Prosecution v Accused

3 It is now my task to sentence you for that offence.

4 I do not propose to set out in detail the events of 3 December 2018. They are set out in detail in the judgment I delivered when I found you guilty of murder.[4] It is sufficient for present purposes simply to note certain salient features.

5 You met Ms Pante in early November 2018 through Brodie Costello, a friend you had known since 2017.

6 Ms Pante and Mr Costello did not have stable accommodation in the weeks prior to Ms Pante's death. On 2 December 2018, Mr Costello organised to reside with Ms Pante in a 'glamping' tent which was erected at the Geelong Showgrounds ('showgrounds').

7 On the morning of 3 December 2018, you arrived at the showgrounds together with an acquaintance, Tracie Menzies, and not long after Ms Pante arrived. When you entered the tent you had on your body a loaded firearm. Mr Costello was on a call when you and Ms Pante entered the tent. You and Ms Pante were having a verbal altercation. Mr Costello indicated to you and Ms Pante to quieten down, which you did momentarily before raising your voices again. You and Ms Pante were standing at this time and Ms Pante was directly in front of you. You continued arguing with Ms Pante. You then produced a gun from your person and pointed it at Ms Pante's forehead with an outstretched arm and you shot Ms Pante at point blank range.

8 Soon after you shot Ms Pante, you, Ms Menzies, and Mr Costello exited the tent and left the showgrounds in the car you had driven.

9 In the very early hours of 4 December 2018, you either deliberately burnt the tent containing Ms Pante's body or instructed someone to burn it. On 5 December 2018, you along with two other people drove to New South Wales and you were eventually arrested by the police in the afternoon of 6 December 2018.

10 I concluded that in the circumstances of the shooting, at the time you shot Ms Pante you had a murderous intention. You fired a gun which you knew to be loaded, at or near the middle of Ms Pante's forehead, at point blank range. That is highly purposeful conduct. The firing of the gun in the context of an ongoing verbal altercation between you and Ms Pante can admit no other explanation. I did not expressly conclude whether the intention you held at the time you shot Ms Pante was an intention to kill or cause really serious injury.

11 Your counsel submits that I should now conclude that your intention was not to kill Ms Pante but to cause her really serious injury. This is on the basis that you acted impulsively when you shot Ms Pante and you 'may have bitterly regretted it two seconds later'.[5] The evidence is that almost immediately after the shooting, you went over to Mr Costello and said you were sorry. The prosecution submits that I should be satisfied beyond reasonable doubt that you had an intent to kill Ms Pante when you shot her. This is on the basis of the nature of the act: that is, shooting somebody at point blank range in the forehead.

12 I am satisfied in the circumstances of this case that your intention was to kill Ms Pante rather than to cause her really serious injury. In any event, in R v Walters,[6] the Court of Appeal said that:

The one feature common to all murders is that the accused has caused the death of another. The moral culpability will be determined by the nature of the killing, including the conduct of the accused, rather than the particular intent with which the conduct was carried out ... The distinction between intent to cause really serious injury (previously grievous bodily harm) and intent to kill is a very fine one. That distinction cannot inform the question of moral culpability in all cases.[7]

13 On the facts of this case so examined, I consider the level of your moral culpability is high.

14 Any apology you gave to Mr Costello immediately after the shooting is of little relevance on the question of intention, given you had fired a gun you knew to be loaded point blank at Ms Pante's head.

15 I will now turn to the victim impact statements. I have received and considered 11 victim impact statements made by Ms Pante's parents, family and friends.

16 These were from Marlene Parrott and Dale Parrott, Ms Pante's parents; Luke Parrott, Ms Pante's brother; Peter Curypko and Robert Liv; Ms Pante's uncles; Jodie Percy, Ms Pante's cousin; and Caroline Schoning, Melissa Evans, Laura Robinson, Kelly Gard and Leanne Ormisher, family and friends. They are powerful and moving documents. They all speak, in one way or another, of the heartbreak the family and friends have suffered as a result of your actions, and the life changing effect that the loss of a loved daughter, sister and friend has had on their lives. I will not repeat what each person expressed but note the following:

(a) Marlene Parrott speaks of her life of pain and suffering. Your actions have impacted on Ms Parrott's employment and social life. She lost her job after her daughter's death and now avoids social events. Dale Parrott, continues to have very bad days emotionally and said that he cries a lot when he thinks of his daughter.

(b) Melissa Evans describes how a small community of Ms Pante's friends and family are bound together because of your actions and how they have been dragged into an unsavoury and unfamiliar world.

(c) Jodie Percy speaks of her loss of trust in people since Ms Pante's death and the mental health struggles she and her family and friends now endure.

(d) Peter Curypko speaks of the devastating impact your actions have had on their loving family and the anger he now feels.

18 I trust you can now understand how much pain and suffering you have caused by what you did.

19 It is necessary to say something of your personal background. You are now 35 years old. You are the eldest of three siblings. You have no relationship with your siblings and are not on speaking terms with your mother. Your father calls you occasionally in prison. On the limited information before me, it appears your childhood was marred by substance abuse and domestic violence.

20 You spent your early years with your family in the Albury Wodonga area. Your family moved to Geelong in 1998. Your parents separated six months after moving to Geelong. You initially lived with your mother and siblings in Queensland, but then moved back to Geelong to live with your father.

21 You moved high schools three times because you had difficulty fitting in at school. Your education subsequently ceased at Year 8. In approximately 2002, you were sent to live with your mother in Queensland. You obtained limited work on a prawn trawler but soon after returned to live in Geelong.

22 That same year, you then left home and lived with a friend whose brother had accommodation. With no income, you found your way into minor crime in the Geelong area. Despite your young age, you were exposed to the use of illicit drugs and developed a long-standing habit of illicit drug use.

23 You met the mother of your three children in 2004. Your children are aged 16 years, 15 years and 8 years. It seems from 2011 to 2017, you had a period of greater stability in your life. The Court was informed you helped in those years to raise your children. It appears you managed to cease using drugs in this period.

24 You have Skype contact with your eldest child. You cannot have contact with your younger children given you are classified as a restricted access prisoner, due to the existence of historical intervention orders.

25 Your prior convictions date back to 2004. They include convictions for unlawful assault, unlicenced driving, theft of a motor vehicle, reckless conduct endanger serious injury and threat to inflict serious injury.

26 You were sentenced to 12 months imprisonment on 18 January 2018, with 87 days being declared as time served. You were released from prison on 22 October 2018, just 42 days before you murdered Ms Pante. You arranged for a friend to look after your firearm while you were in prison and you retrieved it on your release.

28 The following factors are relevant to that characterisation. You shot Ms Pante in the forehead at close range with two other people close by. The shooting was not premeditated and the decision to shoot Ms Pante was made only seconds prior to being acted on. You did not bring the gun into the tent with the intention to shoot Ms Pante.

29 It is not known why or what caused you to shoot Ms Pante. Your decision was spontaneous and impulsive. However, in circumstances where Ms Pante was unarmed, not acting in an aggressive or threatening way before you shot her and where she had no reason to expect any kind of violence against her, you shot her in the heat of the moment and with no warning. You thoughtlessly acted in the most violent and deadly way and shot Ms Pante with a gun aimed at her head. This was an utterly senseless killing.

30 Ms Pante's killing was unprovoked, cold-blooded, and carried out in a callous, almost detached manner.

31 You then took steps to conceal your crime by setting fire to the tent or arranging for it to be done. This had the intended consequence of causing Ms Pante's body to be burnt. This conduct is an aggravating factor of the kind that can be taken into account when assessing the gravity of the offence.[8]

32 The Court of Appeal have made it clear on several occasions, most recently in DPP v Ristevski[9] that it may not be helpful to try to fit particular offences within a category of seriousness of offending. The features of the individual case is the important consideration.

33 Your prospect of rehabilitation is difficult to assess. There are two primary factors that contribute to that assessment.

34 First, is the fact that you have shown no remorse. Your counsel submits that your immediate response or words to Mr Costello after the shooting whereby you say 'sorry', amounts to evidence of your remorse. I do not consider the utterance of the word 'sorry' or words to that effect to Mr Costello amounts to any remorse of the kind that I can take into account for the purpose of sentencing you.

35 Second, your criminal history indicates that you have struggled to live a crime-free life. You have had one period since 2004, from 2011 to 2018, where you have avoided contact with the criminal justice system. However, upon being released from prison in October 2018, you immediately returned to offending and illicit substance abuse, and within 42 days of your release, you murdered Ms Pante.

36 It is hoped that your prospects for rehabilitation will not always be so guarded. You will be a much older man when you are released. Hopefully, you will have undergone appropriate violent offence-specific treatment and substance abuse treatment which may assist you when you re-join the community.

37 I have taken into account the inordinate delay in your trial being heard and determined. I accept that this has caused you additional stress and uncertainty over a protracted period of time. I have also taken into account submissions just made by your counsel.

38 Your counsel submits that your application to have the trial heard by judge alone had some utilitarian value. This was on the basis that the trial was able to proceed in early 2022, despite numerous interruptions caused by the COVID-19 restrictions and isolation requirements. At various times, counsel and/or instructing solicitors contracted COVID-19, requiring them to isolate for up to seven days. As it was a judge alone trial, we were able to proceed despite those interruptions.

39 It is established that the conduct of the trial by the accused can be relevant to the question of remorse and can have utilitarian value.[10] Further, s.5(2C) of the Sentencing Act states:

In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse or lack of remorse on his or her part.

40 Your decision to proceed with a judge alone trial may have had some utilitarian value, in that the trial was able to continue despite the interruptions caused by COVID-19. This ensured finality for you and all other interested parties. However, there is no evidence that your decision to elect a judge alone trial was an indication of remorse on your part. As such, I do not consider you should receive any credit in relation to the sentence to be imposed.

41 Your counsel submits that given the delays and numerous times the trial was vacated or adjourned due to COVID-19, you were subject to more onerous conditions generally, as were all prisoners, but specifically because you were required to isolate a total of 77 days in the course of the trial until verdict.

42 Your experience of custody has been affected by COVID-19. Visits have been limited, the availability of programs has been restricted and there have been occasional lockdowns within the prison to contain the spread of the virus. In this specific case, given the numerous trial vacations and adjournments, you faced even more onerous isolation requirements over a significant period. Between 13 December 2018 and 28 July 2021, you have had 257 Emergency Management Days granted in recognition of deprivation suffered because of COVID-19 related lockdowns, and may be eligible for more once you are sentenced.[11] The more onerous conditions imposed upon you as a result of the COVID-19 pandemic are a relevant factor on the sentence I will impose.

43 Your counsel submits that I should have regard to the fact that you have been in protection while incarcerated. You have been in protection for almost two years, from 11 May 2021.[12]

44 Imprisonment in protective custody may be taken into account as a circumstance which makes the incarceration of a prisoner more burdensome than would be the case of the ordinary prisoner.[13] However, there is no evidence before me to support your counsel's submission that the nature of your protective custody is connected to the evidence you gave in this trial about any other person. Whether you remain in protective custody will be determined by a sentence management panel and determined as required under the Corrections Act 1986 and the Corrections Regulations 2019. There is no evidence that you are in any way a marked man and that you will remain in danger throughout your sentence.

45 Further, the evidence is that protection status does not require restricted living conditions, but may limit the number of prisoners available for mixing with. Protection prisoners are typically placed with other classified protection prisoners, and in conditions substantially the same as those in which mainstream prisoners are held.[14] No evidence was adduced by you that being in a protection unit has made imprisonment significantly harder for you than an ordinary prisoner.

46 I have had regard to the standard sentence for murder as one of the matters to be considered in arriving at the appropriate sentence for you by the process of instinctive synthesis. In doing so, I have applied the law as explained in the Court of Appeal decision of Brown v The Queen.[15]

47 I am required to have regard to the nature and gravity of the offence and degree of responsibility for the offence.[16]

48 The crime of murder is a crime of the utmost gravity and this is a serious example of that crime. To shoot an unarmed person in a confined space where they were entitled to feel safe and had no reason to fear any violence was a ghastly act.

49 Your counsel submits that your crime lacked the aggravating features seen in many murders. He submits there was no premeditation and that the crime occurred in a matter of seconds.

50 For no good reason, you made a most extraordinary decision to shoot Ms Pante. You shot Ms Pante in the head from close range, intending, I am satisfied beyond reasonable doubt, to kill her. You then left the showgrounds in a relatively calm and clinical fashion and later returned to the showgrounds or organised for someone to burn the tent and Ms Pante's body. Factors increasing the objective gravity of the offending include the use of a firearm, and your attempts to conceal the crime by burning the tent where Ms Pante's body remained. Right up until today you have not said anything or done anything to indicate remorse or regret about your conduct.

51 I consider yours is a serious example of the crime of murder, for which your moral culpability is high.

52 All the purposes of sentencing in s 5(1) of the Sentencing Act have application in your case and must be given appropriate weight. That is, just punishment, specific and general deterrence, rehabilitation, denunciation and protection of the community. You must be punished in a way that reflects the shocking seriousness of your crime and amounts to an appropriate response to it. The sentence of this crime must make it very clear that the Court deplores violent crimes of this sort. Ms Pante's life was precious. You senselessly took it away, in the clear knowledge of the severity of your actions. You were at the time of the offending, an adult of normal intelligence, suffering no mental impairment that affected your judgment.

53 In respect of general deterrence, the sentence I pass must make it clear that such conduct will be met with strong punishment. As for the protection of the community, you committed a crime of extraordinary and callous violence, and there is the need for the community to be protected from any repetition of your conduct in the future. I take into account the need for you to be personally deterred from future offending.

54 I have given close consideration to the impact of your offending on Ms Pante's family and friends and on the wider community.

56 Balancing as best I am able the competing considerations laid down in the Sentencing Act and having regard to the matters I have discussed, for the offence of murder I sentence you to 27 years imprisonment, which is more than the standard sentence for murder.[17]

57 I fix a non-parole period of 21 years. I declare 1,527 days up to and including yesterday, 9 February 2023, pre-sentence detention as time already served under this sentence.

58 I make the disposal orders sought by the prosecution.

[1] Crimes Act 1958 (Vic), s 3(1)(a).

[2] Crimes Act 1958 (Vic), s 3(2)(b). The Standard Sentence Scheme applies in this case because the offending occurred after 1 February 2018.

[3] Murder is also a category 1 offence, which means I must impose a term of imprisonment. See s 5(2G) of the Sentencing Act 1991 (Vic) ('the Sentencing Act').

[4] DPP v Cross [2022] VSC 314.

[6] [2012] VSC 608.

[8] Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258; Semann v The Queen [2017] VSCA 261, [88]-[91].

[9] [2019] VSCA 287, per Priest JA [65]-[67].

[10] See R v Astbury [2019] VSC 97 at [42] - [48].

[11] Affidavit of Jennifer Ann Hosking filed 20 January 2023, [65].

[12] Affidavit of Jennifer Ann Hosking filed 20 January 2023.

[13] R v Rostom [1996] VicRp 60; [1996] 2 VR 97.

[14] Affidavit of Jennifer Ann Hosking filed 20 January 2023 [69].

[15] [2019] VSCA 286; the Sentencing Act, ss 5(2)(a), (ab).

[16] The Sentencing Act, ss 5(2) (c) and (d).

[17] I have considered all of the matters I am required to consider under s 5(2) of the Sentencing Act, including the standard sentence for murder.