DPP v Tiumalu [2023] VSC 233

2 The maximum penalty for the offence of manslaughter is 25 years imprisonment.

3 Mr Farrell was 33 years old at the time of his death. From about June 2020 he had been living in a rear bungalow at an address at Kidds Road, Doveton, and he paid rent to Richard Jackson.

4 At the time of Mr Farrell's death you were living in Hampton Park.

5 There were other persons involved in the circumstances surrounding the death of Mr Farrell, these being Mr Jackson, who lived in the main residence at the Kidds Road address, and Robert Haapakoski, who lived in Noble Park.

6 In the period leading up to the death of Mr Farrell, tension had developed between him and Mr Jackson. Mr Jackson decided to evict Mr Farrell from the bungalow and asked you to help with doing that. You, in turn, called on an associate of yours, Quinn Letzing, to help you with the eviction. Mr Letzing worked in the security industry.

7 During the later investigation of this matter, police obtained some communications between you and Mr Letzing which occurred in the lead-up to the attempt at eviction. Some of those communications showed the arrangements that were made between you and Mr Letzing about what was going to happen. You told Mr Letzing you were going to "tell a shit cunt ... [he is] being evicted, haha". Mr Letzing asked if it was just you going, and you responded that you had "stand-bys" but they were never needed.

8 Shortly before midday on 31 May 2021, Mr Farrell was in the bungalow with his ex-partner, Kristy Mayes. He woke up and left the bungalow to go to the main residence at which time he was met by you and Mr Letzing. After a short conversation, the three of you went into the main residence, where the conversation continued. While talking to Mr Farrell, you lost your temper and slapped him to the face. You then grabbed him by the scruff of the shirt, pulled him in a downward motion and you both sat on the couch in the living room. You pulled Mr Farrell in close to you, held him by the legs and then punched him twice to the head and face, which caused him to bleed from his nose or eyebrows. From the bungalow where she was, Ms Mayes heard Mr Farrell screaming for help, and thud-like sounds. Mr Jackson then went into the bungalow and began searching for what he described as a "tin of rare coins", and some prescription medication that he said Mr Farrell had stolen from him.

9 Meanwhile, Mr Letzing had become worried about what had happened in the house, took your car keys, and went to the bungalow. He told Ms Mayes and Mr Jackson that he was leaving. He went back inside the main house and saw you still sitting on the couch holding Mr Farrell. He saw Mr Farrell in a dazed condition. Mr Letzing then left and went home.

10 You then went outside and had a conversation with Mr Jackson, with Ms Mayes hearing you say that you had done some "re-decorating" inside the house and there was blood everywhere. You then pointed to your boots where Ms Mayes saw what she believed to be blood. Ms Mayes became concerned for her safety and collected her belongings in order to leave. You warned her, saying to her that, "you've seen nothing here". She left and never saw Mr Farrell again.

11 Later that day, you contacted Mr Letzing and told him to return the car, and to park nearby to wait for further instructions. You then told Mr Letzing to reverse the car into the driveway. Mr Letzing did so, and saw you carrying Mr Farrell in your arms. Mr Letzing observed that Mr Farrell did not appear to be conscious. You opened the rear passenger door and placed Mr Farrell into the rear foot well. You and Mr Letzing then drove the vehicle away. Afterwards, you dropped Mr Letzing home. On the way there, Mr Letzing heard Mr Farrell snoring very loudly and quivering intermittently. It is apparent that he was still alive at that time, but it is not possible to know exactly what condition he was in.

12 Mr Farrell was reported a missing person later that night by his mother, Valerie Hellyer. As a result, police attended the Kidds Road address to carry out a welfare check on Mr Farrell. Mr Jackson told them he had not seen him since 30 May 2021, which was clearly a lie.

13 At some point between 31 May 2021 and 4 June 2021, you contacted Mr Letzing and told him that, "I've still got him". Some days later, you again contacted Mr Letzing and told him, "the dude has gone", the most likely interpretation of which is that by then Mr Farrell was deceased.

14 In the days leading up to 9 June 2021, Ruby Haapakoski, Mr Haapakoski's niece, who lived with her uncle at Cyril Grove in Noble Park, told her mother that "they are digging a grave in the back yard". Her uncle was in the backyard with you, and you were digging a grave.

15 On 3 June 2021, police executed a search warrant at the Kidds Road address. A forensic analysis took place at the premises. Bloodstained shoe impressions were located and forensic testing showed traces of blood on the carpet. Further, a cricket bat at the premises was found to have visible blood staining, and traces of blood were found in the laundry sink, and there was a wet mop nearby.

16 On 3 June 2021, Mr Jackson was arrested and interviewed. He provided a statement saying that he last saw Mr Farrell riding away on a pushbike. Again, this was untrue.

17 On 11 June 2021, analysis of the remains of blood that had been located confirmed the blood was from Mr Farrell. Despite police searches in local areas, Mr Farrell was not located.

18 About a month later, on 8 July 2021, monitored telephone calls revealed you telling another person that some things you had done had just come on the news, and that if you were to get caught it would be serious, and that it was only a matter of time. The tone of your conversation suggested that you believed it was possible you would be arrested, and you asked that person whether they had told anyone.

19 On 9 July 2021, police executed search warrants at a number of locations, including your address. At that place, police located a pair of boots that appeared to be bloodstained, mobile telephones and a shovel. One of the telephones contained videos of you digging a hole in the rear of the Cyril Grove address. There were also videos showing you standing over Mr Farrell, with him lying on the floor, motionless and in a bloodied condition.

20 Police also executed a search warrant at the Cyril Grove address. Mr Haapakoski there indicated that Mr Farrell's body was in a canoe in the rear yard. Police located two holes in the ground, as depicted in photographs located on one of your mobile telephones. Videos saved in that phone also showed the holes being dug by you between 5 and 15 June 2021. Furthermore, police detected a strong odour in the yard consistent with the decomposition of a body.

21 Police investigators located a white and blue coloured canoe covered with a tarpaulin in which they found Mr Farrell's remains wrapped in a blue carpet.

22 A forensic pathologist attended the scene and confirmed the presence of human remains. However, Mr Farrell's cause of death could not be established due to advanced decomposition of his body. An expert review of his body found that the left and right nasal bones had separated from the frontal bone, the right nasal bone was fragmented, while the nasal sill, the left and right orbits, the zygoma, and the nasal septum were intact.

23 On 9 July 2021, you were interviewed by police and made no comment to the allegations put to you.

24 The prosecution case is that animosity had developed between Mr Jackson and Mr Farrell. Mr Jackson engaged your services to evict Mr Farrell from the bungalow at the Kidds Road address in Doveton. You went to that address and assaulted Mr Farrell in the main house, later removing him and putting him in the back seat of your vehicle. It is the case that Mr Farrell was alive for an unknown period following the assault, but died at an unknown time, due to the injuries inflicted by you.

25 You drove your vehicle with his body in the back for several days before taking him to Cyril Grove, where you put his body in a canoe in the backyard. You then dug two holes over several days, with Mr Farrell's body remaining in the canoe until eventually being discovered by investigators. The prosecution case is that you killed Mr Farrell by seriously assaulting him with an appreciation of the risk of serious injury. The prosecution case is that the charge of manslaughter is put on the basis that you had committed an unlawful and dangerous act by your assault on Mr Farrell, which injured him, from which injuries he later died.

26 The Court received two victim impact statements provided by people affected by your crime.

27 In her victim impact statement, Mr Farrell's mother, Valerie Hellyer, told the Court that receiving the news of her son's death was the worst month in her life and will be for years to come. She said she will never again experience the joy and happiness of birthdays and Christmases together with her son. She stated that she is overcome with darkness, and by the lies and deceit surrounding her son's death, and that she feels overwhelming loss. In particular, Ms Hellyer asked why no one cared enough to help her son when he had been injured. She told the Court that she finds it hard to forgive those who could have attempted to save her son but did not. She feels unable to grieve for her son properly because she was deprived of the chance to achieve closure by seeing him or his body one last time. She finds it difficult to understand why Mr Farrell was not treated with dignity and respect, even in his death.

28 Mr Farrell's sister, Simone Hellyer, told the Court of the inseparable brother-sister bond she had with her brother, Mr Farrell. She described her brother as being not only her best friend, but her mental safety net and protector. She described the five weeks of waiting for news about her missing brother as painful, worrying, and dreadful. Ms Hellyer described suspecting that something was not right, and the pain of having her suspicions confirmed.

29 She told the Court that, because of the way in which her brother's body was treated, she was unable to hold his hand or say goodbye in the way that he deserved. She remains haunted by her experience of smelling her brother's body in the funeral home. She told the Court of her grief and sadness, particularly for her daughter who will now grow up without an uncle who was proud and happy for her. Ms Hellyer stated that what should be happy milestones in her life have now become an emotional rollercoaster, because her brother cannot share these moments with her.

30 The statements made by Mr Farrell's mother and sister make clear the traumatic and enduring impact that the death of Mr Farrell has had on them, which occurred as a result of your actions.

31 You were 30 years old when you killed Mr Farrell. You are now 31. You are of Samoan heritage, and were initially raised as an only child in your country of birth, New Zealand. You came to Australia with your family when you were five years old.

32 You were adopted in infancy by a cousin of your biological mother and experienced an unstable childhood. You report having had a strict and religious father, who was absent for extended periods during your upbringing. You are said to have a strong relationship with your mother and grandmother.

33 You completed your VCE in Queensland but had few friends or allies. You therefore grew up socially isolated, having a poor opinion of yourself. You self-harmed until you were aged 18. You engaged in fruit picking work once you had left school, and when you turned 19 years old, you obtained employment in an abattoir where you report having been bullied at work. You also report having engaged in binge drinking from the age of 17 onwards.

34 You have had one significant relationship with a partner, which broke down after three years. You have no previous criminal history.

35 From aged 21 and onwards, you experimented with cocaine. At age 27, you began to use methamphetamine over a three-year period until your arrest in July 2021.

36 You obtained work in the security industry but this became scarce during the COVID-19 pandemic. For a period of about six months before your arrest, you were using ice on a daily basis and drinking regularly. You fell into a pattern of collecting debts for drug associates. Notably, whilst on remand you have successfully participated in drug and alcohol programs and engaged fully in sessions, being cooperative through that process. You also completed a six-hour alcohol and other drug and stress program by August 2022.

37 The Court received a report from Mr Luke Armstrong, consultant psychologist, dated 31 January 2023. Mr Armstrong observed you to be a large thick-set male of Samoan background, presenting with a restricted range of affect. He noted that you had developed within a repressive, abusive and dysfunctional family environment, with your father being an overwhelming, violent and abusive attachment figure. Mr Armstrong also noted that you presented with significant emotional disturbances from a young age, and expressed the opinion that you display "very long term personality disturbances beginning in childhood and developing throughout adolescence and adulthood".

38 You also presented with a very long-term pattern of unstable interpersonal relationships, with a sense of social isolation, paranoia and resentment, a profoundly unstable sense of self, a long pattern of self-harm, a lifelong history of erratic mental states defined by irritability, anxiety and depressed or dysphoric mood, and a history of inappropriate, intense anger or difficulty controlling anger, leading to physical altercations. Further, Mr Armstrong opined that you experience transient stress-related paranoid ideation, with every aspect of your interpersonal life defined by malevolent behaviour from significant others.

39 Mr Armstrong concluded that you fulfil the criterion for Borderline Personality Disorder ['BPD'], and a Stimulant and probable Alcohol Use Disorder. Mr Armstrong expressed the opinion that you are:

... a very complex case, he is of borderline to low average intelligence. He experienced what would be described in clinical terms as an extreme childhood, and one that proved to be very confusing and traumatic. Adding to this are the known complexities associated with traumatic adoption, [e]specially many survivors of adoption struggle to assimilate their subsequent attachment experiences ... Mr Tiumalu's childhood and adolescence experience, coupled with the pattern of his interpersonal experiences and identity is consistent with a Borderline Personality Disorder. I would venture further to suggest that Mr Tiumalu is a dual diagnosis client. Substances have been entwined with his personality disorder for many years. ... It is also my view that for at least a period of 3 years prior to the offending, Mr Tiumalu was also suffering Alcoholism and fulfilled the necessary criteria for a Stimulant Use Disorder.

... capacity to exercise appropriate judgement began to unravel when he was approached by Jackson the night before the offending. ... When the victim verbally retaliated, Mr Tiumalu experienced a combination of distorted feelings: specifically he felt unsafe and threatened by the victim. He also felt humiliated, secondary to a belief he was being socially humiliated or put on show in front of witnesses. These triggers in turn activated an instinctual, yet disproportionately violent reaction, Mr Tiumalu concedes that he assaulted the victim. Whilst Mr Tiumalu's assaultive response was a disproportionate one, it was nonetheless a proportionate response when his background of familial violence; bullying; social humiliation and rejection is considered.

... It would appear that the alleged circumstances of offending were preceded with an inadvertent trigger from the victim, which activated memories of violent interactions preceded by rejection in childhood and adolescence. These flooding memories impaired your client to make calm and rational choices or to think clearly, which in turn activated a similarly disproportionate, violent response toward the victim.

41 On your behalf a number of written reports and references were provided to the Court, as well as a written outline of submissions, which I have considered and taken into account. Your Counsel also made oral submissions to the Court.

42 As to the nature of gravity of your offending it was emphasised that no weapon was used to inflict the injuries on Mr Farrell, and that you did not come pre-armed to the incident. Further, that there was no agreement reached with Mr Jackson, or your assistant, that Mr Farrell would be assaulted. Rather, it was submitted that your offending should be assessed as spontaneous, happening when you lost your temper. In other words, there was no premeditation to the assault that ended in death.

43 As to the assault itself, it was pointed out that there are agreed facts as to what happened - that this was an assault that was contained in its duration, unlawful and dangerous, but to be compared against offending of longer duration, which would have to be regarded as more serious.

44 As above, it was submitted that the offending was spontaneous, involving you having slapped Mr Farrell to the face, grabbed him by the scruff of the shirt pulling him downwards, and then punching him twice to the head and face. On your behalf it was submitted that the assault was contained to one slap and two punches, was short in duration, and involved limited damage to your victim's head and body. It was submitted that compared to other cases where there have been repeated and numerous blows and kicks, this was, by comparison, not a brutal and sustained beating.

45 It was accepted that your post offence conduct involving the keeping and disposing of Mr Farrell's body aggravated your offending. As to this, it was submitted that you had a fear of being disowned by your family and going to gaol, which informed your decision-making and conduct after Mr Farrell's death.

46 As to the relevance and impact of your compromised mental functioning, it was acknowledged that your Stimulant Use Disorder, as evidenced by the use of self-ingested methamphetamine, is interwoven with the conclusions of Mr Armstrong that you suffer from BPD. Consequently, it was submitted that, when a combination of a significant mental disorder such as BDP is combined with heavy illicit drug use, you should be entitled to a moderate application of Verdins[1] principles one and three.

47 With respect to your prospects of rehabilitation, it was submitted that you have shown genuine remorse, and a full acceptance of responsibility, for your offending conduct. Counsel relied on the opinion of Mr Armstrong in concluding that, having reflected on your offending behaviour, you now have full comprehension as to the consequences of your behaviour as your victim is now deceased. He reports that, "not a day passes where he does not question his decisions and actions. Mr Tiumalu admits that for a long time he has wished he could turn back time. In my view his remorse is genuine...". Furthermore, it was noted that you have taken some positive steps towards your rehabilitation whilst on remand, and that these are positive indicators for the prospects of that rehabilitation.

48 Although it was conceded that expressions of your remorse were delayed, as evidenced by the digging of graves and your intention to bury the deceased, your Counsel points also to the letter you wrote to the Court, which it is said shows your acceptance of responsibility and remorse. Through your Counsel you provided an apology to your victim's family, and the community. As noted, you have participated in appropriate drug and alcohol programs, which have been described as providing promising outcomes.

49 It was noted that you were initially charged with the offence of murder, and that shortly after a necessary committal hearing, the case resolved with you indicating a plea of guilty to manslaughter, with agreed facts. Thus it is submitted, that your plea should be regarded as having been made at an early stage. Added to this is the submission that your plea of guilty avoided the need for a trial, and that the utilitarian value of the plea facilitated the course of justice.

50 Accordingly, it was submitted that the Court should accept your prospects of rehabilitation as being reasonable to good, especially with further drug and alcohol supports, along with education. Adding to this was the emphasis placed on your lack of prior criminal history, all pointing towards the likelihood you will not commit serious offending again.

51 Your Counsel also relied on the principle of parsimony, and an application of the principle set out in the case of Worboyes,[2] which allows for a plea of guilty entered during the currency of the pandemic to be worthy of greater weight in mitigation than a similar plea entered at a time when the pandemic was not impacting the community and the courts.

52 The prosecution relied on written sentencing submissions, supplemented by oral submissions during the hearing.

53 As to the objective gravity of your offending, the prosecution submitted that by its very nature your offending was grave as it resulted in the death of Mr Farrell. It was submitted that your disproportionate, violent response elevates the objective gravity of your offending. It was submitted that there is nothing suggesting that Mr Farrell was a threat to you, and your offending should be considered in that light.

54 As to moral culpability, it was accepted that your offending exceeded the eviction arrangement with Mr Jackson which included a foreseeable assault, but not the death of Mr Farrell. It was pointed out that, having physically attacked Mr Farrell, the surrounding circumstances were "grim". It was emphasised that you put Mr Farrell into your vehicle and left him there until he died and failed to get him any help. Furthermore, you dug holes in the ground in which you intended to dispose of his body, being an aggravating feature. Further, it was submitted that you had an initial absence of remorse and insight, an absence of empathy, and lacked basic humanity. Accordingly, it was submitted by the prosecution that your moral culpability is high.

55 It was acknowledged that your plea of guilty was entered soon after the committal hearing.

56 As to your remorse, it was accepted that your plea of guilty, along with matters set out in the psychological report and your letter, are indicators of remorse. However, it was submitted that your expressions of remorse came "late to the party", as did the letter you wrote to the Court. Furthermore, it was submitted that your attempt at shirking some responsibility for your actions, as conveyed to Mr Armstrong, should have the effect of tempering the Court's conclusion as to the fullness of your remorse.

57 With respect to your BPD, it was submitted that any nexus between this and your offending is difficult to separate from your alcoholism and Stimulant Use Disorder, each of which were operative at the time of your offending. It was submitted that it is hard to separate the question of your substance abuse and BPD, and as a result any moderation to the level of your moral culpability provided by these features should result only in a modest impact to the sentencing outcome.

58 As to your prospects of rehabilitation, it was submitted that these should be regarded as guarded, as they are contingent on your abstinence from drugs and alcohol. Accordingly, it was submitted that the protection of the community must be a relevant feature in relation to the sentencing exercise.

59 It is well understood that the circumstances of the offence of manslaughter can vary widely, and accordingly it can be difficult to identify current sentencing practices for such offending.

60 In this instance, I accept that your unlawful and dangerous acts in assaulting Mr Farrell were limited in scope compared to some more aggravated instances of this crime. The agreed facts placed before this court indicate that you slapped Mr Farrell once and punched him twice. As it turns out, those blows led to his death.

61 I take into account that in killing Mr Farrell you did not use a weapon, apart from your hands. I also take into account that the assault was not sustained but was over relatively quickly. There is no evidence to suggest that you intended to assault him before you went to the house, with the intention of evicting him at the instigation of Mr Jackson. I also clearly accept that you did not intend to kill Mr Farrell. I accept that the assault occurred when you lost your temper, in the spur of the moment. Thus I accept that your offending assault on Mr Farrell appears to have been spontaneous and not pre-planned.

62 Taking into account all of these factors, I am of the opinion that the seriousness of your offending should be seen as being at the mid-range for offending of this kind.

63 In assessing your level of culpability, I take into account that, in undertaking the planned eviction of Mr Farrell from the house, you appear to have been doing a favour for a friend. However, you did enlist the help of another, presumably to add weight to the effort, and add to the intimidating effect of what you were asked to do. There is no evidence that you intended to assault Mr Farrell when you went there.

64 It is of significance to the assessment of your level of moral culpability that you did not seek medical help for Mr Farrell after you had assaulted him. The evidence establishes that although he was injured, he was still alive for a period following the assault. You could have made sure he received medical treatment and given him a chance of survival with the simple act of dropping him at a hospital. However, you doubtless understood that his survival would have inevitably identified you as the person who attacked him. Your failure to ensure help for him led to his death. Your actions were reprehensible and deserve condemnation. In my opinion, this circumstance heightens the level of your culpability.

65 Another factor of significance in aggravating your culpability is that you attempted to cover up the assault on your victim, and the fact he had died. After some considerable time following your assault on Mr Farrell, and after he had died, his body was taken to the backyard of a house where you intended to bury him. You began digging a grave. It can only be inferred that by taking these steps you intended to continue to cover up your crime, the consequence being that your intention was to evade responsibility for what you had done. Equally as significant was that by covering up your crime, you must have known that Mr Farrell's family and friends would never know what happened to him, nor be able to at least have some degree of comfort by having the return of his remains. You wanted to make his body disappear. In this regard, your actions were cruel, lacked humanity and must be condemned and denounced as utterly unacceptable. At the same time, I accept that your actions were unsophisticated, and that there were witnesses to the assault that took place, and the later digging of the grave, which made it more likely that eventually your crime would be revealed. You were aware of the possibility of your exposure and arrest as evidenced by a conversation you had with another person in which you said it was only a matter of time and despite that belief you took no steps to hand yourself into police.

66 Mr Armstrong also noted that you have reflected on your actions in the aftermath of Mr Farrell's death, and whilst being preoccupied with the risk that, had you made admissions of the crime, you may have been disowned by your family or gone to gaol, you now accept that these must be regarded as factors aggravating the crime you committed.

67 In assessing your level of moral culpability, I conclude that that your level of culpability is significant. However, in making that assessment I indicate that I accept the evidence provided by Mr Armstrong, as noted above, as to your suffering from BPD and Stimulant Use Disorder. I am prepared to accept that these factors impaired you to some extent from making calm and rational choices and from thinking clearly about not only your actions at the time you assaulted Mr Farrell, but also the circumstances that occurred following the assault. As a result I will extend to the sentence that will be imposed a modest application of principles one and three as expressed in the case of Verdins.

68 I also accept and take into account the principle of parsimony, as well as to some extent an application of the principle set out in the case of Worboyes, which allows for a plea of guilty entered during the currency of the pandemic to be worthy of greater weight in mitigation than a similar plea entered at a time when the pandemic was not impacting the community and the courts.

69 Your co-offenders, Mr Jackson and Mr Haapakoski, have both been dealt with by the courts. I have noted the sentences imposed on both, but as they were sentences in respect of a common law assault, and assisting an offender for the offence of manslaughter, their sentences bear limited relevance to the sentence to be imposed upon you. Nevertheless, I have taken both sentences into account.

70 The Sentencing Act 1991 ('the Act') sets out a number of factors that are required to be taken into account in determining the appropriate sentence to be passed upon you. These include the passing of a sentence that gives consideration to punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community.

71 It is to be noted that both the prosecution and defence, when approaching the sentence to be passed on you, accept that the only realistic outcome is a sentence of imprisonment to be immediately served. Given the circumstances of this case, there cannot be any dispute about that approach.

72 As to general deterrence, denunciation and just punishment, each of these purposes plays a significant role in the formation of the appropriate sentence to be passed on you. The violence that you perpetrated against Mr Farrell was completely unjustified, was committed on a person who was unknown to you and involved a forceful attack to his head. It appears that you were physically larger, and stronger than your victim. You were asked to stand over him and eject him from the premises. To do that you no doubt were tasked to intimidate him, in company with another, and doubtless, use force if required. Such violence as you did employ must be generally deterred in the community and denounced as utterly unacceptable. You killed a man with your bare hands, and then tried to hide your crime. I find it hard to accept that you were ever physically scared of him, or intimidated by him, in circumstances where you and your helper clearly outnumbered him. You lost your temper and reacted with strong violence.

73 As to the question of specific deterrence and protection of the community, you have no previous criminal history or previous significant antisocial behaviour involving violence. You appear to be genuinely remorseful for your conduct, which led to the death of another human being, although in assessing this aspect I am troubled by your failure to seek assistance for Mr Farrell, and that you took steps to forever cover up your crime and leave your victim's family wondering what happened to their loved one. You had plenty of time to reflect on these matters but still attempted to cover up your crimes.

74 However, at the same time, I accept that you have taken some formative steps to address your drug and alcohol abuse, and you have a supportive family, and can only hope that these efforts will increase your prospects of rehabilitation. I also take into account that the compromised level of your mental functioning contributed to your failure to think clearly about the circumstances.

75 As to the question of rehabilitation, I assess your prospects as reasonable, and open.

76 Turning to the level of culpability for your offending, it is to be clearly noted that you have pleaded guilty to the offence of manslaughter.

77 You do not have a previous criminal history. You appear to be ashamed of your conduct, and realise you unjustifiably overstepped the mark when you lost your temper. In coming to this conclusion, I have taken into account that your expressions of remorse came in late in the piece, but that having been said, it is of importance that you have reached that position. Furthermore, it is to be clearly acknowledged that you have pleaded guilty to this offence, and in doing so have saved your victim's family from enduring a contested trial, as well as representing a saving to the community.

78 For these reasons, on balance, in my opinion aspects of special deterrence and protection of the community are clearly relevant, but are not required to be given undue weight in the sentencing calculus.

79 As to the question of parsimony of the sentence to be imposed, I have taken this matter into account. I have also taken into account that Mr Armstrong is of the opinion that you are, and will be, a vulnerable prisoner. I accept the conclusion of Mr Armstrong that you are likely to live in fear for your safety in the prison setting, and that due to your personality factors and compromises to your mental functioning already discussed, there is a risk that you will find the serving of a sentence of imprisonment burdensome and particularly arduous. There remains a risk that your mental health condition may deteriorate during the time you spend in custody, unless you receive mental health treatment.

80 Finally, in assessing the appropriate sentence to be passed on you I have had regard to a number of previous sentences passed in cases of manslaughter. However, as is often observed, the circumstances of manslaughter can vary widely which makes it difficult to establish a useful comparative pattern with respect to the sentence that must be passed on you.

81 I note, for example, the cases of Philp v The Queen[3] and Mitchell v The Queen.[4] In the former case, the Court of Appeal refused leave to appeal in relation to the trial judge's sentence of nine years' imprisonment with non-parole period of six years imposed for a plea of guilty to manslaughter, in circumstances that involved the applicant and his co-offenders driving to the deceased's property, intending to steal cannabis and cash from him, ultimately entering the premises uninvited, tying up and assaulting the deceased and stealing property from him. He was found dead almost a week later, having suffered multiple blunt force trauma injuries. In the latter case, the Court of Appeal refused leave to appeal in relation to the trial judge's sentence of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The applicant in that case had again pleaded guilty to manslaughter, in circumstances involving a prolonged assault on the deceased, who owed money to the applicant and his co-offender for drugs. The applicant had an extensive previous criminal history, including for violence. The deceased was kicked and punched multiple times before being driven to a second location, whilst bound in the boot of a car, where he was again assaulted and held under water. His body was left there and found some days later.

82 After considering all relevant factors put forward and the purposes of sentencing, you are sentenced to be imprisoned for 7 years and 6 months.

83 I order that you serve 5 years' imprisonment before being eligible for parole.

Section 6AAA declaration

84 I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 10 years' imprisonment with a non-parole period of 7 years and 6 months.

85 I further declare that that you have served 634 days of pre-sentence detention, not including this day.

86 A disposal order was sought by the prosecution in relation to various items under ss 77(1) and 78(1) and (1A) of the Confiscation Act 1997 (Vic). As confirmed by my orders dated 22 February 2023, as you have been convicted of a Schedule 1 offence, and I am satisfied that the items listed in the Schedule were used or were intended to be used in or in connection with the commission of the offence, or were derived or realised, directly or indirectly, by you or another person, from the commission of the offence, I ordered the forfeiture of the property to the State, to be placed in the custody of the Chief Commissioner of Police for 28 days where it may be tested and analysed and then destroyed.

[1] R v Verdins [2007] VSCA 102.

[2] Worboyes v The Queen [2021] VSCA 169.

[3] [2017] VSCA 320.

[4] [2018] VSCA 158.