a theft. So you have no history of violence. You were for years an abuser of alcohol but had limited other substance abuse. You took numerous itinerant jobs, and indeed, it was upon coming south from Darwin after one such job that you met Mr Scott, in the Northern Territory. I have had the benefit, as well as a full plea on your behalf, of a full psychological report of a most experienced psychologist, Mr Bernard Healey, undated, of an assessment of you made on 19 May 2000. You suffer no psychiatric illness or psychological disorder. I take the matters most comprehensively reviewed on your behalf into account. You have pleaded guilty with its beneficial consequences and have been prepared to plead guilty to the charge preferred against you from the time of your apprehension. Your attempt on 13 April 1999 in the presence of the police to find the body was a genuine one. However, I do not consider your apparent co-operation on 12 and 13 April 1999 with the police betokens remorse. Rather, it was an attempt by falsehood to save yourself from being charged with murder. Accordingly, I do not take your apparent co-operation with police into account in reduction of sentence. (I do not, of course, take it into account in increase of sentence, for you are to be sentenced for accessory, not for murder). Given your age, antecedents and lack of violent convictions, I take into account in your favour your prospects of rehabilitation, which are to be nurtured, not extinguished. Nonetheless, as I have said, your actions as accessory stand in the most serious category and lack the elements of ignorance, fear or loyalty which properly would otherwise diminish sentence significantly.

58. Mr Scott, it was you who killed Mr Ross. Your attack was a violent and persistent one. The victim had offered no cause to be attacked. He was asleep in his van. Your attack upon the victim is to be condemned.

61. At the time you were 36 years of age. You had a most unfortunate and afflicted upbringing for which one can feel nothing but sympathy. It has been comprehensively articulated by your counsel before me. It is unnecessary here to rehearse its unhappy detail, which can be found in the transcript of the plea at pages 38-44. I take that history into account in your favour. You have 24 previous convictions upon 14 occasions from January 1981 to February 1999. Most are for minor matters. I accept what your counsel has said in explanation of the convictions at the Brisbane District Court on 21 August 1981 which resulted in a community based order and probation, and in explanation of the assault conviction in the Magistrates' Court at Inala on 16 September 1981 which resulted in a small fine. The offences of which you were convicted in the District Court at Gladstone on 7 August 1991 were sexual offences which involved a threat with a carving fork and were serious (as the penalty reflects) but which did not involve uncontrolled or persistent violence. You have pleaded guilty to murder, and have been prepared for some time to do so. I take that into account in your favour both for its own sake and its beneficial consequences (R v Donnelly (1998) 1 VR 645) but also because in your case I consider it betokens genuine remorse for your crime. I have observed you in court as well as in the video and I am satisfied you have genuine remorse for your crime. The psychiatric report, exhibited before me, of Dr J. Barry-Walsh of 15 April 2000 is further evidence of your remorse. That remorse in turn is the harbinger in you of reformation. Your cooperative and helpful conduct in gaol, as evidenced by the report of the head chef exhibited before me, is consistent with that conclusion. To your distinct credit, at no time have you sought falsely to blame the deceased for your attack upon him.

64. An especially significant matter, both in explanation of the crime and in containment of penalty, Mr Scott, is your intellectual deficit. I have had the benefit of evidence on your behalf of a distinguished psychologist, Mr Michael Crewdson, and of a report of his of 15 April 2000. You as a child went to the Inala Opportunity School. You are functionally illiterate. Upon Wechsler Adult Intelligence Scale (W.A.I.S.) testing by Mr Crewdson, you were assessed with an I.Q. of 66. That is in the range of mild intellectual disability. A score of 69 is the level at or below which persons are eligible for registration under the Intellectually Disabled Persons' Services Act 1986. Testing by Mr Crewdson utilising the Derogates Brief Symptom Inventory (B.S.I.) revealed a profile "more suited to that of an in-patient in a psychiatric institution" (Report, 15 April 2000, p.13, exhibited before me). Significantly, your profile on aggression was found to be low. Your intellectual deficit moderates (but does not eliminate) the application to your actions of the principle of general deterrence: Champion (1992) 64 A.Crim.R. 244 per Kirby P. (as he then was) at 254-255 (and in whose judgment Sully J and Lee AJ agreed). It also lessens, but does not eliminate, your moral culpability: R v Clay (CCA, 7 October 1996) per Callaway JA at 8 (in whose judgment Brooking JA and Southwell AJA agreed). It also causes me to direct a longer period of availability to you of parole than normally I would order, so that you may be given proper support when ultimately you are released.

67. Your intellectual deficit and Mr Crewdson's finding that you are "highly suggestible" (T.57, l.15) have in my opinion central relevance to why you committed this crime. I have studied the video of your police interview. Your flat affect and bewilderment are evident. I do not accept your statements that you were in fear of Mr Kitchin because your subsequent conduct disproves it, as evidenced by Mr Swallow. But, conscious of its seriousness, I conclude that you were dependent upon and influenced by Mr Kitchin in the fatal actions you took. I have not overlooked the self-evident nature of your actions, nor evidence such as that of Mr Kades (D.151-152) that on the farm you were the arrogant leader and Mr Kitchin the follower. But I accept your answers in the police interview (admissible, of course, only in relation to you, not Mr Kitchin) that in your relationship Mr Kitchin was the thinker and you the doer. Mr Kitchin's IQ was 101 (report of Mr Healy, p.11). Yours was 66. I have searched for, but cannot find, any motive in you for this crime. The prosecution can proffer no motive. You were not insane or acting as an automaton. The attack was deliberate and not provoked. Why then did the crime occur? The answer I think lies not in you but in Mr Kitchin.

70. In the plea on behalf of Mr Kitchin, counsel presented a passage written by Mr Kitchin. It was this, of his youth (T.117):

"I moved from job to job, relationship to relationship, but it wasn't until I joined the Australian Army Reserve in 1997 when I finally found something I was good at, and something I felt proud of. I enjoyed Army life; the discipline, mateship and personal challenges made it appealing."

Mr Kitchin did three months' full time training in the Army Reserve but his prior convictions precluded him from joining the full-time regular Army. His counsel expressed it thus (T.122):

"He described that particular time (in the Army Reserve) as being extremely fulfilling for him, and he was devastated ultimately to learn that after nine months he couldn't ever transfer into the full-time regular Army because of his prior convictions that he had against his name. That was a great below to him. He gave up all notion of being able to continue with the Army, and thereafter, casual work again followed."

The murder weapon was an Army weapon of special heritage. It was provided to Mr Kitchin two days before the killing, by Mr Eeles. Mr Eeles had done the three month Army Recruit training course at Kapooka and Singleton with Mr Kitchin. You had not previously met Mr Eeles. On Friday 26 March 1999 (according to Mr Eeles, but presumably Thursday 25 as you both arrived at Strathallan on Friday 26: Mr Kades, D.148; Mr Monagetti, D.162; Ms Lobb, D.169), Mr Kitchin rang Mr Eeles and later that day, en route to Echuca from Melbourne, you and Mr Kitchin met him in Bendigo. That night Mr Eeles gave Mr Kitchin the bayonet. It was a black bladed, very sharp, World War Two Schmelling .303 bayonet. Mr Eeles had sharpened the bayonet himself. He also gave Mr Kitchin an Army issue hessian bag with a regimental number. Mr Kitchin pointed out that you, Mr Scott, were wearing Australian Defence Force running shoes (later found in the van at Gunning) belonging to Mr Kitchin and which had been issued to Mr Kitchin when he and Mr Eeles were in the Army Reserve. In the afternoon, while drinking, a casual conversation occurred thus, according to Mr Eeles (D.111):

"... we were talking about Army things and killing. I said if you killed somebody you would just dump the body down a mine shaft around Bendigo. This was just drunken talk and I meant nothing by this. Both Troy and Bob were there when I said this. They asked where these mines were and I said the Central Deborah gold mines were all out around Eaglehawk and everywhere in Bendigo. Other than this they didn't say anything and we went on to talk about other things."

When you and Mr Kitchin arrived at the Monagetti farm on Friday 26 March you, Mr Kitchin, and a number of workers were at the pickers' camp. One worker, Ms Lobb, stated that Mr Kitchin went into his tent and came out displaying the bayonet. He said it was a World War Two bayonet and Ms Lobb thought he also said it was German. Ms Lobb had been engaged in the blacksmith trade and tested it by running it down her fingernail and found the blade was "very sharp". This was the bayonet which, in his police interview, elicited this description from Mr Kitchin:

"A.124: ... It was meant to be ornamental. Not to be used as a weapon. Q.125: Was it sharpened? --- No. No, it was blunt, but it had a tip, you know. It came to a point, but it was blunt as. It hadn't been sharpened since the Second World War."

Another worker, Dale Bradley, said that in the conversation at the pickers' camp "while we were having a drink Troy said he used to be in the Army and then showed us a bayonet that he had" (D.177). Mr Swallow stated that "Troy had a bayonet and he brought it out one day and showed everyone that was there" (T.89). Then the next night Mr Ross, Mr Swallow, Mr Kitchin and you were sitting around the camp fire for hours. Mr Ross was to leave the next day. Mr Kitchin had already found it relevant to state that he had been in the Army and to display the Army bayonet. It is quite possible that, in that reflective scene, the talk elicited that Mr Ross had been a successful solider - the very entity denied to Mr Kitchin. But Mr Ross was not to know Mr Kitchin was a frustrated Army reject.

81. That possibility firms to probability by reason of the objective circumstances that then occurred. Mr Kitchin, when Mr Ross was being mortally attacked, did not lift a finger to help him. He did not call out a warning to Mr Ross. He did not call for help from Mr Swallow. He did not decamp for help or through fear. He and Mr Swallow were not cornered by you. Mr Kitchin tackled Mr Swallow, as Mr Swallow was leaving his tent in response to Mr Ross' piteous cries for help. He stayed beside Mr Swallow thereafter. He twice said to Mr Swallow - Mr Kitchin who did not know Mr Ross was to be killed - "Don't go over there, or you will get killed". Not "you might get killed" or "you will get hurt"; "you will get killed". Having not lifted a finger to help the deceased, and not uttered a cry of warning or for help, in the van Mr Kitchin lent over the dying victim, told him to hold on and told Mr Scott to take the victim to hospital. They were hollow words. Mr Kitchin later showed no fear of you, although Mr Swallow was terrified. Although you gave Mr Swallow orders, at no time did you give Mr Kitchin orders. Perhaps most eloquent of all was Mr Kitchin's silence: not once did he ask you why you did it.

84. There is no objective evidence (for example, from Mr Swallow) that Mr Kitchin ever asked you why you did it. In his police interview, Mr Kitchin was asked (Q. 57, D. 339) "Why was Elijah murdered?" and he replied "I don't know...". The balance of that answer demonstrates that he never asked you after the event why you did it - despite your being together for two weeks after the crime. Mr Kitchin's recalcitrance betokens not subsequent ignorance but prior knowledge. He had no need to ask why. Mr Kitchin's actions are consistent with being a knowing party to the murder. They are inconsistent with not being a party to it.

87. In the foregoing, I have not relied upon the word of each of you against the other. Accomplices often blame each other, as the experience of the law shows, and your police interviews are inadmissible against each other, as the experience (as well as the letter) of the law requires.

90. Applying the appropriate standard of proof in exculpation (R v Storey (1998) 1 VR 359), and conscious of the seriousness of the finding, I am satisfied on the balance of probabilities that Mr Kitchin was the architect of the killing and that you, with your intellectual deficit and dependence, were influenced by him to act as you did.

93. I do not apply those findings in relation to Mr Kitchin, who is before me for accessory, not murder. I do apply them in relation to you, Mr Scott, in explanation of the crime you committed. It is probable that Mr Ross died because he was a soldier for Israel.

100. Mr Scott, you have served 423 days in pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of 423 days as already served under the sentence I impose and I so certify. For the reasons I have already stated (paragraph 19) for you I direct a longer period of availability of parole than normally I would. Mr Scott, for the murder of Elijah Ross I sentence you to 17 years' imprisonment. I direct that you serve a minimum term of 12 years' imprisonment before becoming eligible for parole.

103. Mr Kitchin, you have served 431 days in pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of 431 days as already served under the sentence I impose and I so certify. Mr Kitchin, for being an accessory after the murder of Elijah Ross I sentence you to seven years' imprisonment. I direct that you serve a minimum term of five years' imprisonment before becoming eligible for parole.

[1] In this sentence hereafter I use the term "accessory" as it is a familiar public term. It also is the term used in the heading to s.325(1) Crimes Act 1958 and to sub-division (3) (and also in Sixth Schedule Form 2) and in s.338. The usage "assisting offender" - not the ungrammatical "assist offender" - appears to derive from Archbold: see Archbold 1998 para. 18-35 and in turn from the side note to s.4 Criminal Law Act 1967 (UK) (but not the text of that section).