DPP v Vega [2015] VSC 683

2 The charge is brought pursuant to s 325 of the Crimes Act 1958 (Vic). The principal offender, Scott McDonald, is charged with murder, and your conduct assisted him after the commission of that crime.

3 The maximum available sentence is 20 years' imprisonment. You were originally charged with murder and have spent nearly 20 months in prison on remand.

4 At 7.24 am on Tuesday, 1 April 2014, Michael Jones was shot in the chest by Scott McDonald.

5 At the time of the shooting, Mr Jones had just left his home in Lancewood Avenue in Heidelberg West, walked eastwards along Lancewood Avenue, and then turned left into Ebony Parade, where he continued to walk east until he reached the intersection with Blackwood Parade and was confronted by Mr McDonald in his maroon Holden Commodore.

6 Mr McDonald raised a sawn off shot gun to the driver's door window sill and shot Mr Jones, before quickly driving away.

7 You were seated next to Mr McDonald when he performed that act, and, subsequently, you took steps to assist him in avoiding apprehension and prosecution for that crime.

8 A nearby motorist, who observed the deceased lying on the ground, contacted emergency services. Police and ambulance paramedics arrived within a short time after the shooting, but were unable to resuscitate Mr Jones. He was declared dead at 7.35 am.

9 The background to this shooting was that you were residing with Mr McDonald and his partner, Maddison Power, at their premises at 6/10 Coral Street, Heidelberg West, pursuant to a short term arrangement.

10 Mr McDonald is said to have rescued you from a rural property in Greenvale, which was described as a 'farm', but was a location where amphetamine manufacture was occurring.

11 You had been addicted to amphetamine-based substances for most of your adult life and you were also a heavy consumer of alcohol. You were being exploited at the Greenvale property because of your drug and alcohol dependency and inability to leave.

12 You were permitted to leave with Mr McDonald on your birthday on 26 March 2014, and a plan was then developed to start a new life in Tasmania with Mr McDonald and his family and thereby break away from amphetamine use.

13 It was decided that, in order to finance a move to Tasmania, items would be stolen from the Greenvale property, which could then be on-sold. Therefore, some amphetamine processing glassware, chemicals, and a Winchester rifle and ammunition were stolen from the Greenvale property on 27 March 2014.

14 You and Mr McDonald then attempted to sell the stolen property to some contacts Mr McDonald had in Heidelberg West.

15 The deceased, Michael Jones, was one of a number of men introduced as potential customers for your stolen accoutrements through discussions at 78 Ramu Parade, Heidelberg West, and at a factory at 32 Korong Road, Heidelberg West.

16 During the negotiation in the early hours of 1 April 2014, Mr Jones went with you and Mr McDonald to look at the glassware at Mr McDonald's home and to pursue negotiations over the contraband. He was returned by you a short time later to the factory premises at Korong Road.

17 Mr Jones told his associates of plans to meet the pair of you in the park later that morning. He was last sighted by his associates at around 4.30 am, when he was deposited at his own address in Lancewood Street.

18 There appears to have been a concern by you and Mr McDonald that you were being set up by participants of the factory meetings, including Mr Jones. It seems that you and Mr McDonald believed that a dangerous situation had developed.

19 Mr McDonald armed himself with a shotgun and ammunition.

20 The pair of you left 78 Ramu Parade on foot. You went to wait in a park nearby Mr McDonald's Coral Street unit. Mr McDonald's partner, Ms Power, and her son, were in occupation at the Coral Street unit on the night of these events.

21 There was telephone contact between your phone and the deceased's phone shortly after 4 am, but you were not the only person using your phone that night.

22 At around 5.30 am, whilst waiting in the park to see if Mr Jones would return, Mr McDonald witnessed Mr Jones and his associates carrying out a burglary and home intrusion on his Coral Street unit, apparently looking for the stolen chemicals and glassware. At 5.41 am, you rang '000' at Mr McDonald's request, although the call did not connect.

23 The home intrusion is said by the Crown to be the motive for the shooting of Mr Jones by Mr McDonald, especially since Ms Power and her son were present upstairs in the unit.

24 You and Mr McDonald returned on foot from the park to the Ramu Parade address where the car was parked. You then left the Ramu Parade address with McDonald in his car at sunrise.[2]

25 The movements of Mr Jones were captured on CCTV cameras as he made his way on foot to the location where he ultimately met his death.

26 Mr Jones was shot close to where his body was found.

27 A shotgun cartridge was located nearby and ballistic evidence indicated a range of fire of four to five metres.

28 Aside from you, Mr Vega, there were no other eyewitnesses to the shooting.

29 After shooting the deceased, Mr McDonald drove away with you as his passenger.

31 You, Mr Vega, engaged a relative to dispose of the sawn off shotgun to assist Mr McDonald in avoiding detection of his crime.

32 In the company of Mr McDonald, you inquired into interstate travel options in the days after the murder and departed to New South Wales and then Queensland. This was also to avoid being linked to the murder.

33 You both returned to Victoria on 8 April 2014, and were arrested on 13 April 2014 at Meadow Heights.

34 You were interviewed twice by police. During the first interview on 13 April 2014, you denied being present when Mr Jones was shot, but did describe some of the background events which took place on 30 March 2014 and 1 April 2014.

36 You maintain, through your counsel, before me that this further interview was sought by you due to coercion from Mr McDonald, who was remanded in custody to the same prison.

37 You changed your account in the second interview to include an acknowledgment that you were present when Mr McDonald shot Mr Jones, inventing details supportive of a claim of self-defence by Mr McDonald.

38 You said that Jones had weapons at the factory and later at the scene where he was shot.

39 Prison records show a concern to be separated from Mr McDonald in prison.

40 Subsequently, with the benefit of legal advice, you offered to give evidence on behalf of the Crown against Mr McDonald.

41 Your charge was ultimately reduced from that of murder to that of 'assist offender'.

Plea of guilty and undertaking to give evidence

42 You offered to plead guilty to the lesser charge on 9 September 2014, prior to committal proceedings. In the event, your offer was finally confirmed by the Crown on 17 November 2015. You are therefore entitled to have your offer to plead guilty categorised as having been made at the earliest practicable opportunity.

43 You have now provided a police statement,[3] which was tendered at your plea,[4] which reverses your earlier support of a claim of self-defence by Mr McDonald.

44 You said in that statement, which you adopted as true and correct before me, that you had falsely claimed that Mr Jones had a gun at the factory and later out in the street where he was shot, due to threats and coercion from Mr McDonald. That coercion was also applied on his behalf by others in prison, according to you.

45 Corrections Victoria records showed complaints and a request for transfer away from Mr McDonald.[5]

46 The Crown accepts that your recent signed statement is a true account of what took place, and you have undertaken to assist the Crown by giving evidence in their prosecution of Mr McDonald on the charge of murder.

47 You have given this undertaking in the knowledge that, if you fail to abide by your undertaking, you could be re-sentenced to a greater sentence than that which I am about to impose.

48 The Crown has submitted that your offer of assistance should be regarded as significant.

49 In the course of a thorough and comprehensive plea, your counsel, Mr Kassimatis, produced a chronology of significant events since October 2013, including steps taken in these proceedings once you were charged with murder.[6]

50 He also tendered a detailed sentencing submission setting out the key principles upon which he relies.[7]

51 A report of Mr Jeffrey Cummins, psychologist, dated 19 January 2015, was tendered on your behalf,[8] and excerpts from your Corrections Victoria prison record were also referred to.[9] The psychological report had been obtained for a drug-related matter dealt with at the Melbourne Magistrates' Court in February 2015.

52 It appears that you have battled long-term drug and alcohol abuse. You are now aged 44.

53 You have also suffered somewhat unstable mental health, although the aetiology of that is uncertain.

54 You have supportive parents and come from a loving family.

55 You have a teenage daughter, son and stepson from a previous long term relationship. That relationship broke down about 6 years ago.

56 You were educated at the local schools in Broadmeadows, and left school at 15 to do a bricklaying apprenticeship with your father. You became a qualified bricklayer and worked in that field on and off until around 2012, when you fell out with your father over your drug use. You then went onto Commonwealth benefit payments.

57 You suffered episodes of physical trauma in a car accident, and as a victim of a serious assault in your thirties.

58 You suffer shoulder soreness since that car accident.

59 The major obstacle to stability in your life has been drug and alcohol dependency. Your past drug abuse has included long term intravenous amphetamine use.

60 The period that you have spent on remand since your arrest on 13 April 2014 is your first experience of imprisonment and your longest period of being free of drugs and alcohol as an adult.

61 You have used your time on remand wisely and have managed to remain abstinent whilst taking advantage of programs offered for your rehabilitation. You are medicated with mood stabilising medication.

62 You have been visited by your parents and 16 year old daughter during your time on remand, and Mr Kassimatis submitted that I should regard your prospects for rehabilitation as reasonable.

63 He submitted that the nature and circumstances of your offending are less grave than in other cases where, for example, disposal of the body is part of the assistance given where the principal offender is charged with murder. He pointed out that the conduct relied on by the Crown is limited to flight and disposal of the weapon. I note, however, that your presence in the car at the time of the shooting meant that you were under no illusions as to the gravity of what had taken place and the significance of the choices you made thereafter must have been starkly apparent. In this respect, there are some factual similarities to the sentencing decision of R v Prentice by King J in 2008.[10]

64 Mr Kassimatis submitted that your plea of guilty at the earliest opportunity and your offer of assistance entitle you to utilitarian discounts, but also signify some measure of remorse. The Crown accept that your offer of assistance has significant value.

65 Your counsel emphasised the absence of significant prior history for violence, and the fact that this has been your first experience of prison.

66 The thrust of Mr Kassimatis' comprehensive written and oral submissions was to persuade me that the sentence that I impose should allow for the possibility of release on parole immediately, taking into account the pre-sentence detention of 582 days.

67 The Crown does not seek to dissuade me from this course.

68 In fixing your sentence, I must apply s 5(1) of the Sentencing Act 1991 (Vic) (the 'Act'), which provides that the only purposes for which sentences may be imposed are: just punishment, specific and general deterrence, rehabilitation, denunciation, and protection of the community. I have also had regard to the factors set out in s 5(2) of the Act.

69 In considering the appropriate sentence to be imposed in this case, I am particularly mindful of your plea of guilty, and offer of assistance to the Crown.

70 I regard your prospects for rehabilitation as reasonable in light of your efforts towards reform whilst on remand.

71 Your prior offending appears to be primarily related to past long-term drug abuse, and whilst this may be a factor telling against rehabilitation, you have reached a point where your future safety and well-being may depend on co-operation with the authorities and removal from drug-using associates.

72 I accept that you hold genuine fears for your own safety and that of your family as a result of your offer of future co-operation in the prosecution of Mr McDonald.

73 This finding deserves significant weight in mitigation of sentence, because it is likely that your fears will persist after your release from prison. I note that your prior statements will likely mean that the evidence you give may be subject to significant cross-examination, if and when you are called as a prosecution witness. The untruthful accounts you gave to the police in each of your formal records of interview do you no credit.

74 In considering the sentencing range for this offence, I have been assisted by comparative cases provided by the prosecutor, Ms Hassan, and by Mr Kassimatis and Ms Burchill.

75 I agree with Mr Kassimatis' submission that the charge of 'assist offender', where it relates to assisting the principal after a murder is a serious offence.

76 The gravity of the offence is a result of the effect of obstruction of the criminal law and its enforcement.[11] The serious nature of the principal offence is a relevant consideration, especially where that offence was witnessed by you, but I must not sentence you for conduct other than that which is properly encompassed by the charge before me.[12]

77 In considering comparative cases, I have particularly focused on cases where the principal offence was one of murder and where the accused pleaded guilty and gave an undertaking to give evidence on behalf of the prosecution.[13]

78 The offer to testify on behalf of the Crown is long acknowledged as a matter entitling a discounted sentence, which may range from being a significant discount to a very substantial discount.[14]

79 In your case, the prospect of giving evidence in the trial of Mr McDonald has left you frightened for your own safety and that of your family, and I consider that a substantial discount is warranted.

80 In reviewing the cases provided to me, I have been assisted by the range of sentences represented by those cases as an indication of current sentencing practice, whilst keeping in mind the limitations of such an exercise.[15]

81 In the end, of course, each case turns on its own facts,[16] but the cases put forward by counsel have informed my view as to the appropriate sentence.

82 In R v Newton,[17] the accused was a passenger in a car with three other persons, one of whom was a drug dealer who the others believed had earlier sold them fake heroin. An altercation broke out, and the drug dealer was stabbed a number of times by another passenger, and he later died of those wounds. The accused subsequently cleaned the car and disposed of the deceased's belongings. When interviewed by the police, the accused made full admissions. Flatman J accepted that the accused's criminality was at the lower end of the scale, and His Honour also took into account the accused's undertaking to give evidence for the Crown.

83 In R v Brown,[18] the accused had told police that he had not seen the deceased for months and was not aware of any conflict between the deceased and the offender, when in fact he had been a passenger in a vehicle when the deceased had been stabbed and killed by the offender. He was present when the deceased's body was placed in the bush, then he and the offender returned to Melbourne. The accused subsequently admitted that his statements were false and provided an account of the murder, explaining that he was afraid that the offender would kill or harm him if he had revealed the truth. He pleaded guilty and agreed to give evidence for the Crown.

84 In R v Saunders,[19] the accused had assisted the offender and his girlfriend by harbouring them for a night, and driving them to a remote location the next day and helping them bury the body in a shallow grave. He initially denied knowledge of the murder, fearing for the safety of his wife and child, but provided police with assistance which led to the arrest of the offender and his girlfriend. Following their arrest, the accused gave full admissions of his involvement, took police to the grave, and undertook to give evidence against the offender. Relevant to Curtain J's sentencing decision was the fact that the accused would have been exposed to considerable risk if he were returned to gaol.

85 His co-offender, who did not give an undertaking to give evidence for the Crown, received a custodial sentence with a non-parole period.[20]

86 My review of the comparative sentencing decisions and current sentencing practice indicate that lesser sentences have been imposed where:

(a) the offence is at the lesser range of offending;

(d) the accused has co-operated with police or given an undertaking to give evidence for the Crown;

(e) in assisting the police or giving evidence for the Crown, the accused and his family would be at greater risk of harm;

(f) the accused has a lack of significant criminal history; and

(g) the accused has reasonable prospects of rehabilitation.

87 In your case, Mr Vega, I am persuaded to impose a more lenient sentence than this crime might otherwise warrant because of a combination of factors favourable to you.

88 In particular, your early offer to plead guilty to the current charge, your undertaking to assist the Crown in the future prosecution of Mr McDonald, and the extent to which that offer signifies some degree of remorse. I regard your prospects of rehabilitation as reasonable in light of your progress in custody. I take into account as especially significant the concerns you hold for your own safety and that of your family as a result of the undertaking you have made.

89 You are sentenced to be imprisoned for two years and four months.

90 Pursuant to s 11(1) of the Act, I fix a minimum non-parole period of 582 days.

91 Pursuant to s 18(1) of the Act, I declare that, including today, you have served 582 days of pre-sentence detention, and I direct that the period to be reckoned as already served under the sentence be noted in the records of the Court.

92 I declare pursuant to s 6AAA of the Act, that, but for your early offer to plead guilty to the charge before me, I would have imposed a sentence of three years and six months with a non-parole period of 28 months.

93 Pursuant to s 5(2AB) of the Act, I announce that I am imposing a less severe sentence than I would otherwise have imposed because of your undertaking to give evidence in the forthcoming trial of Mr McDonald, and I direct that the undertaking and its details be noted in the records of the Court.

[1] The name of the offender has been replaced with a pseudonym.

[10] [2008] VSC 623: King J considered that the offence fell within the middle or higher range of offending, and that a custodial sentence was appropriate in the circumstances where the accused had been present at the time of the shooting, and subsequently assisted his co-offenders in burning the deceased's body and incriminating evidence, used the deceased's ATM card, and destroyed other relevant evidence in the days following the murder.

[11] DPP v Hornjak & Anor [2013] VSC 114 [12] (Kaye J).

[12] R v Kitchin [2001] VSCA 66 [36] (Brooking JA); R v Connally [2009] VSC 452 [15] (Kaye J).

[13] See, including, R v Anderson [2010] VSC 485; R v Culleton [1999] VSC 478; R v Connally [2009] VSC 452; R v Prentice [2008] VSC 623; R v Newton [2002] VSC 182; R v Brown [2005] VSC 63; R v Saunders [2007] VSC 298; R v Newton [2002] VSC 182; DPP v Richardson [2007] VSC 221.

[14] R v Golding (1980) 24 SASR 161; R v Johnston (2008) 186 A Crim R [18] and [21] (Nettle JA).

[15] DPP v Arney [2007] VSCA 126 [14] (Nettle JA).

[16] R v Kyu Hyuk Kim [1999] VSCA 65 [32] (Brooking J).

[17] [2002] VSC 182: Sentence imposed of 18 months' imprisonment, suspended for two years.

[18] [2005] VSC 63: Sentence imposed of 18 months' imprisonment, suspended for two years.

[19] [2007] VSC 298: Sentence imposed of 304 days' imprisonment, equal to pre-sentence detention.

[20] DPP v Richardson [2007] VSC 221: Sentence imposed of 3 years' imprisonment, with a non-parole period of 1 year and 8 months.