R v Brown [2005] VSC 63

Supreme Court of Victoria|2005-03-04|Before: WHELAN J.

CRIMINAL LAW - Sentencing - Assist offender - Undertaking to give evidence on behalf of the Crown in the trial of co-offender - Co-offender charged with murder - Eighteen month sentence, wholly suspended for two years.

Gavin James Brown, on 2 March 2005 you pleaded guilty to a charge that at Cheltenham on or about 25 July 2002, knowing or believing Jeffrey Kevin Mitchell to be guilty of the murder of Andrew Preston, you acted to impede the apprehension, prosecution, conviction or punishment of Jeffrey Mitchell. The offence to which you have pleaded guilty carries a maximum penalty of 20 years' imprisonment.

The Crown opened the matter and I heard a plea on your behalf on 3 March 2005.

A summary of the circumstances of the offence as opened by the Crown is as follows: Your sister Leanne Brown was in a de facto relationship with Jeffrey Mitchell for some years. They have two children. In early 2002 Leanne Brown formed a relationship with Andrew Preston and, after a time, Leanne Brown and he moved in together to a caravan at a caravan park in Lilydale. One feature of the relationship between Leanne Brown and Andrew Preston was abuse of amphetamines. On Monday 29 April 2002 you went to the caravan park with Jeffrey Mitchell. The two of you accompanied Andrew Preston to Mitchell's four-wheel drive vehicle. Mitchell then drove the vehicle to a remote location near Powelltown. You believed that Mitchell's purpose was to "warn off" Preston. What happened was that Mitchell stabbed Preston and killed him. His body was left in the bush. You and Mitchell returned to Melbourne.

Andrew Preston was reported missing by his mother in July 2002. On 25 July 2002 police attended Mr Mitchell's house in Cheltenham. Both you and your sister were there. You made a statement to police. In that statement you asserted that you had not seen Andrew Preston for four months, that you had never seen any conflict between Mitchell and Andrew Preston and that you had no idea what had happened to him or where he could be. The basis of the charge to which you have pleaded guilty is that statement.

In the course of an interview in April 2003 you revealed to police that the statement you had made in July 2002, and a further statement you had made in January 2003, was untrue. You then gave them an account of Mr Preston's death. You explained that your previous witness statements were made because you were afraid that Mitchell would kill you or harm you if you revealed the truth. You assisted police in their endeavours to find Andrew Preston's body. Those endeavours were unsuccessful. The inability of the police to locate the body may be due to roadworks conducted in the area in February 2003. You also assisted police by agreeing to make a monitored phone call to Jeffrey Mitchell on 18 May 2003. You made a statement of what you now say are the true circumstances. That statement is dated 30 April 2003.

You were committed to stand trial on 28 April 2004. Mr Mitchell was also committed to stand trial. He was to be tried on a charge of murder. On 2 March 2005 I ordered separate trials. The prosecution elected to proceed with your trial first. Before a jury was empanelled, your counsel announced your intention to plead guilty and also indicated that you had agreed to give evidence against Mr Mitchell.

You gave sworn evidence on the plea hearing. Amongst other things, you confirmed on oath the truth of your statement made 30 April 2003 and you gave an undertaking to the Crown to give evidence in conformity with that statement in the trial of Jeffrey Mitchell. That undertaking is recorded in the transcript (p.12) and the statement was tendered as Exhibit B.

The offence to which you have pleaded guilty is a most serious one. There can be no doubt that your conduct did impede the investigation. However, as an accessory after the fact, your criminal conduct being confined to the statement you made in July 2002, you are to be regarded as less culpable than an accessory to the crime, or an accessory before the fact.[1] Your culpability is also mitigated somewhat by your expressed fear of Mr Mitchell, a fear which is considered by investigating police to be justified. The defence your counsel had foreshadowed before your guilty plea was duress.

A most significant factor to be taken into account here is the undertaking you have given. Counsel have compiled a number of decisions of this court where accessories have been sentenced after pleading guilty and giving such an undertaking.[2] I have reviewed those decisions and in my view they are of considerable assistance.

Andrew Preston's mother, Marguerite Preston, has filed a victim impact statement. It is clear that she has been tragically affected by her son's disappearance. She is especially disturbed by the inability of the police to find his body. She believes that your conduct may have significantly reduced the prospects of his body being discovered.

You are now 30 years of age. You live with your parents, who are both retired. You left school during year 11 and worked for a number of years in industry, especially in occupations involving use of fibreglass. You have not been employed whilst these matters have been pending. You have a seven year old son who you see at least every second weekend. Although not employed, you have, while this matter has been pending, completed an equipment operator's competency qualification and a first aid course. I was told, and I accept, that you are keen to resume work when this matter is dealt with.

You have used and abused both drugs and alcohol in the past. Your father was called on the plea. Both he and your counsel told me you have been drug-free for some time. You have received treatment for drug abuse at Moreland House. Your father described you now as a fantastic father to your own son.

You do not have an extensive criminal history. You have one group of serious prior convictions. They are for burglary, theft, use of a drug of dependence, assaulting and hindering police, causing serious injury recklessly and failing to stop a motor vehicle after an accident. These matters were dealt with at Ringwood Magistrates' Court on 11 November 1999. You received a suspended sentence.

Your counsel submitted that the most important matter to be taken into account in mitigation was your undertaking to give evidence. I agree with that. I also agree with his submission that you are entitled to a significant discount for your plea of guilty. In the particular circumstances here, I do not consider that you should be penalised for the lateness of that plea. Your counsel submitted that your prospects for rehabilitation were good and that I should not impose a sentence which resulted in immediate incarceration.

Counsel for the Crown submitted that a custodial disposition was called for but that a wholly-suspended sentence was within the range of appropriate dispositions. The Crown also placed particular emphasis on the significance of the undertaking.

The crime you have committed is a serious one. The investigation and prosecution of a serious matter may have been irreparably hindered. In my view, a custodial sentence is required. However, in view of the undertaking you have given, your guilty plea, the absence of an extensive prior criminal history and your prospects for the future, I consider that it is appropriate for that sentence to be wholly suspended.

I propose to sentence you to a term of imprisonment for a period of 18 months and to suspend that sentence for a period of two years.

That being so, I am required by s.27(4) of the Sentencing Act to explain to you that the purpose and effect of suspending your sentence for two years is to give you the chance to avoid spending time in prison. You will not have to serve your sentence unless you commit another offence within the next two years. If, however, you do commit another offence within the next two years, whether it be in Victoria or elsewhere, and that offence is punishable by imprisonment, you will be guilty of an offence of in effect breaching the terms of the suspension, and you may be prosecuted and, if convicted, you may be ordered to serve the whole or some part of the sentence which I have suspended. Do you understand that?

Gavin James Brown, for the reasons I have given I sentence you to a period of imprisonment of 18 months. I order that all of the sentence of imprisonment which I have imposed upon you be suspended for a period of two years beginning this day.

For the purposes of s.5(2AB) of the Sentencing Act I announce that the sentence which is imposed upon you is a less severe sentence than would otherwise have been imposed because of your undertaking to which I have referred. I direct that there be noted in the Court's records the fact of the undertaking that was given and its details.

[1] R v Hammond [2000] NSWCCA 540 at [60]; R v Stanbury [2003] VSC 93 at [24].

[2] R v Culleton [1999] VSC 478; R v Drummond [2000] VSC 206; R v Rees [2002] VSC 37; R v Newton [2002] VSC 182; R v Miller [2002] VSC 456; R v Stanbury [2003] VSC 93.

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