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[2008] VSC 393
plaintiff. Each defendant was sentenced to three months’ imprisonment; the sentences for Churchill and McGillivray were wholly suspended for 24 months, and the period to be reckoned as already served by...
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The three offenders joined a plan to overpower Witham so that he could be beaten and removed from a home. They restrained him in his bedroom and left while he was tied up. Other participants later took him away, and Flaherty murdered him. The sentencing judge accepted that none of these three offenders knew or suspected that murder would occur, but considered their assault serious, planned and dangerous. All were sentenced to three months' imprisonment. Churchill and McGillivray had their sentences wholly suspended for 24 months, reflecting their pleas, cooperation and personal circumstances. Whittaker's sentence was not suspended, and the court left the time-served calculation for discussion with counsel.
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2,174 words · generated 30/09/2026
In R v Churchill, McGillivray & Whittaker [2008] VSC 393, the Supreme Court of Victoria sentenced three offenders after each pleaded guilty to assaulting Stephen John Witham at Berwick on or about 13 August 2006. Kaye J delivered sentence on 2 October 2008. The judgment is a sentencing decision, not a trial judgment determining contested facts: the judge described the factual account accepted for sentence and the pleas of guilty (paras 1–11).
Churchill was a long-standing friend of Jodie Watson. Watson told her that Witham had been violent and that he would not leave the unit where Watson and Michael Flaherty lived. Watson asked Churchill to assist in removing him. Churchill contacted McGillivray, who then asked Whittaker to assist. The judge accepted that all three understood the plan to involve overpowering Witham so that he could be beaten and removed from the home (paras 2–5).
At the unit, Flaherty and Clinton McRae went into Witham's bedroom while he was asleep. McRae swung a weapon, described as either a bat or a pole. McGillivray grabbed Witham, and Whittaker joined him in restraining Witham face down on the mattress. Flaherty tied Witham's hands behind his back. McGillivray thought the situation was getting out of hand; he and Whittaker left, and Churchill went with them (paras 7–8).
After they left, Flaherty, Watson and McRae took Witham away. Flaherty later murdered him by shooting him in the back of the head (para 9). The judge expressly accepted that none of the three offenders had any inkling that Witham would be murdered, and that McGillivray did not expect or suspect that Flaherty intended to kill him, even after seeing Witham tied up (para 10). The offenders were sentenced for the assault, not for the murder.
Kaye J sentenced each offender to three months' imprisonment. Churchill's and McGillivray's terms were wholly suspended for 24 months. In Whittaker's case, the judge said the number of days to be reckoned as already served remained to be discussed with counsel, referring to s 18(4) of the Sentencing Act 1991 (Vic) (para 35). The judgment does not set out the final time-served calculation.
The judge's reasoning began with the gravity of the assault. It was planned, involved several people, and was directed at a man who was asleep in his bedroom. The group intended to overpower him so that he could be beaten; they succeeded in rendering him helpless. The judge also emphasised that the offenders left Witham in the hands of people they knew had a serious grievance against him (paras 12–14). Although they were not to be punished for the subsequent murder, the judge considered that real harm to Witham was within their contemplation when they left him restrained (para 12).
The judge said the sentence needed to reflect the seriousness of the offending, express the community's condemnation, and deter both these offenders and others (para 31). He rejected the idea that the dispute could justify private violence, stating that people must not combine to take the law into their own hands (paras 13–14). This was a central sentencing consideration, not a finding that the offenders had participated in the murder.
Each offender's plea was treated as important mitigation. Although there had been delay, the judge accepted that the pleas were entered at the first practically available opportunity because other possible charges had been under consideration. The pleas spared Witham's family the distress of a contested trial about these offenders' involvement (para 16). Churchill and McGillivray also made candid admissions to police and signed statements, and the judge treated their cooperation as an additional mitigating factor (para 17). Whittaker had exercised his right to silence in interview, so he did not receive this cooperation credit (paras 11, 30).
The judge regarded all three as equally culpable for the assault, notwithstanding differences in their individual roles. He then differentiated their sentences by reference to their personal circumstances and records (para 30). Churchill had no previous convictions, had a substantial work history, was raising two children as a single parent, and had Crohn's disease that had led to repeated hospitalisations. The judge considered that immediate imprisonment would bear more harshly on her because of her medical condition (paras 18–20).
McGillivray also had no previous convictions. The judge considered his drug use relevant as an explanation for impaired judgment, but expressly said it was not a mitigating circumstance. He accepted evidence that McGillivray had begun to change his lifestyle before arrest, had resumed responsibilities towards his daughter, and was on a path to rehabilitation (paras 21–24). His guilty plea and candid cooperation also counted in his favour.
Whittaker's circumstances differed. He had previously received a five-year prison sentence, with a minimum non-parole period of three years and six months, for culpable driving causing death and causing serious injury negligently. He committed the assault about a year after release and while on parole (para 25). The judge also considered his later detention and the outstanding serious injury charge, while making clear that periods of detention were not to be taken against him (paras 26–27). The judge acknowledged that Whittaker was not the instigator and that the force he used was moderate, but those matters did not displace the concerns arising from his record and circumstances (para 28).
The judge concluded that imprisonment was necessary for each offender. He suspended Churchill's and McGillivray's terms because of their lack of prior convictions, pleas, cooperation and rehabilitation, and because the judge considered that continued rehabilitation was in the community's interests (para 33). In Whittaker's case, suspension was considered practically ineffectual: the sentence would be no more than the period he had already spent in custody for this offence, and he had no equivalent cooperation or rehabilitation factors (para 34).
This judgment is a fact-specific sentencing decision. It does not announce a new general test for assault, a new offence, or a comprehensive statement of sentencing law. Its account of the applicable sentencing considerations is the judge's explanation of how he assessed these three offenders: seriousness, denunciation, specific and general deterrence, mitigation and personal circumstances (paras 30–34).
The judgment refers to two statutory provisions. First, it refers to s 18(4) of the Sentencing Act 1991 (Vic) in connection with the period to be reckoned as already served by Whittaker. The extract records that the calculation remained to be discussed with counsel; it does not state the eventual number of days (para 35(c)). Second, it refers to s 6AAA of that Act when stating the sentence that would have been imposed had the offenders not pleaded guilty (para 37). The judgment gives the counterfactual terms as three months' immediate imprisonment for Churchill and McGillivray, and four months' imprisonment for Whittaker.
The only other decision cited in the judgment is R v Flaherty (No 2) [2008] VSC 270. Kaye J refers to qualifications stated in his ruling in that case in connection with the s 6AAA statement (para 37). The present judgment does not reproduce those qualifications, so their content cannot be established from this text alone.
Accordingly, the judgment permits a grounded account of the sentencing approach adopted in this case, but not a reliable reconstruction of the complete law before it or any change in law after it. The supplied judgment does not cite earlier decisions establishing a broader sentencing rule, nor does it contain later judicial treatment. No claim about whether later courts followed, distinguished or limited this decision can be drawn from this source.
At paragraph 10, the judge said he accepted “without reservation” that none of the three knew Witham would be murdered. In plain English, the judge treated their offence as the assault they admitted, and did not attribute knowledge of the later killing to them. That distinction did not make the assault minor: the judge separately assessed the risks created by restraining Witham and leaving him with people who were angry at him (paras 10, 12).
At paragraph 12, the judge described the attack as premeditated and noted that Witham was asleep when the attack began. This identifies why the setting and timing mattered: Witham was at a disadvantage, and the offenders' conduct was not a spontaneous exchange of blows.
At paragraph 30, the judge said the offenders were “equally culpable” for sentencing purposes. This was an assessment of their responsibility for this assault, not a statement that each performed identical acts. The judge immediately explained that differences in sentence would arise from differences in personal mitigation, cooperation and Whittaker's circumstances after the offence.
At paragraph 33, the judge concluded there was “no alternative” to imprisonment for each offender. That did not mean each had to serve the term in custody. The next paragraphs distinguish the imposition of imprisonment from whether the term should be suspended: Churchill and McGillivray received wholly suspended terms, while Whittaker did not (paras 33–35).
At paragraph 37, the judge stated what the sentences would have been if there had been no guilty pleas. In plain English, this records the judge's assessment of the sentence differential attributable to the pleas in this case. It is expressly tied to the provision and qualifications mentioned in that paragraph and should not be treated as a general tariff for other assaults.
The most relevant factual features in this decision are a planned group assault intended to overpower someone, a victim asleep in a private bedroom, restraint that rendered the victim helpless, and the offenders' decision to leave while the victim remained in the hands of others with a known grievance against him (paras 7–14). The decision also turns on the judge's acceptance that these offenders neither knew nor suspected that the later murder would occur (para 10). A case involving different knowledge, different conduct, or a different relationship to the subsequent harm would not match that important factual premise.
The judgment is also useful for understanding how this judge approached differences between co-offenders who were treated as equally culpable for the offence but had markedly different personal histories. The judge imposed the same nominal term, yet suspended two sentences and not the third because of differences in criminal history, cooperation, rehabilitation and the practical effect of suspension (paras 18–35).
Other potentially significant features are the early practical timing of the pleas, candid police admissions by two offenders, and evidence of personal rehabilitation (paras 16–24). Whittaker's previous sentence, parole status and later custody circumstances were also material to his individual outcome (paras 25–29, 34–35). The case therefore illustrates a combination of offence seriousness and individualised sentencing factors, rather than a single fact that automatically determines sentence.
The judgment supplied here contains no later decisions discussing R v Churchill, McGillivray & Whittaker. It therefore cannot establish whether later courts followed, distinguished, applied or criticised it. The only other case it cites is R v Flaherty (No 2) [2008] VSC 270, which Kaye J refers to in paragraph 37 in connection with qualifications to the s 6AAA statement.
The decision's status and later treatment should not be overstated on the basis of this text. It is a Supreme Court of Victoria sentencing judgment by a single judge, addressing the appropriate sentences for three offenders on the facts accepted at their plea hearing. The judgment gives reasons that may be relevant to comparison with similar sentencing cases, but it does not itself describe any subsequent judicial history. An account of later treatment would require later decisions or another source, neither of which is included here.
The judgment leaves some matters unanswered in the text provided. Most directly, the final number of days to be reckoned as already served by Whittaker is not stated. Paragraph 35(c) records that Kaye J would discuss that calculation with counsel under s 18(4), rather than giving a completed calculation.
The judgment also does not reproduce the qualifications from R v Flaherty (No 2) that Kaye J mentions when making the s 6AAA statement (para 37). The precise content of those qualifications is therefore not ascertainable from this judgment alone. Nor does the judgment set out the full text or operation of ss 18(4) and 6AAA; it identifies the provisions in relation to the particular sentencing steps taken.
Finally, the judgment does not report subsequent appeals or later treatment of its reasoning. It also does not provide the outcome of Whittaker's separate outstanding charge of intentionally causing serious injury; it says only that counsel informed the court he would be pleading guilty and that he was to appear in the County Court in November (para 27). Those boundaries matter when using the decision: the source explains the sentencing reasons and orders in this case, but does not answer questions about later proceedings or later precedent.
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CRIMINAL LAW - Sentence - Assault - Accused combining to assault victim to remove victim from friend's house - Guilty plea.
Stuart Ward, Acting Solicitor for Public Prosecutions
1 Michelle Anne Churchill, Aidan Geoffrey McGillivray and Darren Whittaker. You have each pleaded guilty to the assault of Stephen John Witham at Berwick on or about 13 August 2006.
2 At the time of the offence, you, Churchill, had been a long-standing friend of Jodie Watson. At that time Watson was living in a relationship with Michael Flaherty at a unit in Van Der Haar Avenue, Berwick. In about June 2006 Stephen Witham began living in the unit. Shortly after he commenced to live there, Jodie Watson complained to you about the conduct of Witham. She told you that Witham had assaulted her after she had intervened in a fight between Flaherty and Witham. She showed you marks on her neck which she said had been caused by Witham. She told you that there was frequent conflict between Witham and Flaherty, and that Witham was frightening Jodie's young son Brock by threatening to leave him on the road outside while he was asleep. Watson told you, Churchill, that Witham was a very violent man, who she described as a "standover man". Watson and Flaherty had asked Witham to leave, but he had refused.
3 On the night of the assault, Watson contacted you, Churchill, and Watson asked you to assist her and Flaherty to evict Witham. In your interview with the police, you said that you understood that Watson was requesting you to assist in the forceful removal of Witham from that unit.
4 Accordingly you, Churchill, then contacted your co-accused, Aidan McGillivray. You told McGillivray what had been conveyed to you by Watson, and you, McGillivray, agreed to assist. At that time you were staying at an address in Cranbourne with your co-accused Darren Whittaker and his girlfriend. You told Darren Whittaker what Churchill had asked you to do, and he also agreed to assist. I should interpolate that you, Whittaker, are a man of large physique.
5 It is clear from the evidence, contained in the statement of you, McGillivray, and from your interview with the police, that you understood that your role on that night was to subject Witham to a beating, so that he could be persuaded to leave the unit at which Watson and Flaherty were then residing. You, Whittaker and McGillivray, then walked to Churchill's house. She repeated to both of you what she had told you, McGillivray on the telephone. In particular you, Churchill, told Whittaker and McGillivray that they needed to teach Witham a lesson and get him out of the house. The three of you then departed from Churchill's house in her vehicle and drove to Narre Warren. While you were en route you, Churchill, spoke to Watson on the telephone to ascertain where to go. You then proceeded to Van Der Haar Avenue where you parked. While you were there police pulled up and spoke to you. They took your names and addresses and then left.
6 Shortly thereafter Flaherty and Watson came and spoke to you. You then drove to their unit. After you alighted from your vehicle, Flaherty told you that Witham had assaulted them, that he would not leave the house, and that he was making their lives miserable. He said that he had requested Witham to leave on a number of occasions and he continued to refuse to do so. Watson and Flaherty requested you to overpower Witham, so that they could give him a beating and then throw him out.
7 The three of you then followed Flaherty and Watson inside their unit. You, Churchill, went with Watson to the kitchen. You, McGillivray and Whittaker, followed Flaherty, who was with another man, Clinton McRae, to the door of Witham's bedroom. Witham was then asleep. Flaherty and McRae entered the room. Flaherty yelled at Witham. As he did so, McRae took a swing at Witham with a weapon, which was either a bat or a pole. As Witham moved to avoid that blow, he was off balance. You, McGillivray, lunged at him and grabbed his arm. You then grappled with Witham, who fought back. As he struggled on the mattress you, Whittaker, grabbed Witham by the other arm. Between the two of you, you managed to pin Witham face down on the mattress. He was still struggling. As you held him there, Flaherty approached the bed with a dark cord or cable tie, and tied his two hands behind his back as if he were handcuffed.
8 At that stage you, McGillivray, thought that the matter was getting out of hand. Accordingly, you and Whittaker both decided to leave. You went to the kitchen, fetched Churchill, and the three of you departed.
9 Pausing there, it is the actions which I have just described by the three of you which constituted the assault of Witham, to which the three of you have each pleaded guilty. In fact, after you departed Flaherty wrapped Witham in a doona and placed him in the boot of Watson's vehicle. Watson, Flaherty and McRae then drove to a property at Turton's Creek. En route, Flaherty took possession of a shotgun and an ammunition belt. Flaherty drove a vehicle, with Witham still trussed in it, to a lonely and isolated bush location, where he murdered Witham by shooting him in the back of the head. Flaherty has pleaded guilty to, and been sentenced for, the murder of Witham.
10 On the evidence contained in the materials before me, I accept, without reservation, that none of the three of you had any inkling, on that date, that Witham would be murdered. I accept that each of the three of you understood that your role was to overpower Witham, so that he could be subjected to a beating, which would then enable him to be removed from the unit in which Flaherty and Watson were then residing. Although you, McGillivray, sensed that the matter had gone further than the original plan, when you observed Flaherty tie Witham up, I nonetheless accept that you did not have any expectation, or even any suspicion, that Flaherty intended to kill Witham.
11 It took some time for Witham's death to be discovered and confirmed. Ultimately, Flaherty, the three of you, and others, were arrested over the circumstances of the evening which led to his death. You, McGillivray, and you, Churchill, when interviewed by the police, each made full and candid confessions of your role in the events of that evening. You confirmed your accounts of what had occurred that night in signed statements to the police. You, Whittaker, exercised your right to remain silent, and made a no comment record of interview.
12 The offence for which you each stand to be sentenced by me is a serious instance of the crime of assault. The three of you combined, with two others, to inflict, or be a party to, what you understood would be a severe beating on a man who was to be overpowered and rendered helpless, while he was in what should have been the safety of his bedroom. The attack on Witham was premeditated, and was launched at a time when he was at a particular disadvantage, as he was asleep when Flaherty, McRae and you, McGillivray and Whittaker, entered his bedroom. Further, when you departed the premises, you callously and irresponsibly left Witham to the mercy of McRae, Flaherty and Watson. You knew that they held him a real grievance. You knew that they were particularly angry at and disaffected with him. Although, as I have stated, you are not to be punished for what ultimately occurred to Witham, nonetheless it was well within your contemplation that he might suffer real harm at the hands of Flaherty, McRae and Watson after you left him helplessly at their mercy.
13 Further, it is utterly unacceptable that, no matter what the perceived cause or provocation, people in our community feel they have a right to combine and take the law into their own hands in such a violent and irresponsible way. In your interview you, McGillivray, explained why it was that you were moved to assist Churchill on that night. You told the police of your situation as a single father, whose daughter had been mentally scarred by seeing her mother brutally bashed by another man while she was at a young age. The account of events given to you by Churchill touched a protective chord within you, as you felt acutely affected by the plight of Watson's young son Brock. Further, there was evidence before me that, as a child, you had been sexually assaulted. Nonetheless, you did not know Witham or Flaherty. It was none of your business to intervene in a dispute, on the say so of one party. Your actions were foolish, irresponsible and reprehensible.
14 Equally, you, Churchill, were a long-standing friend of Watson. I accept that you were moved to do what you did out of loyalty to her and out of your concern for Watson and her young son Brock. However, in the case of all three of you, you well knew that there were lawful avenues of redress available to Flaherty and Watson. While the realities of the situation may have led you not to have full confidence in those avenues, nonetheless you are each adult enough to know that they exist for the purpose of maintaining a just and civilised society. I repeat that it is simply unacceptable that people in your situation feel that they have any entitlement to take the law violently into their own hands and do what you did that night.
15 The gravity of the offence in this case requires me to give serious consideration to whether I should sentence each of you to a term of imprisonment. In order to determine whether that is an appropriate punishment for the three of you, it is necessary to identify whether there are particular mitigating circumstances which would warrant me adopting an alternative course.
16 In the case of each of the three of you, you have pleaded guilty. I accept that although there was some delay in making that plea, that delay was the product of the fact that there were other potential charges being considered against you. In that context, and in the context of what ultimately occurred, I accept the submission made on behalf of all three of you that your pleas of guilty were made at the first practically available opportunity. In a case such as this, where the victim's family has been subjected to considerable trauma and distress, your pleas of guilty are important mitigating circumstances. They not only manifest a preparedness on your behalf to facilitate the course of justice, but, importantly, they have spared the victim's family the distress of a contested trial in respect of your involvement in the tragic events of that night.
17 Further, in the case of you, Churchill and you, McGillivray, you both made candid and frank admissions to the police, both in your interviews, and in your signed statements. The prosecution accepts, and in my view correctly so, that your admissions were substantially frank and truthful. It stands to your credit that you both were prepared to cooperate in the manner in which you have. In my view, that cooperation also involves you each candidly acknowledging the wrongfulness and criminality of your actions.
18 Further, both you, McGillivray and you, Churchill come before me without any previous convictions. I was informed by your counsel that neither of you have any subsequent matters pending against you.
19 I turn to the matters which are personal to each of you. You, Churchill, are now 40 years of age. You have two sons. The eldest is 16 years of age, and your youngest child is 2½ years of age. You are a single parent who has assumed sole or substantial responsibility for the upbringing of your two children. I note that your eldest child has undertaken an apprenticeship in recent times. There are, I consider, two main mitigating circumstances attaching to your background and personal particulars. First, since you left school after Year 9, you have been in substantially regular employment, until the birth of your second child. After you left school you first worked with Safeway for five years, and then for almost a decade you worked for the Wagstaff Abattoir in Cranbourne. After you left that employment you undertook other work. Your last period of employment, before your youngest child was born, was with La Porchetta's Restaurant in Cranbourne, by whom you were employed for 2½ years. Your work record demonstrates that you do have the ability to be a productive and useful member of the community.
20 The second mitigating circumstance in your favour is that since your early 20s you have suffered from Crohn's disease. It seems that the medication prescribed for you has not been wholly successful in controlling that unfortunate condition. You have had a number of bouts of pain and bleeding. You have been hospitalised on seven occasions since 1992. Indeed, you last attended hospital on the weekend before your plea was made before me. Your debilitating condition is relevant for at least two reasons. Firstly, it is commendable that notwithstanding that condition you have lived a productive life both in your work and in raising your two children. Secondly, it would seem that a term of immediate imprisonment would bear more harshly on you because of your medical condition.
21 I turn then to the relevant circumstances relating to you, McGillivray. You are 27 years of age. You were educated until Year 9 level. You had difficulties as a student because you suffered from Attention Deficit Disorder. After you left school you commenced an apprenticeship as a vehicle body maker. Unfortunately you did not complete the apprenticeship, having undertaken three years of it. You then worked in a number of labouring positions, before you worked in a radiator shop for a couple of years.
22 It would seem that about five or six years before the offence, you had drifted into the use of illicit drugs. Your sister Kirstie, who gave evidence before me, told me that at first your family did not recognise the change in your lifestyle. However, after a couple of years she and your parents noted a change, for the worse, in your behaviour. You failed to live up to your commitments to your family and to your young child. You became irritable and moody, and were defensive when you were confronted by your family with your failure to fulfil your responsibilities. It was during that time that you became involved in the offending in this case. I have no doubt that your drug-fuelled lifestyle diminished your sense of responsibility and your sense of judgment. While that is not a mitigating circumstance, it does explain how a person such as yourself, with such a good family background, so readily agreed to become involved in the outrageous conduct which you committed on that night.
23 Fortunately, shortly before your arrest earlier this year, it seems that you had, of your own volition, recognised the problems that you were making for yourself from your lifestyle. Your sister Kirstie, who was an impressive witness, told me that you appeared to have become tired of the lifestyle which you had embraced. You started to become more regular in your habits, and more reliable in fulfilling your responsibilities to your young daughter. Your family had begun to comment on how you had begun to turn the corner. At about the same time you had commenced a relationship with your current girlfriend, Cherie. You have been spending more time with your daughter. In addition, you have been working in your girlfriend's home renovations business, albeit on a part time basis. Your sister Kirstie told me that you are not of violent disposition.
24 In light of the evidence given by your sister, I am prepared to accept that, from shortly before the time of your arrest, you had embarked on, and have since then continued, the path to rehabilitation. Your lack of previous convictions leads me to have some confidence that your rehabilitation will continue to be successful. That confidence gains support also from the testimonials of your parents, and your partner, Cherie, which were tendered on your plea. To your credit you are a good father, particularly since you have abandoned the lifestyle which you had embraced during the time of your offending. It is a credit to you, and to your parents and siblings, that you have assumed responsibility for the upbringing of your young daughter, Sherae. I take all those matters into account in mitigation of your sentence.
25 The circumstances involving you, Darren Whittaker, are unfortunately somewhat more complex. You are 26 years of age. In March 2002, you were convicted at the County Court on two counts of culpable driving causing death, and two counts of causing serious injury negligently. As the result of an appeal by the Crown to the Court of Appeal, you ultimately were sentenced to a term of imprisonment of five years, with a minimum non-parole period of three years and six months. You were released on parole in August 2005, just one year before the events which bring you before me in this case. Thus, you committed the present offence while you were on parole. While your previous conviction is of an entirely different character to the events which bring you before me, nonetheless you do not come to this Court as a man with no previous convictions. Further, and more importantly, it is a matter of concern that you offended in this case just 12 months after your release, and while you were still on parole. Your all too ready agreement to be involved in the assault on Witham is a disturbing manifestation of your disregard for the law, and for the norms of a decent civilised society.
26 There are further complications in your case. In November 2006 - well before your arrest in this case - you were arrested and remanded in custody on a subsequent firearm possession charge. You remained in custody on that charge until January 2007. Ten months later, in November 2007, you were arrested, and remanded in custody, on a charge of intentionally causing serious injury. That arrest caused your bail to be revoked in respect of the firearms matter. On 3 March 2008, you were sentenced for the firearms matter at the Melbourne Magistrates' Court to a term of imprisonment of 197 days. That sentence covered the entirety of your pre-sentence detention. You then remained in custody, from 3 March until 26 March 2008, on the charge of intentionally causing serious injury. Then, on 26 March, you were charged in relation to this matter, and you have remained in custody since. As the circumstances of this case preceded the circumstances of the intentionally causing serious injury charge, in effect, you have been in custody on the present charge of assault since 26 March 2008. Thus at the time of the plea you had been detained in prison for a period of approximately six months in respect of the charge which is before me.
27 All of the matters which I have detailed, relating to your terms of detention since August 2006, are of course matters which are not to be taken into account against you. They are, however, relevant because they preclude any sensible suggestion being made that since the events of August 2006 you have reformed or rehabilitated. Further, I was informed by your counsel that you will be pleading guilty to the charge of intentionally causing serious injury, which is outstanding against you. You will come before the Melbourne County Court in November in relation to that charge. All of those circumstances make the decision as to the appropriate disposition of you somewhat more complicated.
28 In your favour, before your conviction and incarceration for culpable driving, you did not have any previous convictions. In the three years since you had left school you had been involved in a number of labouring jobs. While, as I have remarked, it is a matter of concern that you so readily agreed to be involved in the assault that was to take place on Witham, as events transpired the amount of force used by you on that night was quite moderate. You certainly did not indulge in any gratuitous act of violence to Witham. I also take into account that you were not the instigator of the attack on Witham. Further, I take into account that you, for misguided reasons, felt that there was some cause for the assault to take place. However, I repeat that it is completely unacceptable for persons such as yourself to resort to violence in the way in which you did on that night.
29 It is unfortunate that a young man such as yourself has now spent so much time in custody since the age of 19 years. I do not know anything about the circumstances of the other matters which have brought you before the law subsequent to the events of 13 August 2006. However, the events of that night reveal to me that you are singularly lacking in good sense and good judgment. It is to be hoped that sooner rather than later you will come to your senses, and learn to think before you act, otherwise you may end up spending a substantial part of your life in trouble before the law.
30 In determining the appropriate sentence to be passed on each of you, I consider that I should act on the basis that you were each equally culpable in respect of the offence to which you have pleaded guilty. While the roles of each of you were somewhat different, nonetheless your culpability for the assault on Witham was, I consider, for all relevant purposes equal. Any difference in the sentence to be imposed on each of you arises from, first, the different mitigating circumstances which I have elicited from your personal circumstances, secondly, from the candour and cooperation of you, Churchill and McGillivray, and, thirdly, from the complicated position of you, Whittaker arising out of events which have occurred since this offence.
31 In determining the appropriate sentence in respect of each of you, it is necessary not only for me to take into account your personal circumstances, but also to pass a sentence which adequately reflects the seriousness of your offending, and which properly expresses the community's condemnation of your conduct. Further, it is important that the sentence which I impose on you be of sufficient severity to deter other like-minded individuals from taking the law into their own hands, and acting violently as you did.
32 Bearing those matters in mind, I have given consideration to the various sentencing dispositions which were the subject of submission before me by your counsel. On your behalf, Churchill, your counsel, Mr Zebrowski submitted that I should enter a conviction against you, and adjourn the matter on your own undertaking. While I have given that sentencing option some consideration, particularly in light of your lack of previous convictions, on reflection I do not consider that such a sentence would properly express the community's and the Court's condemnation of your conduct, or act as a sufficient deterrent to other like-minded individuals. In the case of both you Churchill, and you Whittaker, I do not consider that the options of a community based order, a fine, or an intensive corrections order are open for practical purposes. Further, I am of the opinion that neither a community based order nor a fine would be adequate to cater for the gravity of your offending.
33 Ultimately, and after giving the matter some anxious consideration, I have come to the conclusion that there is no alternative other than to sentence each of you to a term of imprisonment. The only question which arises is whether, in the case of any of you, I should suspend that term of imprisonment. There are compelling reasons why I should sentence each of you to a term of immediate imprisonment, particularly in light of the serious features of your offending, and of the need for your sentence to serve as a specific deterrent to each of you, and as a general deterrent to others. However, in the case of you, Churchill, and you, McGillivray, I have been persuaded to wholly suspend the term of imprisonment which I shall pronounce upon you. I have reached that conclusion based on your lack of previous convictions, your pleas of guilty, your ready cooperation with the police, and the steps which both of you have taken to rehabilitate yourselves. In my view, it would be in the interests of the community if your terms of imprisonment were wholly suspended, in order that both of you be able to continue with your rehabilitation.
34 As I have already remarked, the case of you, Whittaker, is somewhat more complex. Theoretically, it would be possible to suspend the term of imprisonment which I am to pronounce upon you. However, for practical reasons it would seem to me that such a sentence would be ineffectual. In effect, if I were to suspend the term of imprisonment upon you, there would be no practical sanction for any breach of that suspended sentence, since the term of imprisonment which I shall impose will be no more than the period for which you have already been detained in respect of this offence. Furthermore, your circumstances are also different to those of McGillivray and Churchill, as you do not gain a credit for cooperation with the police, you have a previous conviction, and you are unable to demonstrate any progress to rehabilitation.
(a) Michelle Anne Churchill. I sentence you to three months' imprisonment. I order that the whole of that sentence be suspended for a period of 24 months.
(b) Aidan Geoffrey McGillivray. I also sentence you to three months' imprisonment, the whole of which I suspend for a period of 24 months.
(c) Darren Whittaker. I sentence you to three months' imprisonment. Because of the complicated nature of your current situation, I shall discuss with counsel the number of days I should declare as the period reckoned as already served under the sentence pursuant to s 18(4) of the Sentencing Act 1991.
36 In the case of each of you, Churchill and McGillivray, you should understand that you will not be required to spend any time in custody. However you must not commit any further offence which is punishable by imprisonment during the term of the suspension of your sentence. Should you do so you may be required to serve some or all of the suspended sentence.
37 As I have already observed, I have taken into account, as a mitigating factor, the circumstance that you have each pleaded guilty at what I regard as the earliest practical opportunity. Bearing in mind the qualifications I stated in my ruling in R v Flaherty (No 2)[1], pursuant to s 6AAA of the Sentencing Act 1991, if you had not pleaded guilty, I would have sentenced you, Churchill and McGillivray, to a term of immediate (unsuspended) imprisonment of three months each, and you, Whittaker, to a term of imprisonment of four months.
R
Churchill, McGillivray & Whittaker [2008] VSC 393
Each defendant was sentenced to three months’ imprisonment; the sentences for Churchill and McGillivray were wholly suspended for 24 months, and the period to be reckoned as already served by Whittaker was left for discussion with counsel.