DPP v Williamson [2018] VSC 172

2 The offences were committed by you and your co-offender, Jonathon Cooper, on 14 September 2015 at 1028 Barkstead Road, Springbank. The deceased, Kenneth Handford, an elderly widower, lived alone in a cottage there. He was a World War II veteran who had served with the RAAF. He was 89 years old at the time of his death. He is survived by an adult son and daughter, five grandchildren and three great grandchildren.

3 Your co-offender, Cooper, was sentenced by me on 21 April 2017.[1] His sentence was then increased by the Court of Appeal on 12 February 2018.[2] Adam Rowe, who pleaded guilty to assist offender, was sentenced on 8 July 2016 by T Forrest J.[3]

4 In sentencing you, I have had regard to the Crown Opening for the plea hearing that was read in open court, along with the depositions and submissions of both parties and the exhibits tendered on the plea. I have also paid attention to the police statement made by Cooper and your counsel's cross-examination of Cooper and Rowe on a pre-trial Basha hearing as well as the judgment of the Court of Appeal in the matter of Director of Public Prosecutions v Cooper.[4] I will deal with certain disputed matters arising from Cooper's account in due course.

5 You were aged 38 at the time of the offending and your co-offender Cooper was aged 28. You had been associating with one another on a daily basis for some months and using ice (methamphetamine) together.

6 The offending by yourself and Cooper involved a targeted aggravated burglary in which the pair of you broke into the deceased's home armed with a knife, late at night when you expected him to be asleep in bed. The Crown accepted that the original plan was to break in and search for money, and that the knife was brought along in case you needed to gain compliance. The charge of aggravated burglary was therefore based on being armed with a knife, with knowledge or recklessness as to the presence of a person within the premises at the time of entry.

7 The deceased was selected by you, Williamson, as a potential victim for the aggravated burglary because of your previous contact with him, and you shared your knowledge about his circumstances with Cooper. Cooper had not previously known the deceased. You had come to know Mr Handford when you were employed harvesting potatoes on the farm owned by the Maher family. Mr Handford was a trusted employee and friend of the Maher family but you did not get along with him. In 2014 your employment was terminated when you were suspected of having stolen from Mr Handford's wallet. You claimed that although Mr Handford later found his wallet, he continued to accuse you of having taken money from inside the wallet. It appears that you disliked Mr Handford ever since that episode.[5]

8 Mr Handford was an easy target for the aggravated burglary given the relative isolation of his residence and that he was elderly and lived alone. From your knowledge of him, you believed that he was likely to be in possession of a large sum of money because of his habit of not using banks.[6]

9 On 13 September 2015 you, Cooper and Cooper's partner, Tracey Shepherd, went to Ormond Road, Springbank, to purchase another car for spare parts. After arranging the purchase but whilst still in the Springbank area, the three of you drove past the deceased's house and you pointed out its location to Cooper.

10 Subsequently, a plan was cemented between you and Cooper that the pair of you would visit the premises and break in late at night when the deceased was likely to be asleep. Cooper got hold of a double-edged knife and a balaclava and met up with you at your home in Ford street later in the evening. The pair of you used ice together and discussed the planned 'run through'[7] in the presence of Jessica Tippet. Cooper displayed the knife he had brought along with him in order to effect the crime. The motive for the planned aggravated burglary and theft was to obtain funds to support your drug-using lifestyle.[8]

11 At some point late that evening Cooper tapped his watch and suggested that it was time to go. You each donned jackets, Cooper carried the knife and you took a balaclava. The pair of you left in your green Subaru station wagon,[9] and parked some distance from 1028 Barkstead Road.

12 You both approached the house carrying torches, and you, Williamson, wore the balaclava to disguise your appearance. It was around a quarter to one in the morning when you broke into the house through the rear door. You were fully aware that Cooper had the knife with him when you broke into the deceased's home.

13 The pair of you searched by torchlight for money, and whilst doing so, the deceased woke up. Cooper shone his torch in the face of the deceased and hit him with it. When the deceased rolled over in bed, Cooper grabbed his hands and held them down behind his back. As he struggled and protested, Cooper accused him of being a paedophile, which he denied. There was a further struggle in which Cooper hit the deceased's hand with his torch as he tried to reach for his wallet beside his bed.[10] The pair of you then tied the deceased's hands behind his back with a dressing gown cord and trussed his ankles together with a nylon cord which was then anchored to the bed. Cooper alleged that you forced a gag into the mouth of the deceased. The Crown, in settling the factual basis for your plea, declined to seek to prove this fact so in those circumstances I will not make that finding.

14 Cooper also alleged that you, Williamson, were searching the room for valuables in between attempts made by the pair of you to subdue the deceased, and that you had rolled your balaclava up as you searched around. He claimed that during these events the deceased recognised you and spoke your name.

15 Cooper alleged that whilst he held the knife pointed towards the deceased, you appeared to shrug your shoulders and give a nod thereby encouraging Cooper to inflict the stabbing.

16 The Crown resolved the factual basis for your plea by declining to contend that you signalled your encouragement of the stabbing by shrugging or nodding your head. Therefore, your counsel submitted that I should not find that particular fact of aggravation against you in the circumstances.[11] I accept that submission.

17 Mr Cooper admitted in his signed statement, that in the course of the encounter with Mr Handford, he became extremely angry, yelling 'I am the product of your kind'. He ultimately stabbed the deceased repeatedly in the back whilst the deceased was tied up and unable to defend himself. At some stage during the attack the deceased ended up on the floor whilst still restrained.

18 Cooper said that he stabbed the deceased mistakenly believing him to be a perpetrator of child sexual abuse.[12] The extreme violence of the attack was said to be triggered by anger as a result of his own experience of childhood sexual abuse. It was common ground between the parties at the plea hearing for each of you that any suggestion that Mr Handford was a paedophile was totally untrue. At any event, in sentencing Cooper, I did not treat his misplaced belief about that matter as a mitigating circumstance but noted that it explained his loss of control at the time of the stabbing. I will deal with the basis for Cooper's mistaken belief later.

19 The deceased was left tied up on the floor, grievously injured and died alone. A post mortem analysis of the deceased's cardiac pacemaker[13] revealed that the attack is likely to have occurred between 12.47 am and 12.53 am, and that death most likely occurred at 5.31 am.[14] This means that Mr Handford survived for four hours and 38 minutes until succumbing to the injuries that were callously inflicted upon him. He was observed by Dr Michael Burke, forensic pathologist,[15] to have suffered 13 stab wounds to the back, including penetrating injuries to the left lung and right kidney.[16] There were also other bruises and abrasions.

20 Before departing the premises, the pair of you stole any items of value you could find. The Crown alleges that $3,900 in cash was stolen from the deceased along with a gold chain and a number of prized war service medals.

21 The pair of you returned from the crime scene to the Ford Street house and showed Jessica Tippet the stolen wallets, jewellery and war medals taken from the deceased. She witnessed the counting of banknotes carried out in your bedroom where she was staying with you for the night. Cooper showed Tippett his bloodied clothing saying that he would need to burn it and admitting that he had stabbed the deceased. The pair of you told her that she would hear about the incident on the news as you had left him tied up, and he would not be able to get up and do anything.[17]

22 Cooper announced that he would keep the gold chain. The cash was split between the pair of you. You, Williamson, kept the war medals, which you gave to Adam Rowe to hide. These were later discovered by police on the day of your arrest, hidden behind a stove at the home of Adam Rowe.

23 Anita Maher, who together with her husband leased the cottage to the deceased and who regarded him as if he were family, became alarmed on 15 September 2015 when she could not get a response to telephone calls. Mrs Maher had the misfortune to discover Mr Handford's body lying on the floor of his bedroom with hands and feet still bound. The crime scene betrayed evidence of the pair of you having gone through drawers and furniture looking for valuables.

24 Several days after the murder, you, Williamson, confessed to Ms Brereton[18] that you and Cooper had bashed the deceased and tied him up, and that Cooper had stabbed him. You said to her that you and Cooper searched the place and stole cash and medals, and you split the cash between the two of you whilst you kept the medals. You encouraged her to provide a false alibi for you for the weekend that you committed the offences and you asked her to collect the medals from Adam Rowe and dispose of them.

25 On another occasion you were also overheard by Allan Brown discussing with Adam Rowe how you went to the deceased's house to take his life savings. You later made a false alibi statement to police on 25 September 2015 relying on Ms Brereton to back you up.

26 On 25 October 2015 you and Cooper were monitored by police discussing media attention about the crime.

27 You were both arrested and charged on 27 October 2015.

28 You were originally arraigned and pleaded guilty to s 3A murder, aggravated burglary and theft on 10 November 2016. On 18 November 2016 your co-accused, Cooper, was arraigned and pleaded guilty to common law murder, aggravated burglary and theft. However, in the course of the plea hearing on 7 and 8 December 2016, a dispute arose between yourself and the Crown as to the factual and legal basis for your plea, including as to your awareness of the knife being brought onto the deceased's premises, and whether you were present in the room when Cooper presented the knife and stabbed the deceased. It transpired after the matter was adjourned that you wished to withdraw your plea because of a misunderstanding of the basis of the plea, and because your instructions at that time about your role in the offending were inconsistent with the plea to aggravated burglary as particularised and inconsistent with a plea to statutory murder under s 3A Crimes Act 1958.

29 On 10 April 2017, you brought a formal application for leave to withdraw your plea. On 21 April 2017, after hearing evidence and submissions, leave was granted for this to occur with a trial date fixed for 2 October 2017. A draft indictment was prepared at that time charging you with common law murder, with s 3A murder as an alternative, aggravated burglary, armed robbery, theft and false imprisonment.[19]

30 After cross-examination of Cooper and Rowe at a Basha inquiry on 7 September 2017, you again changed course and resolved to plead guilty to a revised indictment. You entered a plea of guilty to the present indictment[20] on 12 September 2017.[21] A plea hearing was conducted on 10 October 2017 but your sentencing was deferred whilst awaiting the outcome of the appeal in the matter of Cooper. I take into account such delay as is not attributable to you in considering sentence, recognising that you have been held on remand over that period.

31 The Crown have said that the s 3A murder charge is composed of your presence and involvement in the uncharged armed robbery with the act(s) of violence comprised by Cooper stabbing Mr Handford whilst he was tied up and restrained.[22]

32 Your plea now admits presence in the room with Cooper when the deceased was stabbed, although you denied this at the time you sought to change your plea. You participated in the violent armed robbery that led to the stabbing of Mr Handford by Cooper. Cooper's plea of guilty to common law murder admitted that his actions in stabbing the deceased allowed the intent for murder to be established beyond reasonable doubt in his case. In your case the Crown have not sought to prove that you had the intent required for murder at the time that you participated with Cooper in the armed robbery and stabbing. It was Cooper who presented the knife to menace the deceased, and Cooper who ultimately chose to stab him when he was struggling and crying out. Nevertheless, your presence assisted and encouraged Cooper in carrying out this violent armed robbery, after helping to place restraints on the deceased's hands and legs. Your conduct was brutal and cowardly.

33 Despite submissions to the contrary made by Mr Johns QC, I am satisfied beyond reasonable doubt that you told Cooper at some stage in advance of the offending that Mr Handford was a paedophile, thereby encouraging his participation in the planned aggravated burglary.[23] Mr Johns QC did not dispute Cooper's past history of being sexually abused, but disputed that you ever told Cooper that Mr Handford was a paedophile. I consider that Cooper's account adhered to under cross examination, of being induced by this falsehood to make the home of an elderly man a target for the 'run through' has the ring of truth about it and involves a logical narration of the events preceding the stabbing.[24] Cooper's account of the extent of his anger at the time of the stabbing is also consistent with this mistaken belief. Your admission to psychologist Simon Candlish[25] that you felt responsible for leading Cooper to Mr Handford is consistent with Cooper's account that he became involved in the aggravated burglary at your instigation.

34 On Tuesday, 15 September, 2015 Mr Handford's body was discovered. It was to have been Mr Handford's 90th birthday. Mr Handford's family and friends are now haunted by the memories associated with that day.

35 The court received a large number of victim impact statements from family and friends, of Mr Handford some of which were read in open court.[26] The first bundle of victim impact statements tendered to the Court were from Peter Handford, Margaret Murray, Doreen Handford, Carmel Handford, Shae Murray, Anita Maher, Peter Maher, Joel Maher, Adrian Maher, Mary Maher, Kevin Maher, Barbara Carter and Margaret Gull.[27] There were four additional statements provided to the court, comprising three addenda to statements already tendered,[28] along with a signed statement from Joel Murray.[29]

36 The victim impact statements reflect the high regard in which Mr Handford was held. The murder of Kenneth Handford has had a shattering effect on his son and daughter and their respective families, as well as on his surviving brother and sister-in-law, and on the Maher family.

37 Kenneth Handford's son and daughter-in-law have felt unable to grieve properly because of the violent way he met his death. His daughter, Margaret Murray, said that nothing could have prepared her for the way her father died. Each of his grandchildren have been greatly distressed by the knowledge of what was done to their grandfather. Ronald Handford said that nothing can take his mind off the way his brother was murdered. Anita Maher who found Kenneth Handford's body cannot forget the traumatic image of what she saw that day. Crimes such as yours diminish the confidence of the community in the security and safety of their domestic lives.

38 Your personal circumstances do not provide much by way of explanation for your involvement in these serious crimes. Unlike your co-offender, Cooper, you have not suffered trauma and deprivation in your childhood and upbringing.

39 You are presently 41 years of age and were 38 at the time of the offences. Your parents appear to have been hardworking loving and responsible. They are now in their mid-sixties. Your father was a maintenance worker and now works casually as a truck driver and your mother was formerly employed in manual work. She suffers from Parkinson's disease and has not been able to visit you in prison. You have three siblings: an older brother, a younger brother and a younger sister. You have a good relationship with your sister.

40 You had a happy childhood and upbringing which included outdoor activities of the kind experienced by young people in rural communities - you played football and were taken hunting and fishing. You looked up to your father who provided a good role model for you. Unfortunately, your older brother has been in trouble with the law and has a history of drug abuse.

41 You completed Year 11 at Ballarat North Technical College and commenced an apprenticeship as a foundry moulder. Despite early promise, completing the four-year apprenticeship, and, staying on with the firm for a further three years, your job came to an end when the firm closed down. You had some temporary work in the same field in your twenties but became unreliable and lost jobs or left jobs because of drug use. Your more recent employment was on the potato farm where you met Mr Handford.

42 You have had two significant relationships. Between the age of 17 and 20, you had an intimate relationship with a female that ended when she formed an attachment to your older brother. This led to a rupture in the closeness of your connection to your older brother.

43 You met your second partner when you were aged 30 and stayed with her for three years. However, the relationship was not a healthy one and was primarily driven by mutual drug abuse. There were several separations, and you eventually ended contact with her.

44 You have smoked cannabis since your early teens and started using intravenous amphetamine after the break up with your first girlfriend. You ultimately graduated to methamphetamine use. You have also tended to abuse alcohol in the past, although you claim to have ceased this in the last ten years.[30] It seems you have been prone to depression over the course of your life and you have engaged in substance abuse to mediate your low mood.

45 You attempted to deal with your drug problems in 2012 when your general practitioner diagnosed you with depression and prescribed medication, but you did not persist with taking the prescribed medication and drifted back towards methamphetamines. Drug abuse has impacted on all domains of your life, impairing your work capacity and your personal relationships, disrupting your sleep patterns and your appetite, and causing low self-esteem.

46 You have a limited prior criminal history which includes various appearances for possession, use and cultivation of cannabis; a firearms storage offence and possess a prohibited weapon; criminal damage; recklessly deal with proceeds of crime; theft of a trailer; and fail to appear. You do not have prior convictions for violence.

47 A report by Simon Candlish dated 6 December 2016 was tendered at your plea hearing.[31] Mr Candlish had prepared his assessment before your application to change your plea. He reported that you expressed shame and remorse for the offending. However, this finding is compromised by the fact that you told Mr Candlish, contrary to your current instructions, that you were not present with Cooper at the time of the stabbing.

48 Mr Candlish performed a range of psychometric tests aimed at casting light on your personality profile and lifestyle, and, in part, on predicting the risk of future offending. He opined that test results showed you to be a person with substance abuse problems who was generally unhappy and pessimistic. He said that you present as a socially isolated individual with few personal relationships. Based on your self-report, he considered you met the criteria for Major Depressive Disorder and Stimulant Use Disorder (in remission in a controlled environment).[32] The extent to which your depression was a product of or a cause of your drug abuse or both was difficult for him to unravel. It is therefore difficult for the court to apportion much weight to depression as an explanation for your descent into crime, when your mental health has been inextricably linked with long term chronic drug abuse. Mr Candlish opined that you were a low risk of violent re-offending, but the significance of his report is reduced because of the instructions you gave at that time about your role in the offences.

49 A report of Mr Ian Mackinnon, forensic psychologist, was also tendered for your plea.[33] Mr Mackinnon saw you after your current solicitors took over the handling of your case. He diagnosed you as suffering Depressed Mood Disorder at the time of his assessment which he considered to be of long standing and currently of mild to moderate intensity. He also diagnosed a Poly-Substance Abuse Disorder which at the time of the offending appears to have been manifested by daily abuse of ice. This is now in remission in a controlled environment. Like Mr Candlish, Mr Mackinnon linked your depression to the chronicity of your drug abuse.[34]

50 Mr Mackinnon did not consider you to have an inherently antisocial character, noting the absence of prior violent offending. You told Mr Mackinnon that you were remorseful for your role in the offending and that looking back now it seemed to you that all of your morals had disappeared at the time of the offences.

the current charges reflect the behaviour of an individual neglecting his normal community and adult responsibilities, chronically distressed, habitually abusing illicit substances and acting in an uncharacteristically antisocial manner with little thought for the likely consequences of his actions upon himself, his immediate victims and the wider community.[35]

52 He observed that you committed the offences despite having had previous contact with the victim and his family.[36] However, he also noted that the time spent on remand had enabled you to improve your physical and mental health, despite ongoing mild to moderate depression.

53 Mr Mackinnon supported your prospects for rehabilitation to some degree, while also mentioning that you were at risk of relapse into poly substance abuse post-release if your circumstances at that time are not stable.[37] In the end I must make an independent assessment of your prospects for rehabilitation based on all the material before me, including your conduct since these proceedings have been on foot.

54 Aggravated burglary involving carriage of weapons and entry to occupied premises is regarded as objectively very serious in part because of the risk of violence ensuing once armed entry is gained even in the absence of a specific plan to engage in a violent confrontation.

55 This was a very serious example of aggravated burglary.[38] You exploited your knowledge of the deceased in selecting his home as the target for the offence and you involved Cooper for the purpose of breaking in late at night when it was likely that Mr Handford would be in bed. Knowing that Cooper was armed with a knife the pair of you forced entry into Mr Handford's dwelling through the back door.

56 Despite the crime of aggravated burglary being complete at the moment of entry, and notwithstanding that the agreed plan was to break in and steal rather than for a planned violent confrontation, the gravity of this particular aggravated burglary was made plain in the judgment of the Court of Appeal in Cooper.[39] Firm denunciation is warranted. It is important that others are deterred from offences of this nature by the imposition of a stern sentence.

57 Your moral culpability for your role in the aggravated burglary is high and you must be sentenced on the basis that you were the driving force behind it because of your past association with Mr Handford and because of your knowledge of his habits of keeping money in his possession.

58 This was also a grave example of the crime of statutory murder under s 3A Crimes Act as conceded by your counsel. Your criminal responsibility for statutory murder is based on your complicity in the armed robbery in the course of which Cooper fatally stabbed the deceased.[40] You are therefore criminally responsible although you did not inflict the stab wounds to Mr Handford. I acknowledge that consistent with the crowns acceptance of your plea to statutory murder, and the way the plea hearing was conducted, you should be sentenced on the basis that murderous intent has not been established and that you did not intend for Mr Handford to be killed when you embarked on the armed robbery with Cooper.

59 The fact that Cooper impulsively inflicted all of the stab wounds makes his role in the murder of the deceased significantly greater than yours. But despite the absence of murderous intent you assisted in tying up the deceased who was a vulnerable, elderly man, and you were present throughout the commission of the stabbing. You participated in the ransacking of the home and theft of personal belongings whilst Mr Handford was left to die. It was accepted on your behalf that your callous conduct in leaving your victim tied up and helpless after the stabbing was an aggravating feature of the offending.

60 Whilst I must avoid double punishment in apportioning sentences for the crime of statutory murder, and for the crime of aggravated burglary, and I must give consideration to your lesser role in the murder, I am obliged to pay heed to the Court of Appeal's indication in the case of Cooper that had he not pleaded guilty and given assistance to the Crown, the appropriate head sentence for the charge of murder at common law would have been life imprisonment[41] as well as for the offending as a whole.[42]

Remorse, Prospects for Rehabilitation and Parity considerations

61 The Crown submitted that your reliance on drugs as the explanation for your offending did not operate to mitigate sentence. This is of course correct and I take the information about your substance abuse to be put forward merely as a partial explanation for your loss of victim empathy and proper morality. However, your long term drug addiction and failure to pursue sustained treatment does mean that your prospects for rehabilitation are less good than otherwise.

62 You have been prescribed antidepressants in custody on remand and have been housed in the protection stream of the prison because of the nature of your crime. Nevertheless, in your favour you have managed to work as a billet. You have also completed some short courses[43] and have been regularly visited by your sister.

63 Mr Johns QC submitted that despite your plea being a late plea, there was some basis for finding your plea of guilty to be a sign of contrition. He suggested that there were glimmers of insight in your earlier consultation with Simon Candlish, before your change of plea, where you told him that the offending was all your fault because you took Cooper to Mr Handford's house. He also submitted that you had always been willing to plead guilty to aggravated burglary,[44] although you disputed knowing that Cooper was armed with the knife at the time you sought to change your plea.[45]

64 Mr Johns submitted that although Cooper pleaded guilty at an earlier stage and gave assistance to the Crown, your prospects for rehabilitation were brighter than Cooper's because Cooper had a prior conviction for aggravated burglary and convictions for burglary, and had received a somewhat bleak assessment of future risk from a psychologist, Ms Cidoni.[46]

65 The Crown suggested that the Court should approach the question of remorse in your case with circumspection and that although you are entitled to a utilitarian discount for your pleas of guilty, it should be at the lower end of the scale. This was because of the lateness of your guilty pleas in the context of the procedural history of your case and the lack of evidence that you are truly remorseful.

66 In comparing your prospects for rehabilitation with those of Cooper, the Crown submitted that Cooper offered to plead guilty after the committal, stuck to his plea, co-operated by providing a detailed statement to the Crown, and gave evidence in accordance with that statement. The Crown submitted that a finding by the court that Cooper's prospects of rehabilitation after a lengthy sentence were reasonable should not lead to a finding that your prospects are better than reasonable in all of the circumstances, even taking account of your less significant criminal history and more favourable psychological assessments.

67 In responding to this submission, I should make it clear that my assessment of Cooper's future prospects after release from prison was greatly influenced by his fulsome cooperation with the authorities, my finding as to his contrition and his willingness to testify for the prosecution against you. It should also be said that Cooper's continued willingness to give evidence against you assisted the Crown in their ultimate resolution of the case against you, which occurred after Cooper was sentenced by me.

68 Cooper was ten years younger than you at the time you became accomplices in this criminal offending, and he pleaded guilty at a relatively early stage compared to you. Whilst it is true that Cooper's disposition for violence appears more pronounced[47] than yours, this may be partly the result of Cooper's highly dysfunctional childhood and upbringing, which included his experience of childhood rape. It is a disturbing feature of your offending that you knew Mr Handford and some of his extended family members personally,[48] and knowing that he was elderly and lived alone you saw fit to break into his premises at night.

69 Nevertheless, although you cannot rely on the same factors of cooperation and assistance as Cooper, your absence of prior violent offending, and the fact that you have some capacity for skilled employment are matters in your favour if you are able to overcome your drug abuse when you are released. The report of Mr Mackinnon favoured your prospects to some degree. On the other hand, the presence of true remorse is not prominent even factoring in your belated guilty plea, and it is certainly less advanced than in the case of Cooper. Balancing all of these matters, I assess your prospects for rehabilitation after a lengthy prison sentence as reasonable.

70 The Court is required to take into account current sentencing practices.[49] In the sentence imposed on Cooper, I made reference to comparable cases and data for the offences of murder and aggravated burglary, although I did not refer to statutory murder. However, there has not been sufficient data on statutory murder for meaningful comparison since Director of Public Prosecutions v Perry[50] was handed down. I must therefore obtain such guidance as I can from the Court of Appeal's judgment in Cooper's case.

71 In Cooper, their Honours concluded that the murder committed by the respondent was at the high end of the spectrum of seriousness for common law murder. The Court of Appeal reached the same conclusion in the case of Director of Public Prosecutions v Arthur,[51] which was handed down two weeks after Cooper. In Arthur it was also said that absent the accused having pleaded guilty and offering evidence against the co-offenders, the gravity of the offending would have warranted a head sentence of life imprisonment with a minimum of 28 years.[52]

72 In Cooper, it was considered that a higher sentence was also warranted for the charge of aggravated burglary. This was considered to be a very serious example of that crime, and since Cooper had a prior conviction for aggravated burglary and other convictions for burglary, specific deterrence deserved more weight in sentencing him on that charge, along with more emphasis to general deterrence, just punishment, and denunciation. Ultimately, each of the individual sentences imposed on Cooper were increased with the court indicating the view, echoed also in Arthur, that too much weight had been given to mitigation of sentence as a result of the respondent's assistance to the authorities. In respect of Cooper's overall sentence, the Court of Appeal determined that without his plea of guilty (and presumably his cooperation) a sentence of life imprisonment with a minimum of 30 years would have been warranted.

73 In your case I am inclined to regard the murder as at the high end of the spectrum of such cases of statutory murder where murderous intent is not established. Statutory murder does not always necessitate a finding that murderous intent is absent, nor lead to a conclusion that a sentence under s 3A Crimes Act 1958 must be less than for common law murder.[53] But in your case, the Crown chose not to press for a finding of murderous intent and elected quite purposefully to proceed under s 3A of the Crimes Act 1958, distinguishing your position from that of Cooper. This matter, along with the fact that you were not the person who stabbed the deceased, together with your plea of guilty[54] is relevant to consideration of a just sentence. These factors also impact on my assessment of the sentence I would have imposed for statutory murder had you not pleaded guilty. However, in considering your sentence alongside the sentence of 22 years imposed by the Court of Appeal on Cooper for common Law murder I take into account that the Court of Appeal must still have given weight to Cooper's assistance to the authorities,[55] remorse and relatively early plea of guilty. It is also relevant to your sentencing under s 3A Crimes Act 1958 that Cooper's violent attack on the deceased came about in the context of your previous assertion to him that the deceased was a paedophile. However, I accept that you did not intend or foresee the extent to which Cooper would lose control of himself during the armed robbery.

74 As to the charge of aggravated burglary, a distinguishing feature favourable to you as against Cooper is that you have a less significant criminal history. Also, you offered to plead guilty to aggravated burglary after the committal only disputing the particularisation of the offence.[56] These factors have to be balanced against the fact that you were the driving force behind the aggravated burglary and knew Mr Handford personally. Cooper entered an earlier plea to the charge, was found to be remorseful and cooperated with the authorities in the prosecution of you.

75 There is little to distinguish the sentence that should be imposed for the theft between yourself and Cooper other than Cooper's cooperation and assistance.

76 I have considered your age at the date of sentencing and all the factors personal to you which have been advanced on your behalf by Mr Johns QC in a most comprehensive plea.

77 In sentencing you, I take into account just punishment, general deterrence, rehabilitation, denunciation and community protection.[57]

78 Specific deterrence[58] has some limited weight due to your history of drug abuse and criminal history although this factor was not given any emphasis by the Crown at the plea hearing.

79 I must also apply the principle of parsimony under s 5(3) of the Sentencing Act 1991.

80 In structuring the sentence I must also give effect to the principle of totality and as mentioned earlier avoid double counting.

82 In light of all the above mentioned considerations I have concluded that the following sentences should be imposed:

83 On the charge of murder contrary to s 3A of the Crimes Act 1958 you are sentenced to be imprisoned for a period of 25 years.

84 On the charge of aggravated burglary you are sentenced to be imprisoned for eight years.

85 On the charge of theft you are sentenced to be imprisoned for two years and six months.

86 I direct that two years of the sentence for aggravated burglary be served cumulatively on the sentence for s 3A murder.

88 I direct that you serve a period of 23 years before you are eligible to apply for release on parole.

89 I declare that your pre-sentence detention is a period of 903 days not including this day and direct that this be entered in the records of the court and reckoned as time already served pursuant to s 18(1) of the Sentencing Act.

90 Under s 6AAA of the Sentencing Act I direct that, but for your plea of guilty, I would have imposed a sentence of 33 years with a non-parole period of 28 years.

91 I make the forfeiture orders sought by the Crown.

[1] DPP v Cooper [2017] VSC 218R.

[2] DPP v Cooper [2018] VSCA 21.

[3] R v Rowe [2016] VSC 388R (8 July 2016) dealt with for accessory after the fact to murder and handling stolen goods.

[4] [2018] VSCA 21.

[5] See, DPP v Cooper [2017] VSC 218R [18] and Summary of Prosecution Opening [14].

[6] Williamson told Cooper that the deceased was likely to have at least twenty thousand dollars in his possession.

[7] Cooper's words to describe the planned aggravated burglary.

[8] Defence written Outline of Plea submissions, 9 October 2017

[10] Statement of Jonathan Cooper, 31 January 2017, 17.

[11] A fact that would need to be proved beyond reasonable doubt.

[12] Statement of Jonathan Cooper, 31 January 2017, 16.

[14] Report of Neil Strathmore, 16 September 2015, Depositions 802.

[15] From the Victorian Institute of Forensic Medicine.

[16] Autopsy Report by Dr Michael Burke, Depositions 790.

[17] Prosecution Opening dated 6 October 2017.

[18] Statement of Jessica Brereton, Depositions 154.

[19] This draft indictment was handed up but never filed.

[21] The revised indictment ultimately bore the same charges as the original indictment number C1510420.

[22] This was not particularised in the Prosecution Opening, but was submitted at Plea: Transcript of Plea, 10 October 2017, 6-7.

[23] Statement of Cooper 31 January 2017, 3, affirmed at Basha hearing on 7 September 2017. Cooper's explanation is also consistent with that of other witnesses that Williamson said after the event that the victim was a paedophile: Statement of Jessica Tippett, Depositions 127; Statement of Jessica Brereton, Depositions 156; Statement of Heath Shepherd, Depositions 149-151, Statement of Allan Brown, Depositions 615.

[24] I am of course obliged to warn myself to consider Cooper's evidence with caution because of his role as an accomplice and the risk that his statements are motivated by self-interest. I nevertheless am satisfied to the criminal standard as to this circumstance of aggravation: R v Storey [1996] VSC 75.

[25] Report of Mr Simon Candlish, dated 6 December 2016, tendered as Defence Exhibit B on Plea, 10 October 2017.

[26] All victim impact statements tendered at the plea hearing on 7 December 2016 and mentioned in the sentencing of Jonathan Cooper were reviewed. See DPP v Cooper [2017] VSC 218R, [56].

[27] Tendered as Prosecution Exhibit 2 on Plea, 10 October 2017. These statements were initially tendered in the plea for Jonathan Cooper.

[28] Tendered as Prosecution Exhibit 3 on Plea, 10 October 2017: Margaret Murray, Anita Maher, Shae Murray.

[29] A non-juratted copy of the text was included in Prosecution Exhibit 3 on Plea, 10 October 2017. The original has been handed up at the time of sentence.

[30] According to the report of Mr Simon Candlish, dated 6 December 2016, tendered as Defence Exhibit B on Plea, 10 October 2017, [35].

[31] Tendered as Defence Exhibit B on Plea, 10 October 2017.

[32] Report of Simon Candlish dated 6 December 2016, [68].

[33] Report of Ian Mackinnon, dated 5 October 2017. Tendered as Defence Exhibit C on Plea, 10 October 2017.

[38] See criteria for assessing seriousness in DPP v Meyers (2014) VR 486, 498 [48], reiterated in Maslen v R [2018] VSCA 90, [37].

[39] DPP v Cooper [2018] VSCA 21 [47]-[48]. The court described it as towards the upper end of the scale of seriousness for the offence.

[40] Crimes Act 1958 ss 323, 324.

[43] A course on managing emotions and one on managing anxiety.

[44] On the basis of person present but without reference to the knife.

[45] Therefore, the particularisation of the charge of aggravated burglary to include carriage of a knife - as it was on the earlier plea indictment - was also in dispute when the change of plea application was made.

[46] Based on the application of the VRAG (Violence Risk Appraisal Guide).

[47] Based on the report of Gina Cidoni and Cooper's past criminal history and background.

[48] Report of Ian Mackinnon, dated 5 October 2017, 5.

[49] Sentencing Act 1991 (Vic) s 5(2)(b).

[50] [2016] VSCA 152.

[51] [2018] VSCA 37.

[52] It need hardly be said that the Court of Appeal was no longer constrained by current sentencing practice in considering the sentences imposed in Cooper and Arthur in light of the recent High Court case of Dalgleish [2017] HCA 41; (2017) 349 ALR 37.

[53] DPP v Perry [2016] VSCA 152 [47]-[48].

[55] DPP v Cooper [2018] VSCA 21 [46].

[56] Conceding 'person present' but disputing the knife as a particular of the aggravated burglary. However, the present indictment alleges both particulars.

[57] Sentencing Act 1991, s 5(1).

[58] Sentencing Act 1991, s 5(1)(b).