R v Dunn [2020] VSC 708

Darcy McNamara is sentenced for his involvement in the murder of Nathan Day

1 Last Thursday 22 October, I sentenced Darcy McNamara to 20 years' imprisonment with a non-parole period of 14 years for his involvement in the murder of Nathan Day at Wangaratta on 26 July 2018.[1]

2 On that coolish winter's evening, while in the bedroom of Mr McNamara's home unit, Mr Day's throat was cut with a sharp implement, which also severed his carotid artery. He bled so heavily that the room was saturated in places and blood was spattered against a chest of drawers. Sadly, he died then and there. He was only 35. With little ceremony and even less dignity, Mr Day was buried in a shallow grave in the side garden of the unit. Nearly six weeks later, on 5 September, police exhumed his body.

3 A moment ago, I spoke of Mr McNamara's "involvement in" this murder. I did so deliberately because he was sentenced, in his separate case, not as the one who cut Mr Day's throat, but as one who nevertheless was complicit in that murder by another man, Phillip Dunn.

Mr Dunn's murder charge withdrawn; pleads guilty to assisting an offender

4 Mr Dunn lived just a few doors down the street from Mr McNamara and often drank copious amounts of alcohol with him and Mr Day. As I have just implied, he too was at the unit on that fatal night. Initially, he was charged with the murder of Mr Day. At the time of Mr McNamara's plea hearing on 11 September, Mr Dunn was awaiting trial on that charge.

5 In the interim, however, Mr Dunn's case resolved. On 25 September, the Director of Public Prosecutions withdrew the murder charge by filing over the original murder indictment a new indictment charging Mr Dunn instead with assisting an offender.[2] (The offence is also described sometimes as being an accessory to murder, or what used to be called being an accessory after the fact to murder.) In particular, the Director alleges that, knowing or believing Mr McNamara (alone) murdered Mr Day, Mr Dunn did various acts (including disposing of incriminating items) with the purpose of impeding the apprehension, prosecution, conviction or punishment of Mr McNamara. Mr Dunn pleaded guilty upon arraignment.

6 On 16 October, I heard the prosecution opening and Mr Dunn's plea in mitigation. In addition, I heard further submissions this morning. It is now my task to impose sentence upon him for that crime.

7 As I remarked when sentencing Mr McNamara, the ways in which these two cases have settled gives rise to a situation that, to some, may seem quite odd, or even inconsistent.

8 In short, the case against Mr McNamara settled on the agreed basis that, while Mr Dunn inflicted the neck wound to Mr Day, and thereby murdered him, Mr McNamara was liable for murder because he encouraged, assisted or directed Mr Dunn to assault Mr Day while being aware that it was probable that Mr Dunn would murder him.

9 On the other hand, the case against Mr Dunn subsequently settled on the agreed basis that he did not murder (or even have a part in the killing of) Mr Day but that he was, in the shorthand way I described a moment ago, an accessory after the fact to murder committed by Mr McNamara (alone).

10 So, how can it be that, in the case against Mr McNamara, Mr Dunn is - and Mr McNamara is not - Mr Day's killer but that, in the case against Mr Dunn, Mr McNamara is - and Mr Dunn is not - the killer?

11 Curious though it may seem, this apparently Janus-headed outcome is one that the law allows.[3] When sentencing Mr McNamara, I explained why that is so.[4] I shall not repeat the detail of that explanation here, other than to repeat these four fundamental propositions. First, how cases like these settle is a function of the Director's prosecutorial discretion and the agreement of the accused in question based on the evidence admissible, and concessions made, in that accused's case, both of which may be quite different in important respects in the case of the co-accused. Secondly, despite much commonality, those differences are pronounced in the respective cases for and against Mr Dunn and Mr McNamara. Thirdly, neither the way in which the case settled against Mr McNamara nor the reasons I gave for sentencing him may be taken as any finding whatsoever either for or against Mr Dunn. Finally, and equally, neither the way in which the case settled against Mr Dunn nor the reasons I am about to give for sentencing him may be taken as any finding whatsoever either for or against Mr McNamara. Instead, these matters in one case are irrelevant to the other case.

12 Consistently with the foregoing points, it will be seen that the summary of the Director's case against Mr Dunn is quite similar in many respects to the summary in Mr McNamara's case, but quite different in others.

13 Returning to the sentencing of Mr Dunn, there is no dispute that he must receive a term of imprisonment for his offence of assisting an offender. The main issues to be determined concern the duration of that prison sentence, whether it is to be combined with a community correction order ("CCO") upon release or whether a more conventional head sentence with a non-parole period should be imposed.

14 Numerous competing factors go into the selection of such a sentence, some of which concern the offence, while others concern the offender. As will be seen, in this case, matters pointing in one direction include the serious nature of the crime of assisting an offender, its maximum penalty (of 20 years' imprisonment), the more serious features of this particular offence, and its impact on Mr Day's family and friends. Among the matters pointing in the other direction are the mitigating factors, which include Mr Dunn's admissions, his plea of guilty and remorse, and his prospects of rehabilitation. A consideration which limits leniency, and which adds to the weight to be accorded to sentencing purposes such as the need for specific deterrence and protection of the community, is Mr Dunn's extensive prior history for violent offending. As will also be seen, another important consideration in this case is the inter-relationship between the sentencing purposes of community protection and rehabilitation and the principle of proportionality.

15 Prior to announcing the sentence in this matter, it is necessary that I summarise the background to, and events surrounding, the death of Mr Day. This will take some time because, in the main, the summary will reflect the very detailed and painstakingly prepared opening of the case read to the Court by Mr Dickie, who appeared with Ms Goding for the Director. Then I shall outline the victim impact statements filed by Mr Day's loved ones, and discuss the nature and gravity of Mr Dunn's offending, the factors in mitigation and the various applicable sentencing principles and purposes. I shall also discuss the pre-sentence report provided by Melbourne Community Correctional Services.

Summary of background to, and events surrounding, offence

16 As I have said, Mr Day (who was also known as Nathan Chambers or "Pockets") was only 35 when he died. He is survived by his mother, his sister, his former partner and their eight-year-old son.

17 Mr Day had longstanding issues with alcohol abuse and homelessness. He often slept rough in makeshift camps under bridges along the Ovens River, and at other times couch-surfed with friends and associates.

18 Prior to his death, Mr Day was cared for by Betty Torney, whom he called "Gran". Mrs Torney supported Mr Day with food and money. He would often sleep and bathe at her home in Wangaratta. They met through the Victory Church, which was at 38-42 Ryan Avenue.

19 At the time of the offending, Mr Dunn was aged 59. He is 61 now. He lived at 1 Ryan Avenue. In April 2017, Mr Day lived for a short period at Mr Dunn's home, but that arrangement ended after a fight between them. The incident resulted in Mr Dunn being charged and spending time in custody, albeit not for any offending against Mr Day.

20 At the relevant time, Mr McNamara was 41 years old, nearly 42. He is 44 now. From 2016, Mr McNamara lived alone at Unit 1, 11 Ryan Avenue, which was just down the street from Mr Dunn.

21 Mr McNamara, Mr Dunn and Mr Day were all acquainted with each other. Their relationships were complex and changeable. Like Mr Day, Mr McNamara and Mr Dunn were heavy drinkers. There were episodes of aggression, fighting, property damage or threats between each of them.

22 Around the middle of the day of the murder, Thursday 26 July 2018, Mr Day was at Mrs Torney's house. Bruce Hordern, the Victory Church pastor, was also present. Mr Day was upset about some things he believed were being said about him by a person called Kim Turner. He left Mrs Torney's house to go for a walk, leaving behind his belongings, including his mobile phone. Pastor Hordern thought that Mr Day was in good spirits when he left. Mrs Torney and Pastor Hordern were the last people, other than Mr McNamara and Mr Dunn, known to see Mr Day alive.

23 At about 11:40 a.m., Mr McNamara was visited at his home by Jacqueline Anderson, a support worker at a mental health support organisation. Ms Anderson had recently taken over case management of Mr McNamara. She had not met him before. Mr McNamara presented to her as agitated and anxious. He told her that he was worried and felt unsafe, and that a gang of people were after him. This was apparently related to some unspecified incident the previous week. Ms Anderson left after ten to fifteen minutes, as she was unable to perform her role while Mr McNamara presented in this agitated state. She said she would return later in the day to check on his welfare.

24 At about midday, Mr McNamara went to the house of his neighbour Belinda Field at 13 Ryan Avenue and asked to borrow a jerry can of fuel. Ms Field and her son Daniel spoke to Mr McNamara. He appeared to Ms Field to be drunk and in a bad mood. When his request for the fuel can was refused, Mr McNamara yelled abuse and left. He later returned, at which point Ms Field had left to attend the Victory Church to speak with Pastor Hordern about the situation. Mr McNamara punched the wooden panel next to Ms Field's door, kicked the door and threatened to kill Daniel Field, who was inside. Mr McNamara yelled more abuse and kicked the letter box as he left. Police were called and, after 12:40 p.m., attended Mr McNamara's home. They spoke with Mr McNamara through the front security door. He appeared alcohol-affected, was rambling and did not make much sense.

25 At 2:08 p.m., Mr Dunn called triple-zero to report that someone was trespassing on his property, breaking windows and attempting to enter his house. He said the person was a bloke called Darcy, who lived down the road, and that he was "with some bloke that I knew a fair while ago". (I pause to note that Mr Dickie conceded that the Director cannot identify the other man, although it is likely to have been Mr Day.) In any event, police attended. Mr Dunn showed them three windows which he said had been broken that morning by Mr McNamara. He said he did not want any police action taken.

26 At about 3:06 p.m., Ms Anderson returned to Mr McNamara's unit. His presentation had changed since her earlier visit. He now appeared intoxicated. He was erratic and agitated, but friendlier. He appeared paranoid, saying people were coming to get him, and that it would all be clear soon.

27 A short time later, police attended Mr McNamara's unit in response to Mr Dunn's report. Upon Ms Anderson's request, Mr McNamara unlocked the flywire screen door and let her out of the unit. He spoke briefly to police through the security door.

28 Later that afternoon, Mr Day and Mr Dunn were present at the unit of Mr McNamara, who was home at the time. Mr Day had consumed alcohol. It is likely the others had too. It is also likely that there was an argument.

29 From about 7:30 p.m., a resident who lived nearby heard raised screams from the direction of Mr McNamara's home. Just after 8:00 p.m., from the same area, the resident heard a man yell:

I'm gonna kill ya. You're nothing but dogs. I don't give a fuck what happens to me. You're nothing but cunts, I'm gonna get ya.

30 The man repeated this a couple of times. He also repeatedly yelled, "What are you looking at?" and "I don't care what happens to me." The resident rang triple-zero to make a report. Police drove past but did not observe anything untoward. It appears likely that all three men were present at Mr McNamara's home at this time. (Mr Dickie conceded, however, that the Director is unable to say who uttered those words.)

31 At some point in the evening, Mr Day was stabbed to his neck. This caused a deep incised wound that severed his carotid artery and caused his death.

32 For the purposes of Mr Dunn's plea hearing, the Director accepts that Mr McNamara inflicted the wound, intending to kill Mr Day, and that Mr Dunn later assisted Mr McNamara knowing or believing that he (Mr McNamara) had murdered Mr Day.

33 The location and analysis of blood stains that were later found indicated that Mr Day was killed in the bedroom near the foot of Mr McNamara's bed. A spatter pattern of blood from Mr Day indicated that force was applied to his liquid blood in the vicinity of the drawers against the west wall of the unit, near the foot of the bed. Dilute saturated blood staining was observed on many areas of the carpeted floor of the bedroom. It was most concentrated in the area at the foot of the bed near the chest of drawers. Mr Day would have remained in that position for a period of time, bleeding heavily.

34 Mr Dunn was present when Mr Day was murdered. Either at the time of the infliction of the fatal wound or shortly afterwards, Mr Dunn was close enough to him for Mr Day's blood to end up on his hands, shoes and clothes.

35 Between just after midnight and about 3:00 a.m. the next morning (Friday 27 July 2018), Mr Dunn attended the house of his friend David Gottschling at 55 Mackay Street in Wangaratta. Mr Dunn is likely to have walked there directly from Mr McNamara's home. He had blood all over his hands and on his shoes. Mr Dunn told Mr Gottschling, "We did something really bad, me and Darcy." He said, "Darcy's fucking mad" and "took it too far." Mr Dunn told Mr Gottschling "it" made a lot of noise and it was a wonder no-one heard it. At the time, Mr Gottschling assumed that the men had killed one of Mr McNamara's many cats. Mr Dunn brought a paint scraper with him, which he left behind. He also left his shoes in Mr Gottschling's recycling bin, and took a pair of Mr Gottschling's shoes to wear instead.

36 At about 8:30 a.m. on Friday 27 July 2018, police attended Mr McNamara's home regarding an unrelated incident. He mentioned to police that his front lounge room window had been broken the previous evening. He said that he believed Mr Dunn caused the damage, as they did not get on very well. Mr Dunn walked past as police were leaving. Mr McNamara came out of his unit, and he and Mr Dunn yelled abuse at each other.

37 On Tuesday 31 July 2018, a police officer attended 1 Ryan Avenue in response to a call from Mr Dunn, who had complained about Mr McNamara. Mr Dunn said that Mr McNamara kept coming to his house, trying to get cigarettes off him, and would not leave. Mr Dunn did not want him coming around.

38 The police officer then attended Mr McNamara's home and spoke to him. When he told Mr McNamara that he had just spoken with Mr Dunn, Mr McNamara said, "What did he say? What did he tell you I'd done?" The police officer explained that Mr Dunn had not said anything. He told Mr McNamara not to go to Mr Dunn's house anymore.

Assistance provided by Mr Dunn to Mr McNamara

39 At an unknown time, Mr Day's body was moved from inside Mr McNamara's unit to the side yard. The body was partially buried in a shallow grave, with debris and household items piled on top. Inside the unit, Mr Day's blood was cleaned from the floor where it had pooled. A rug was placed over the wet carpet, which transferred the blood to its underside. Mr McNamara was involved in the burial of Mr Day and the clean-up. It is not alleged that Mr Dunn was involved in these acts.

40 However, in addition to disposing of his own blood-covered shoes at Mr Gottschling's house in the early hours of the morning on 27 July 2018, Mr Dunn provided the following assistance to Mr McNamara knowing or believing he had committed murder and with the intention of impeding his apprehension, prosecution, conviction or punishment:

(a) Mr Dunn provided Mr McNamara with cleaning products, understanding that they may be used to clean up Mr Day's blood.

(b) He showed Mr McNamara spades and shovels he owned, understanding that they may be used to bury Mr Day.

(c) He disposed of a knife connected to the murder.[5]

(d) After Mr Day had been noticed missing and this had been reported to police, Mr Dunn suggested to others that Mr Day might still be alive:

(i) On about 7 August 2018, Mr Dunn told Rosemary Massey, a Salvation Army chaplain, that he had been drinking with Mr Day and Mr McNamara the day Mr Day went missing. He told her an argument broke out and Mr Dunn went home. He said he returned to Mr McNamara's unit where he saw a homosexual act between Mr Day and Mr McNamara that disgusted him. He told her that he thought Mr Day had gone to Melbourne. He indicated to Ms Massey this was told to her in strictest confidence

(ii) On about 27 August 2018, when asked by Melissa Doherty if he knew anything about where Mr Day was, Mr Dunn told her that Mr McNamara, whom he referred to as Mr Day's boyfriend, had received a call from Mr Day. He told her Mr Day had been calling from the Docklands or Flinders Street. He told her not to tell anyone that he was the source of the information.

(iii) On a date after Mr Day had gone missing but before he was found, Robert Wyllie heard Mr Dunn tell others, at the home of Paul Hayes and Bradley Chalk, that Mr Dunn was probably in Geelong or Seymour and would be back in a few days.

(iv) On 30 August 2018, when local police officers attended his home inquiring about his knowledge of Mr Day's whereabouts, Mr Dunn said he had not seen him for over a month and not since before being locked up in Wangaratta for ten days (this being on or before 8 July 2018).

Further conversations with others about Mr Day's disappearance

41 There were also other occasions on which Mr Day's disappearance came up in conversations amongst Mr Dunn and his friends.

42 On an occasion after Mr Day was murdered but prior to his body being discovered, Mr McNamara and Mr Dunn were at an address in Norton Street where Paul Hayes and Bradley Chalk lived. Alcohol had been consumed. Mr Hayes and Mr Chalk heard Mr McNamara say to Mr Dunn, "You're going to give me up." After this, Mr McNamara got up and left. Mr Dunn told the others he had been stomping on Mr Day's legs and saw Mr Day take his last breath.

43 The Director accepts that the reference to stomping may have been drunken talk on Mr Dunn's part. In any event, he does not fall to be sentenced for any assault.

44 Mr Dunn told Mr Chalk, "Pockets is gone. They're never gunna find him." Mr Chalk recalls this being said as if Mr Dunn tried to brush it off, as if it was someone else's fault.

45 In mid-August 2018, Mr Dunn encountered a mutual associate of Mr Day, Donna Hart, in a Wangaratta supermarket, where he said to her, "It's a blessing that he's no longer around. It couldn't have happened to a better fella."

46 Raymond Bodsworth recalls Mr Dunn telling him on 3 September 2018 that he knew where Mr Day was and had seen him take his last breath. Mr Dunn told Mr Bodsworth that he and Mr McNamara had buried Mr Day in the back yard. He said that they strangled him and bashed him with a weapon. This is relied upon only as an admission of Mr Dunn's awareness of Mr Day's murder, and nothing more.

47 On 5 August 2018, Mrs Torney formally reported that Mr Day was missing. Police enquiries commenced. This led to a media release, as well as posters seeking information being posted in Wangaratta on 30 August 2018.

48 As mentioned earlier, on 31 August 2018, local police attended Mr Dunn's address and spoke with him. They also attended on 1 September 2018. Police also spoke with Mr McNamara and conducted other inquiries.

49 On Monday 3 September 2018, detectives from the Missing Persons Squad of Victoria Police took over the investigation.

50 On Tuesday 4 September 2018, a VARE was conducted with Mr Gottschling, who confirmed matters earlier disclosed to police, including that Mr Dunn had attended his home with blood-covered hands and said he and Mr McNamara had done something bad.

51 At about 12:12 p.m. on 4 September 2018, Mr Dunn was arrested in Benalla Rose Gardens for being drunk and disorderly. When speaking with arresting police, Mr Dunn told them he wanted to tell them about a murder. He said it was the murder of Nathan Day and that Darcy McNamara had done it.

52 Mr Dunn was taken to Benalla Police Station where he spoke to a detective and other police officers at the counter. Police asked Mr Dunn if he wanted to tell them about what he knew about Mr Day. Mr Dunn said that he did and that Mr Day was "deady bones". Shortly after that, when taken to an interview room, Mr Dunn also provided further information in a conversation (which was more in the form of an interview) that police covertly recorded in part. Mr Dunn was heavily intoxicated at this time. The Director ultimately resolved not to lead the latter conversation at any trial, and I ruled the conversation at the counter out of evidence.[6]

53 At about 6:40 p.m., immediately after being released from the cells for being drunk, Mr Dunn was arrested by officers from the Missing Persons Squad.

54 At 10:07 p.m., police attended Mr McNamara's unit and arrested him as well.

55 On Wednesday 5 September 2018, a search warrant was executed at Mr McNamara's unit. At about 4:40 p.m., Mr Day's body was found buried in the small garden bed against the eastern fence line. The grave, such as it was, was underneath a pile of objects that included broken chairs, parts of the top of a table, pieces of carpet and other rubbish. Portions of Mr Day's hair and right hip were visible above the soil.

56 I mentioned earlier that the location and analysis of blood stains found at the unit indicate that Mr Day was killed in Mr McNamara's bedroom. I shall not repeat the detail of that evidence here.

57 Mr Dunn's home at 1 Ryan Avenue was also searched. A spade, a mop and mop buckets were found in his front bedroom.

58 Mr Day's body was exhumed and transported to the Victorian Institute of Forensic Medicine in Southbank. On 6 September 2018, an autopsy was conducted by forensic pathologist Dr Paul Bedford.

59 A largely horizontal incised wound was found on Mr Day's right neck. The wound was about 90 millimetres long and 20 millimetres deep at its deepest point. The same wound also transected Mr Day's carotid artery, which caused his death. There was some undermining on the superior aspect of the wound, indicating that the edged weapon had been angled slightly upwards (by the body's orientation) at the time the wound had been inflicted.

60 Dr Bedford also observed a fracture to the cornua of Mr Day's right hyoid bone. While this could indicate that there had been some strangulation, Dr Bedford could not exclude the possibility that the fracture was associated with the infliction of the incised wound.

61 No other injuries were found that could be associated with Mr Day's death. There were no defensive injuries.

62 Blood samples disclosed that Mr Day's body had a blood-alcohol content of 0.29 grams per 100 millilitres, with 0.26 grams per 100 millilitres of alcohol in the urine. Because of post-mortem changes, it is not possible to ascertain what Mr Day's blood-alcohol content would have been at the time of his death.

63 Mr Dunn was interviewed by police on 4 September 2018 in Benalla and on 5 September 2018 in Wangaratta. The interviews were suspended on a number of occasions, initially for Mr Dunn to sober up and sleep and then to obtain legal advice and for an independent third person to be present.

64 At about 12:35 p.m. on 5 September 2018, when cautioned and told of a further suspension, Mr Dunn indicated he was just a witness to what happened and that the front door to Mr McNamara's unit was locked on him. With respect to what happened afterwards, he said the following:

But he [Mr McNamara] come down and asked for money, well, Spray and Wipe shit to clean his flat up, a shovel, mattock and ... And he - also I dropped around to his joint a week or so after ... the occurrence and said - it was in the dark, he said, "Can you smell anything?" and he did tell me the bloke was buried.

65 From about 6:32 p.m. on 5 September 2018, when formally interviewed, Mr Dunn said that on 26 July 2018 he drank red wine with Mr McNamara and (then) went and bought a bottle of tequila. He said Mr McNamara went home and about half-an-hour later he visited Mr McNamara's unit. He claimed to have been locked out but, through the flywire door, saw Mr McNamara and Mr Day together in the bedroom, Mr Day with his pants down. He said that, after he (Mr Dunn) asked, "What's that bloke doing there?" Mr McNamara thumped Mr Day, who went down. He said he thought Mr McNamara had choked the life out of him. Mr Day was prone and not moving at all. Mr Dunn said he just left, not wanting to know anything about it, and went and saw his friend Mr Gottschling.

66 Mr Dunn said he went home later that morning, just wanting to get away from it all. He said:

Well, Darcy approached me, he come around to me house, fuckin' carrying on and hiding out and then he threatened to kill me inside me own joint. He said I would, I um, I what did he say? He said I - I - I caused it, I - I programmed him, I told him to do it, it was all my fault. And I'm, if he - if he goes down, if I dob him in or he gets caught and he goes down, I'm going down with him. But anyway ... that was that. He kept on coming back asking for tobacco, for cleaning products, he took some cleaning products from my house and when he - when he actually threatened me that first morning after it initially happened, I got out of the house and left him in there. He was completely on his own in my house and he did sleep in a bed and he took a knife up to his joint and cleaning products. And then he brought the knife back to my joint, he was covered in blood all over his face and he said he's [Mr Day's] got a home now, he's got a permanent home. And I said, "Bloody whatever." I thought he'd put him in the big bin ... He wanted money for a bloody shovel and shit. He said his [Mr Day's] leg was hanging out of the fuckin' garden, couldn't get him - the hole fuckin' deep enough. And he brought that friggin' knife back and I fuckin' thought he was planting evidence in me fuckin' joint so I threw [it] in the creek. I know where the fuck it is, I know where the fuckin' knife is, it's in the creek there somewhere. I know where I put it. And on and on he went about money for fuckin' cleaning products and tobacco.

67 Mr Dunn said he told Mr McNamara to "fuck off" after he came around and smashed his window. He said that, on another occasion, Mr McNamara kicked his door in. Mr Dunn rang the police several times and eventually got it into Mr McNamara's head that he did not want him around his joint.

68 Mr Dunn went on to claim he thought it was all staged and that Mr Day was still alive. He then said:

Darcy also wanted me to help him dispose of the body. And no way known I'd look at someone dead or help cut up or anything he might have had in mind. I don't want to have that in my memory. ... He asked me around to his joint one dark night. ... He opened his fuckin' side gate up to his garden and said, "Can you smell anything?" I said, "No," and took off. He implied that the fuckin' body was there, buried, half buried without a leg - with a leg sticking up but I don't fuckin' know.

69 Mr Dunn said he did not need this extra bullshit in his life:

I've got fuckin' bipolar and I drink - fuckin' drink a bit of alcohol to - to just fuckin' trying to get along with fuckin' life. It doesn't help and I don't have ... Well, I - no, I just don't know how to deal with this shit. ...

70 He said he had told others, including his lawyer Mr Clancy, the Salvation Army chaplain and police, that Mr McNamara was a killer.

71 Mr Dunn repeated his claim of visiting and seeing events from outside the flywire door, describing seeing a mug in Mr Day's hand, but then only seeing Mr Day's legs, and at times describing Mr McNamara "absolutely pummelling" Mr Day and possibly choking him.

72 Mr Dunn said that, a couple of days later, Mr McNamara went "absolutely berko" at him and "went [him] like a mad fuckin' man" after Mr Dunn asked him if he was having a homosexual rendezvous with Mr Day.

73 Mr Dunn said Mr McNamara had "stuff" that he (Mr Dunn) had given him. He also said that Mr McNamara told him he was going to "implicate me by fuckin' whatever".

74 Mr Dunn returned to the events after he visited Mr Gottschling, indicating Mr McNamara turned up at his home asking him what he should do and indicating that he might need to kill Mr Dunn. Mr Dunn claims he told Mr McNamara that this would be "double trouble" for him (Mr McNamara). Mr McNamara slept at his house that day, and Mr Dunn let him in a couple of times later. Mr Dunn said he went to Albury for two days "to get away from the fuckin' shit".

75 He repeated his claims about seeing Mr Day with his pants down inside Mr McNamara's unit, yelling out something like "that prick". He said Mr Day just glared at him, with a mug in his hand. He said this was the first time he had seen Mr Day "in bloody yonks".

76 Mr Dunn outlined the background and depth of his animosity towards Mr Day. Yet he also said that he had a lot of time for Mr Day, and that he thought he was a pretty good bloke, until Mr Day wrecked his mother's house and stole from him. He said that Mr Day had potential.

77 Mr Dunn denied any involvement in Mr Day's disappearance:

Not at all, no, none whatsoever, total witness. I didn't want him be involved, I would have been implicated as soon as I helped that dickhead that tried to stay, dispose of his body. I said, "no fuckin way known am I helping you do nothing like that." Even just for the memory of it, I don't want to get fuckin' involved.

78 He said he reckoned Mr Day might be buried in the side garden at Mr McNamara's unit, but claimed to have no idea. He said he thought Mr Day actually went in a big bin, but he did not know.

79 After a break in the interview, Mr Dunn was asked about the knife he disposed of. He said:

Well, when I left Darcy on me own, at my house ... he took some items and one was that knife, the only knife I've got in the house for cutting roasts and salami and stuff up with. I wanted it back. ... When he returned it he had all this blood over his face and that. I thought he'd bring back a knife that'd used - he used on to cut up fuckin' Day with so I chucked it down the river, down the creek I should say.

80 He said that on the same morning he returned from Mr Gottschling's house, Mr McNamara asked him how he could get rid of the body, whether he should hand himself in, and how he might chop up Mr Day to put his body in the big bin. However, Mr Dunn said he thought Mr McNamara placed Mr Day's body in the side garden because, a few days later, he visited in the dark, after being asked to come around to see if he could smell anything.

81 He described the knife that he disposed of, which he later replaced in his kitchen. He described where it was. He said he popped it in a plastic bag and that it sank in the water. He said he probably wiped it clean. He claimed to have hidden it because he thought it was planted evidence to implicate him in everything. He said that Mr McNamara placed it back in his drawer after taking it, without Mr Dunn knowing it had been returned.

82 Mr Dunn said Mr Day last had access to his house in early July, when he went to his joint to steal a TV.

83 When told Mr Gottschling had described him with blood on him when he attended his house on the night of the murder, Mr Dunn initially denied this and later claimed there was blood on him from scratching his head. He claimed Mr Gottschling was trying to stitch him up. He denied changing his shoes.

84 When asked about the cleaning products he had referred to, Mr Dunn said they were his - "the Spray and Wipe or whatever he took down there" - but Mr McNamara never returned them. He only returned the carving knife. He "took a few items, the squirty stuff ... Spray and Wipe and cleaning stuff ... [and] some gardening tools". Mr McNamara wanted a shovel, but Mr Dunn could not find him one that was appropriate. Mr Dunn got a mattock out for him, but Mr McNamara did not take either that or the plastic spare bucket. He said Mr McNamara told him he wanted the shovel to dispose of Mr Day's body.

85 On Friday 7 September 2018, while searching One Mile Creek at a billabong between the Vincent Street bridge and the Scout Hall, police found a knife about one metre from the bank. The knife had a wooden handle and a serrated edge. Nearby was a second knife, which was metal with a serrated blade and two sharp points at the end. This knife was consistent with the one described by Mr Dunn. A plastic shopping bag was found on the other side of the creek.

86 On Sunday 9 September 2018, Mr McNamara spoke to police. Amongst other things, he told them about items that had been disposed of connected with the cleaning up of the murder scene. Mr McNamara also referred to the carving knife with two prongs. He claimed Mr Dunn tried to provide him with the knife, but as a red herring, and did not think it was the knife used.

87 On Monday 10 September 2018, police found in One Mile Creek a black bag bearing a Batman logo. This had been seen on an earlier search, but not seized, because police did not realise it might be relevant to the investigation.

88 On Thursday 13 September 2018, police found in One Mile Creek two reusable shopping bags containing a Winnie the Pooh doona, a Bratz doona, a green blanket, a black jacket and a shopping receipt.

89 The items found in the creek were subjected to forensic testing. Possible blood was identified on the doonas, blanket and silver knife, but this could not be confirmed.

90 On behalf of the Director, Mr Dickie submitted that Mr Dunn's description of what happened with respect to Mr Day's murder is an unreliable version of events and ought to be rejected. He conceded that the Director is unable to identify precisely what happened or what Mr Dunn saw. However, Mr Dickie submitted that, being aware of the murder, Mr Dunn performed the acts outlined.

91 Mr Dunn's explanations for some of the acts he later undertook (as opposed to the admissions to performing the acts) are also challenged by the Director. For example, Mr Dickie submits that Mr Dunn's suggestion that the knife he disposed of was taken from his kitchen, and then planted on him by a bloodied Mr McNamara, defies credulity in light of the fact Mr Day's body was not dismembered, which Mr Dunn appears to have known.

92 With respect to this aspect, Mr Dickie concedes that Mr Dunn falls to be sentenced only for disposing of a knife connected to the murder or its aftermath. Mr Dickie also concedes that the Director is unable to say how this knife, or the knife found beside it, was used, if used at all, in the murder. He submitted that it is most likely that, appreciating how the fatal wound was inflicted, there was an awareness that discovery of sharp implements in their possession might link the two men to the murder, and hence the knives were dumped in the creek.

93 Ms Price, who appeared for Mr Dunn, conveyed her instructions regarding the commission of the offence.

94 On the day of the murder, Mr Dunn, Mr McNamara and Mr Day all consumed a large amount of alcohol, Mr Dunn using his payday money from Centrelink.

95 Mr Dunn saw Mr McNamara murder Mr Day when looking through the screen door.

96 Mr Dunn must have entered the flat at some stage, however, as he was later seen with blood on his person (by Mr Gottschling).

97 At this point, I pause to note that, while I took Mr Dickie's submission about the unreliability of Mr Dunn's account to include a rejection of his assertion that he was looking through the screen door when he saw Mr McNamara murder Mr Day instead of being inside the unit at that time, I do not think it is necessary to resolve that issue. This is because, as Ms Price concedes, Mr Dunn must have entered the flat at some stage, as he was seen with blood on him which must have come from Mr Day (notwithstanding that some of that blood may have come from his own scalp, which, I accept, he had a tendency to scratch). Thus, in my view, it makes no meaningful difference whether he witnessed the murder from inside the flat or from outside, at the front door.

98 Returning to Mr Dunn's instructions, at some point after the murder, he disposed of his shoes at the home of Mr Gottschling, lent Mr McNamara some cleaning products, showed him spades and shovels (although Mr McNamara ultimately did not take any gardening implements), loaned and then disposed of a knife and told people that Mr Day was in Melbourne or elsewhere.

99 I turn now to the victim impact statements, which form part of the materials to which I must have regard in sentencing.

100 A total of three such statements were filed by some of Mr Day's loved ones. The statements were made by Mr Day's mother Marilyn Chambers; his sister Cherrona Day; and his former partner Jade Griffiths, who is also the mother of his son. I read the statements carefully for the purposes of sentencing Mr McNamara, and I have done so again for the purposes of sentencing Mr Dunn.

101 Ms Chambers remembers her son as having a cheeky grin and as being good at making friends with the more vulnerable and marginalised children at school. He loved animals. Ms Chambers struggles with the tension that her son's difficulties with drugs and alcohol created between them, and feels she might have done more to help. Since his death, she finds herself crying a lot, being sad or angry all the time, and lacking in motivation. It pains her that she never got to say goodbye.

102 Ms Day tries to think of the good things she did with her brother. They loved playing video games together. Like their mother, Ms Day also struggles with guilt associated with the difficulty she had in dealing with her brother's particular afflictions. Since his death, she has had trouble sleeping, increased depression and reduced motivation.

103 Mr Day was Ms Griffiths' first love. She remembers his bubbly personality and cheeky smile, which their son has inherited. While his difficulties made it impossible to stay with him and raise a child together, she still loved him and despairs that their son has lost his father. Ms Griffiths suffers nightmares about Mr Day's last moments, has become depressed and feels as though a piece of her has died.

104 These and all other sentiments in the victim impact statements are eloquent descriptions of the grief and loss suffered by those close to Mr Day. They are profoundly moving documents.

105 In so far as it is permissible to do so, I have had regard to the contents of these statements in considering sentence.

106 There is, however, a difficulty in doing so, although it is not insurmountable. The difficulty arises because Mr Dunn is not being sentenced for the murder of Mr Day, nor even for any part in causing his death. Yet it is his death that must be the most saddening thing for his loved ones. Instead, Mr Dunn is to be sentenced for his behaviour in assisting Mr McNamara with the purpose of impeding his apprehension, prosecution, conviction or punishment. Doubtless, there still must be grief caused by the attempt to cover up the murder and the delay in the discovery of his death, for which Mr Dunn is at least partly responsible. Thus, while there are some mental gymnastics involved in separating and apportioning their grief to different aspects of the crimes of which Mr Day's loved ones are victims, I think that, in sentencing Mr Dunn, I must make some attempt to confine my assessment of the impact upon the victims to that which flows solely from his offence of assisting an offender. That is what I have done.

107 But I wish to add this. As I said when sentencing Mr McNamara, there is nothing this Court can say or do that will heal the grief and pain suffered by Mr Day's loved ones. The sentence I must impose is not a reflection of the worth of his life - as if anything so precious could ever be valued in any event. Rather, as intimated earlier, the sentence I am about to impose reflects many factors which I am required by law to consider and balance, only one of which is the impact on victims.

108 I turn now to the nature and gravity of the offence.

109 The offence of assisting an offender is committed where "the principal offender" has committed a serious indictable offence ("the principal offence") and the accused, knowing or believing the principal offender to be guilty of the principal offence, without lawful authority or reasonable excuse, does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender.

110 While it is a much less serious offence than murder, assisting an offender who has committed murder still can be a relatively serious offence. This is reflected in the legislature's choice of the maximum penalty for the offence, which is 20 years' imprisonment.[7] As Mr Dickie submitted, conduct of this kind has a tendency to undermine and frustrate the proper administration of justice with respect to the most serious crime, potentially enabling a murderer to avoid detection and punishment.

111 This instance of assisting an offender has some serious features, including the following:

(a) First, Mr Dunn assisted Mr McNamara after he had committed murder in brutal and grisly circumstances. That Mr Dunn had blood on his hands and his shoes (whether in spots or in greater volumes need not be determined), in context, convinces me that he must have been aware of the nature of the killing.

(b) Secondly, while Mr Dunn cannot be held responsible for the impact on Mr Day's loved ones as a result of his murder, the adverse impact upon those victims still must be heightened by the fact that, not only did his offending contribute to the substantial delay in the body being discovered, but also the thought that such delay as was occasioned occurred in circumstances where Mr Day had been brutally murdered.

(c) Thirdly, Mr Dunn engaged in multiple and varied acts of assistance.

(d) Fourthly, while most of those acts were committed immediately or shortly after the killing, the false stories extended for over a month afterwards.

(e) Fifthly, in addition to disposing of his own shoes and a knife connected to the murder, providing Mr McNamara with cleaning products and access to shovels for the purposes of cleaning up the murder scene and burying the body and telling lies about Mr Day's whereabouts in order to impede the detection and punishment of Mr McNamara, at least some of these latter acts also must have been performed in order to deflect attention from his own earlier illegal behaviour.

(f) Sixthly, while Mr Dunn was not directly involved in the burial of the body, at least some of his acts facilitated, or had the potential to facilitate, conduct involving "gross disrespect to the body of [Mr Day] and contributed to a period of [about six] weeks during which his family and friends were unaware of his fate".[8]

(g) Seventhly, Mr Dunn had many prior opportunities to report the matter to police, but chose not to do so.

(h) Finally, Mr Dunn's offence was committed in breach of a CCO originally imposed in 2017 and varied twice because of further offending.

112 Overall, I think that Mr Dunn's behaviour may properly be described as "seriously wrong".[9]

113 On the other hand, there are several factors limiting the gravity of this instance of the offence of assisting an offender, including the following:

(a) First, it is not alleged that Mr Dunn was directly involved in cleaning the unit or burying Mr Day's body. Acts of this type tend to be features of some of the more serious instances of assisting an offender who has murdered another.

(b) Secondly, while Mr Dunn provided cleaning products to Mr McNamara, it is not clear that those products were in fact used. Similarly, while Mr Dunn provided access to his spade and shovel, it seems that Mr McNamara did not in fact use those implements. Thus, aspects of Mr Dunn's assistance were not required to avoid detection or did not actually assist Mr McNamara in doing so.

(c) Thirdly, it was conceded by Mr Dickie that the Director cannot say that the knife disposed of by Mr Dunn was the murder weapon or that it was used, if used at all, in connection with the murder. (Nor can it be said that the second knife found near it was the murder weapon.) As I indicated earlier, Mr Dickie also submitted that Mr Dunn's claim - namely, that the knife was taken from his drawer and then planted by a bloodied Mr McNamara - defies credulity. Mr Dickie submitted that it is more likely that, appreciating how the fatal wound was inflicted, Mr Dunn was aware or believed that the discovery of sharp implements in either one's possession might link the men to the murder, and hence the knife was dumped in the creek. I am satisfied, beyond reasonable doubt, that that was at least part of Mr Dunn's motivation for disposing of the knife.

(d) Fourthly, perhaps like many who commit this type of offence, as Ms Price submitted, another part of Mr Dunn's motivation in doing so was to avoid the finger of suspicion unjustly being pointed at him for the murder or unlawful killing of Mr Day.

(e) Finally, as indicated earlier, it was Mr Dunn who, when arrested by local police for being drunk in Benalla, informed them that Mr McNamara had murdered Mr Day. Further, while still in a drunken state, in a subsequent covertly-recorded interview that the Director conceded should not be led at a trial, Mr Dunn told Benalla police that Mr Day was buried at Mr McNamara's unit.[10] As we have seen, he had told Mr Bodsworth the same thing the day before his arrest and he gave police information about the cleaning products, the shovels and the knife. Mr Day's body was found and exhumed the next day. Thus, Mr Dunn brought his own offending to an end by his disclosure. The same action also had a part in bringing Mr McNamara's concealment of his crime to an end as well.

114 While recognising the limitations in employing any sort of taxonomy of gravity of offending (whether speaking of objective gravity or of a more compendious notion of relative offence seriousness) and paying heed to the cautionary remarks made by the Court of Appeal on this topic in recent years,[11] I think that the following may be said about Mr Dunn's offence of assisting an offender. This case is far from among the worst examples of the offence that reasonably might be imagined or are seen by this Court. Equally, it is not at the lowest end of the scale either. Instead, in terms of objective gravity, I think it ranks somewhere within what I would regard as the very broad middle range of such offences encountered in practice. As we shall see a little later, serious though it is still, it is perhaps not quite as serious as some of the other cases that I would classify as falling within that same middle range of offending.

115 I turn now to Mr Dunn's background and personal circumstances in more detail. They were conveyed by Ms Price at the plea hearing. As will be seen, some aspects of these circumstances have greater or lesser relevance to sentencing.

116 Mr Dunn was born on 26 February 1959 in Malvern, Melbourne.

117 His father Barry Dunn was an engine driver for Victorian Railways and had worked on Puffing Billy. His mother Anne Dunn was engaged in home duties. He had two younger brothers, David (born in 1963) and Malcolm (born in 1973).

118 His family relocated to Yarrawonga in 1963 as his father obtained a position at the Yarrawonga train depot, operating the goods and passenger line between Benalla and Oaklands in New South Wales.

119 Mr Dunn was an average student. He completed Year 10 at Yarrawonga High School in 1974.

120 In 1975, the family moved to Goorambat, as his father was transferred to the Benalla train depot. At the same time, the family built a home in South Wangaratta, and later moved in (during 1977).

121 Mr Dunn's mother was diagnosed with bipolar disorder in 1974 when she was aged 36. When Mr Dunn was a child, his mother often would be unable to get out of bed, supervise the children or undertake housework or cooking. She would experience periods of mania, particularly around Christmas when she would obsessively decorate the house as early as September. Mrs Dunn saw a psychiatrist regularly in Wangaratta and was periodically hospitalised. This placed a strain on the marriage, with her husband working long shifts, then returning home to the house in disarray and the children running riot.

122 Mr Dunn recalls his parents were verbally abusive, and sometimes physically abusive, towards each other. Ultimately, they separated in 1993.

123 After finishing school, Mr Dunn moved out of home and worked at a furniture shop in Cobram for several years, moving furniture and installing carpet.

124 Mr Dunn shared his father's love of trains and aspired to become an engine driver. He commenced a traineeship with Victoria Railways in 1976 in Benalla. He was not successful in passing the requisite exam to become an engine driver, so instead became a wagon and carriage maintenance officer.

125 Mr Dunn was transferred to Melbourne in 1991. He remained with Victoria Railways until he and his father were made redundant in 1993.

126 Mr Dunn then linked with a job agency and undertook various work placements such as at Bruck textile factory and the RSPCA when he moved back to Wangaratta.

127 Mr Dunn has not worked since 1996, when be qualified for the Disability Support Pension as a result of his bipolar disorder (which was diagnosed at age 36).

128 At the time of his parents' separation, Mr Dunn lived in Ashburton (in Melbourne) and was unemployed because of his redundancy.

129 In 1993, Mr Dunn and his mother decided to buy the house at 1 Ryan Avenue together. Mr Dunn has fond memories of living with his mother, but there were also periods of difficulty. His mother still experienced periods of depression and mania, which often led Mr Dunn to take off and stay with friends. For example, she would have conversations with her sister as if she were physically present when she was not; or she would have all the taps running and all the stove burners on for no apparent reason.

130 In 2008, as a result of her mental health problems, Parkinson's Disease and encroaching dementia, Mrs Dunn moved into care at St John's Village in Wangaratta.

131 Mrs Dunn remains a joint owner of the Ryan Avenue home, her share being managed by the State Trustee.

132 Mr Dunn's father re-partnered and lives in the Castlemaine area. He attended the committal hearing to support his son, often sitting quietly in the upstairs gallery.

133 Mr Dunn's relationship with his father is complex, with Mr Dunn having difficulty forgiving his father for his behaviour towards his mother.

134 Mr Dunn visited his mother at St John's Village prior to his arrest. He has been unable to speak with her whilst in custody, as staff at the aged care facility have been unwilling to facilitate calls from prison. He is periodically updated on her welfare by head nursing staff.

135 Mr Dunn's brother David also became a train driver. He worked on the Melbourne metropolitan lines, until being diagnosed with Parkinson's Disease three years ago. He lives in Melbourne with his wife and children. To the knowledge of Mr Dunn, his brother David has never been in trouble with the police. Mr Dunn had irregular contact with David and his family prior to his incarceration.

136 Mr Dunn's other brother Malcolm lived in Northcote and did not work. He was an alcoholic and was diagnosed as being 'unipolar', also known as major depression. Sadly, Malcolm died in 2016 from causes related to his alcoholism. Mr Dunn did not have much contact with Malcolm as the two often argued. I shall say more about his death shortly.

137 Mr Dunn's mental health has been up and down since he was aged 21. He was diagnosed as having bipolar disorder at aged 36, coincidentally the same age when his mother was diagnosed with the same condition. During bouts of depression, he would self-isolate for long periods. When suffering mania, he would behave impulsively, often drinking alcohol to excess and getting in strife with the police.

138 Mr Dunn estimates that he has been admitted as a psychiatric inpatient five or six times, including at Kerferd Psychiatric Unit in Wangaratta.

139 Previously, he has been prescribed lithium and Epilim as mood stabilisers.

140 Ms Price tendered three discharge summaries from the Kerferd Unit in 1999 and 2000. The summaries show that Mr Dunn was placed on a community treatment order ("CTO") in 1999, which was revoked for a couple of weeks in May 2000. On each occasion, he was prescribed Sodium Valproate (and, to a lesser extent, also Chlorpromazine and Risperidone). His serum level of Sodium Valproate, at admission upon each of the first two of those stays, was well below therapeutic range and, on the third occasion, just below that range.

141 Ms Price's instructions are that Mr Dunn is currently not prescribed any medication for his bipolar disorder. Instead, while in custody, he has been receiving counselling with psychologists and Salvation Army workers, and has been doing courses. He presents as relatively stable. His only medication at the moment is to control blood pressure and cholesterol.

142 Since his arrest, Mr Dunn has been moved through Melbourne Assessment Prison ("MAP"), Metropolitan Remand Centre ("MRC"), Barwon Prison, Port Phillip Prison ("PPP"), back to MRC, MAP and is now at PPP again. For the majority of that time, Mr Dunn has been in "protection".

143 His experience in custody is more burdensome this year also as a result of the restrictions imposed during the COVID-19 pandemic. These restrictions have reduced opportunities to engage in education and rehabilitation. Mr Dunn has attended drug and alcohol rehabilitation courses and Alcoholics Anonymous ("AA") meetings, when COVID-19 restrictions and his protection status have enabled him to do so.

144 He has participated in the Unite Programme to assist with family relationships, Respectful Relationships and a five-part programme called Coping with Change, Loss, Anxiety & Sleep.

145 He has attended various educational courses, including in maths, English, computers, resume writing, Buddhist meditation and song writing, as well as a coronavirus cleaning course.

146 He has had various jobs including as a reception billet, a yard billet, cleaning the church or chapel and working in timber industries.

147 Mr Dunn has received treatment and medication for high blood pressure, high cholesterol and heart palpitations. He has been taken to St Vincent's Hospital for assessment, and during COVID-19 has met with a cardiologist via Zoom. Mr Dunn has seen psychologists and other support workers whilst in custody. He especially values speaking to various Salvation Army workers, as he admits he is quite lonely.

148 Ms Price explained that Mr Dunn's priority, when released, is to visit his mother at St John's Village to check on her welfare.

149 He will have to undertake significant repairs to the Ryan Avenue house, as squatters moved in after he was arrested and caused damage to the property. It was then boarded up by arrangement with the State Trustee.

150 Mr Dunn plans to remain in the Wangaratta area so long as his mother is alive and living at St John's Village. He has some friends remaining in Wangaratta, but understands that many people will not welcome his return. He plans to keep to himself, watch his tongue and be mindful of his behaviour.

151 He wishes to attend Salvation Army services in Benalla and the Open Door Neighbourhood House in Wangaratta as a means of creating positive social connections. He intends to go to AA meetings in Benalla, recognising he must not consume alcohol to excess. He also intends to re-engage with Disability Advocacy Information Service, who previously provided him with an outreach worker to assist him shop for groceries, go to the chemist and attend other appointments. He will speak to general practitioners at Gateway Health to obtain a mental health care plan to enable him to link with a local psychologist.

152 Mr Dunn admitted an extensive criminal history. He has numerous prior convictions for assault and other violent offences. Most of the assaults have resulted in non-custodial sentences. For others, he received short prison sentences. The more important aspects of his criminal history may be summarised in this way:

• From 1979 to 1989, he had six court appearances for offences including perjury, using threatening words in public, assault with a weapon, resisting police, unlawful assault and being armed with an offensive weapon, for which he received fines and then a community based order ("CBO").

• In 1993, he was fined for causing injury intentionally or recklessly and damaging property.

• Later in 1993, he received a wholly suspended sentence of 42 days' imprisonment for assault with a weapon.

• In 1998, he received a six-month CBO for assault by kicking, resisting police, damaging property and using indecent language.

• In 1999, he received a twelve-month CBO for stalking, assaulting police, theft and indecent language.

• In 2002, he received an eighteen-month CBO for possessing a firearm as a prohibited person, breaching an intervention order, assaulting and resisting police and assault by kicking.

• Later in 2002, having committed new offences of assaulting and hindering police, assault and damaging property, and having breached the previous CBO, he was sentenced to three months' imprisonment with two months suspended.

• In early-2003, he was sentenced to four months' imprisonment with three months suspended for breaching an intervention order and setting a dog onto another.

• In mid-2003, he was sentenced to 28 days' imprisonment for assault and damaging property.

• In 2005, he received a suspended sentence of two months' imprisonment for breaching an intervention order plus a total of three months' imprisonment for stalking and the restoration of a previous suspended sentence.

• Later in 2005, he received a suspended sentence of one month's imprisonment for recklessly causing injury and driving offences.

• In 2007, he was sentenced to 180 days' imprisonment, with 100 days suspended, for assault, damaging property, resisting police and breaching an intervention order.

• In 2017, he was sentenced to 14 days' imprisonment and was placed on a CCO for 12 months for breaching an intervention order, shoplifting and being drunk.

• Later in 2017, he was sentenced to 56 days' imprisonment for breaching an intervention order, shoplifting, using threatening words, recklessly causing injury, assault, threatening serious injury and using a telephone to harass another.

• Later still in 2017, he was sentenced to four months' imprisonment and a CCO for 12 months for breaching an intervention order, damaging property, threatening an emergency worker, breaching bail, recklessly causing injury and using a telephone to harass another, as well as resentencing for breaching an earlier CCO.

• In 2018, he was sentenced to 54 days' imprisonment for threatening to kill, breaching an intervention order, throwing a missile to injure and behaving in an offensive manner, and a CCO imposed previously was varied upon its breach.

• Finally, on 18 July 2018, he was sentenced to ten days' imprisonment (time served) for assaults, aggravated assault, riotous behaviour, threatening and insulting words, breaching an intervention order and possessing a dangerous article.

153 While Mr Dunn's criminal history is troubling, and indeed suggests that specific deterrence and community protection should carry weight in sentencing, none of his prior offences is nearly as serious as the present offending.

154 It is noticeable that there was a substantial break in Mr Dunn's criminal history between 2008 and 2017. It seems that he had been doing relatively well during that period. Ms Price explained, however, that the death of his brother Malcolm in 2016 triggered an increase in Mr Dunn's drinking and a deterioration in his mental health. While Mr Dunn was told that his brother's death resulted from complications arising from alcohol abuse, he became suspicious that the true circumstances may have been withheld from him by his father. In any event, as Mr Dunn's drinking escalated and his mental health deteriorated, he fell back into bad habits. By the time of the offending in this case, he was at a low ebb.

155 I turn now to the mitigating factors urged by Ms Price.

156 First, while Mr Dunn denied some of the actions that formed the particulars of the charge to which he has pleaded guilty, it was he who told the police that Mr McNamara had murdered Mr Day and admitted both to police and others his presence at the time of the murder. He also made partial admissions concerning his knowledge of the murder, his attendance at Mr Gottschling's home (including that he had blood on him), his disposal of the knife, his provision of the cleaning products and his making the shovels available to Mr McNamara.

157 Thus, while he denied or lied about some things (such as at least part of the source of the blood on him), he ultimately made several important admissions that assisted the police in finding Mr Day's body and in making a case against himself. As I indicated earlier, those admissions also brought Mr McNamara's concealment of the body to an end. Further, they were a catalyst for Mr McNamara's arrest.

158 It follows, in my view, that Mr Dunn's admissions amount to an important mitigating consideration.

159 The second matter in mitigation - and, by far, the most important consideration - is Mr Dunn's plea of guilty.

160 On 23 June 2020, which was the same day I handed down my rulings on various pre-trial issues, Mr Dunn offered to plead guilty to the charge of assisting an offender, albeit an offender who had committed manslaughter. The Director took time carefully to consider the offer, and ultimately suggested that an offer to plead guilty to assisting an offender who had committed murder would be considered. When that offer was made (soon afterwards), the Director accepted it.

161 In Ms Price's submission, the guilty plea should be regarded as having been made at the earliest practical opportunity. After all, it was offered soon after the admissibility of the prosecution's evidence became known and as soon as the Director indicated what would be required to settle the matter. Ms Price also emphasised that the plea has spared a large number of witnesses the stress of giving evidence, and has saved the community the time and expense of a trial. In her submission, these are significant considerations, especially given the backlog of cases caused by COVID-19.

162 Mr Dickie accepted that the plea of guilty was offered and entered as soon as the Director was willing to accept that plea. He also accepted that Mr Dunn is entitled to "a substantial discount for the utilitarian and other aspects that flow from a plea of guilty".

163 While the plea was not offered or entered at the earliest opportunity after his arrest, it must be remembered that Mr Dunn was facing a murder charge until only very recently. As Ms Price pointed out, as soon as the scope of the admissible evidence against him was known, he offered to plead guilty to assisting an offender, albeit to the less serious version of that offence initially. Then, immediately upon the murder charge being withdrawn and the alternative offence of assisting an offender in its current form was charged instead, he pleaded guilty to that offence.

164 While his counsel cross-examined some witnesses at the committal hearing in the Magistrates' Court, and some pre-trial issues were litigated in this Court as well, three important matters must be noted. First, Mr Dunn was facing a murder charge at the committal. Secondly, in this Court, there were still some preliminary matters to be heard, including the pre-recording of vulnerable witnesses, which would have taken a significant amount of time. Thirdly, again, Mr Dunn was still facing a murder charge in this Court until the Director suggested that he might offer to plead guilty to the current offence.

165 A trial would have been longish and difficult for all concerned, especially the vulnerable witnesses. The plea of guilty has spared those and other witnesses the trauma of giving evidence or further evidence and has saved considerable resources. It is, therefore, a plea of substantial utilitarian value. As other judges of this Court have observed recently, this utilitarian benefit is increased at the present time given the backlog of trials in the wake of the COVID-19 pandemic.[12]

166 In Mr Dunn's case, I also accept that his plea of guilty indicates a willingness to facilitate the course of justice. While it is no doubt far preferable to Mr Dunn to be pleading guilty to this charge than it would be to be facing a murder trial, a plea of guilty to an offence of this nature is still a significant step.

167 Accordingly, Mr Dunn's plea of guilty is entitled to substantial weight in mitigation.

168 This leads to the third matter in mitigation, which concerns remorse. Ms Price submitted that I should find remorse, for several reasons (which I shall come to shortly). Mr Dickie submitted that I should be cautious in making such a finding, especially in view of the evidence of some of the callous remarks Mr Dunn made about Mr Day after his death.

169 While I am not satisfied that Mr Dunn is utterly remorseful, I think that he has an appreciation of the gravity and impact of his crime and that he has shown a substantial degree of remorse. The evidence that brings me to those conclusions comes from the following sources.

170 First, while it is plain that he was rotten drunk at the time, as Ms Price submitted, Mr Dunn's decision to confess his belief to Benalla police that Mr McNamara had murdered Mr Day, and as to where he was buried, is suggestive of a need to impart this information because it was on his conscience.

171 Secondly, despite the evidence of animosity between them, Mr Dunn spoke of Mr Day having "promise", which also suggests regret that he has died.

172 Thirdly, while his plea of guilty accepts that he committed the various acts alleged against him with the purpose of impeding the apprehension (and so on) of Mr McNamara, while Mr Dunn did not come forward in this way until about six weeks after Mr Day's murder, and while he could have come forward immediately or at least much earlier, it is also plain, as I have indicated elsewhere, that Mr Dunn was concerned about the finger of suspicion being pointed at him. I think a person can still be remorseful for what he has done and yet, in part, be acting out of self-preservation.

173 Fourthly, Mr Dunn pleaded guilty to assisting an offender as soon as that offence was charged. Many others in his position might have chanced their arm and run a trial. This, in my view, also tends to suggest a degree of remorse.

174 Finally, however, despite the foregoing, having listened to his interviews, while I accept that he is remorseful, I do not get the sense that Mr Dunn has the same deep level of remorse for his offending that I found Mr McNamara had for his crime. Of course, Mr McNamara had a good deal more to be remorseful for, since he had pleaded guilty to murder. But I did not detect in Mr Dunn the deeper appreciation of the harm done or that he done something profoundly wrong. Further, there were other remarks that Mr Dunn made that tend to take the shine off the other factors that might otherwise have satisfied me that he is utterly remorseful. Such comments included his remark to Ms Hart in mid-August 2018: "It's a blessing that he's no longer around. It couldn't have happened to a better fella".

175 But, overall, for the foregoing reasons, I am satisfied that Mr Dunn has a substantial level of remorse for his crime.

176 Remorse - even if not at the highest levels - is an important factor in mitigation because, like many mitigating factors (such as a plea of guilty), it tends to impact on findings regarding, or the weight to be accorded to, other factors in mitigation. As will be seen, it has had that effect in the present case.

177 The fourth matter in mitigation concerns Mr Dunn's prospects of rehabilitation. Mr Dickie submitted that any assessment of those prospects should be somewhat guarded, especially given Mr Dunn's prior criminal history and the nature of the offending. I did not understand Ms Price to make a specific submission on Mr Dunn's prospects of rehabilitation, but she did emphasise his rehabilitative efforts in custody and his plans for the future.

178 In my view, Mr Dunn's extensive criminal history for crimes of violence, his struggles with mental ill-health, his long history of drug and especially alcohol abuse, and the very nature of the offence to which he has pleaded guilty, all suggest cause for a rather guarded view of those prospects.

179 On the other hand, his admissions, plea of guilty and remorse all point towards better prospects of rehabilitation. Further, that there was a nine-year hiatus in his criminal history from 2008 to 2017 suggests that Mr Dunn can live offence-free. It is also positive that, when the COVID-19 restrictions in prison have allowed, Mr Dunn has attended drug and alcohol rehabilitation courses, AA meetings and counselling sessions with psychologists and Salvation Army workers, and has worked in various positions.

180 When the foregoing matters are balanced, while I am still guarded about Mr Dunn's prospects of rehabilitation, I am satisfied that they are at least reasonable.

181 In my view, it will be important for his further rehabilitation that, upon his release, Mr Dunn is provided with the supervision and supports that usually come with either a CCO or when released on parole. Among those measures must be programmes or the like directed at his mental health as well as reducing his alcohol intake. I shall return to this issue shortly.

182 Finally, I am satisfied that the hardship of imprisonment for Mr Dunn has been, and will continue to be, greater than usual for as long as the COVID-19 pandemic and its impact on prison conditions last.

183 From March this year, personal visits were suspended in Victoria's prisons, as were educational programmes and many recreational activities. Prisoners are now kept locked down in their cells for far longer periods than is usual. Further, there is the ever-present feeling of vulnerability to contracting the virus in an environment over which the prisoner has no control.

184 Just how long the virus will remain a threat, or how long these restrictions will remain in prisons, is unknown. I think it is safe, however, to proceed on a timeline of the foreseeable future, as uncertain as that might be.

186 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

187 In my view, general deterrence, just punishment and denunciation are important considerations in this case of assisting an offender. It has been said that offending of this nature must be discouraged and denounced in the strongest of terms.[13] I agree. The community should understand that behaviour of the type engaged in by Mr Dunn is denounced by the courts and usually will result in a term of imprisonment that reflects not only a callous lack of decency and dignity for the deceased and his loved ones but also the fact that interference with the timely and proper administration of justice has occurred in the context of a murder, no less.

Specific deterrence and protection of the community

188 I am also satisfied that there is a need for weight to be accorded to specific deterrence and protection of the community, especially given Mr Dunn's long history of violent offending. On the other hand, that need is moderated to some extent by the fact that Mr Dunn made admissions, pleaded guilty, is remorseful and has reasonable prospects for rehabilitation.

189 While I have assessed Mr Dunn's prospects of rehabilitation as being reasonable - rather than, say, good, very good or excellent - I am satisfied that rehabilitation remains an important purpose in fixing sentence. There are at least two reasons.

190 First, that Mr Dunn's prospects of rehabilitation are reasonable makes rehabilitation a sentencing purpose that must be afforded significant weight.

191 Secondly, and despite my remarks about the need to give weight to the protection of the community, I think it is important to recognise the interplay between rehabilitation and protection of the community in any event. Mr Dunn has spent over two years in custody since his arrest. He is now aged 61. It is in the community's interests that such prospects of rehabilitation as he has be maximised so that, upon his release, his risk of reoffending is kept as low as it reasonably can be and his chances of successful reintegration into the community are also as strong as they can be.

192 Section 5(3) of the Sentencing Act provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed".

193 Section 5(4) provides that "a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender".

194 And s 5(4C) provides that "a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a [CCO] to which one or more [certain] conditions ... are attached".

195 These provisions reflect the common law principle of parsimony. I have applied these provisions and this principle when considering the appropriate sentence in this case.

196 In so far as I can determine them, I am to have regard to current sentencing practices for assisting an offender who has committed murder.

197 Unfortunately, there are no Sentencing Snapshots published by the Sentencing Advisory Council ("SAC") for this offence.

198 The SAC has, however, published some sentencing data for offences of assisting an offender in this Court and the County Court. That data shows that, for the period from July 2013 to June 2018, 50 percent of cases attracted imprisonment and, of those cases, 56 percent attracted sentences of up to one year in length, 20 percent were up to two years, 16 percent were up to three years and four percent were up to five years.[14] One difficulty with these statistics is that they do not distinguish between those cases in which the principal offence was murder and those in which it was some other offence.

199 My own survey of many individual cases of assisting an offender (where the principal offence is murder) over the last couple of decades is that sentences for this offence have varied markedly.[15] Despite the relatively high maximum penalty, I have not seen any cases that attracted sentences in "double figures" or anything even close to that threshold. The longest sentence was seven years' imprisonment with a non-parole period of five years,[16] whereas the next longest was six years' imprisonment with a non-parole period of four years.[17] Those sentences were imposed in 2000 and 1999 respectively.

200 Several quite serious cases involved the additional powerful mitigating factor of assisting the authorities by undertaking to give evidence against co-accused, which results in a very considerable reduction in sentence.[18] That factor is absent here.

201 Sometimes, more specific individual case comparisons can be a useful tool in gauging current sentencing practices as well. While such comparisons are often fraught, and while none of the cases I have considered impressed me as being especially like the present case, three sentences struck me as being closer comparators to the present case than the others. They were those imposed by Cavanough J in DPP v Richardson[19] in 2007, by Jane Dixon J in DPP v Luke Marmo[20] in 2018 and by Taylor J in R v Harvey[21] this year.

202 In Richardson, the deceased (who was aged 36) was killed as a result of heavy blows to the side of his head and to his jaw, consistent with being struck with a heavy blunt object. His left ear had been severed either before or after death. By her plea of guilty, Lisa Richardson admitted that her boyfriend Benjamin Smith murdered the deceased in their flat in South Yarra on 17 September 2005. Following the murder, Ms Richardson travelled by train with Mr Smith to Ballarat to collect a car for the purposes of disposing of the body. They drove the car back to Melbourne and stayed overnight in the flat of Robert Saunders. The next morning, all three returned to the South Yarra flat and placed the deceased's body in the boot of the borrowed car. Again, after staying overnight in Mr Saunders' flat, the three travelled in the car to Little River and buried the body (and a suitcase containing the deceased's belongings) in a shallow grave in the You Yangs. A few days later, Ms Richardson and Mr Smith hired a heavy-duty carpet cleaning machine. Police later found that the carpet in the lounge room had been pulled up and discarded. It was never recovered.

203 Ms Richardson, who was aged 31 at sentence, had a significant drug problem at the time of the offending, was somewhat vulnerable to and dependent upon Mr Smith, was not aware why he committed the senseless murder and felt some obligation to assist him because he had assisted her in the past. She pleaded guilty (albeit not early), had a degree of remorse, had no prior convictions for violence and had lived a rather tragic life after leaving home as a teenager but had made progress in custody in tackling her personal problems.

204 Justice Cavanough imposed a sentence of three years' imprisonment with a non-parole period of 20 months (which meant that Ms Richardson would be eligible for release on parole shortly after sentence was imposed).

205 In Marmo, the deceased was savagely assaulted over two hours and thereby murdered by Luke Marmo's friend and his cousin. Mr Marmo assisted the killers after the fact by complying with a request to take a jerry can of petrol to the murder scene. Once there, he placed the jerry can into a vehicle containing the deceased's body. The petrol was used to incinerate the body. He also helped eliminate forensic evidence by helping to sand the floors clean of blood where the murder was committed.

206 Mr Marmo was aged 24 at the time of the offending, acted out of a misguided sense of loyalty to the killers, had some prior convictions (including for armed robbery, which resulted in a sentence in a youth detention centre), had a history of drug and alcohol abuse, pleaded guilty, was remorseful, had a reasonable work record, and had some prospects of rehabilitation.

207 Justice Jane Dixon imposed a sentence of four years' imprisonment with a non-parole period of two years.

208 In Harvey, Alec Harvey participated with three other men in the false imprisonment and assault of the deceased in his own home. The men believed the deceased had committed sexual offences against young females. While Mr Harvey left before the deceased was tortured and executed, three months later, in full knowledge that five others were involved in that gruesome murder, he either destroyed or hid the murder weapon - namely, a 0.410 calibre shotgun - which was never found.

209 Mr Harvey was aged 24 at the time of the offending, had a very modest criminal history, had a history of drug and alcohol abuse, pleaded guilty, was remorseful, had a very strong work record, and had some prospects of rehabilitation. The judge also accepted that his post-traumatic stress disorder reduced his moral culpability and that he would find prison harder because of his chronic depressive illness, which was likely to worsen in prison.

210 Justice Taylor imposed a sentence of four-and-a-half years' imprisonment for assisting an offender. There was no relevant non-parole period because this sentence formed part of a longer total effective sentence for the other offences of false imprisonment and intentionally causing injury.

211 In my view, Mr Dunn's offence may be regarded as less objectively serious than those committed in the three cases just discussed. Those offences involved either assisting in the disposal or burial of the deceased and cleaning up the crime scene or disposal of the murder weapon. Thus, their assistance was more direct, material and grave than were the acts of Mr Dunn. On the other hand, Mr Marmo and Mr Harvey were relatively young offenders and had better work histories in recent times, and all three offenders had lesser criminal histories and more promising prospects of rehabilitation than Mr Dunn. Mr Harvey also had some weighty Verdins considerations in his favour.[22] Importantly, as in Mr Dunn's case, the other three offenders did not have the powerful mitigatory benefit of undertaking to assist the authorities in the prosecution of co-accused.

212 The foregoing discussion notwithstanding, it must be recognised that, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. As I said a little earlier, none of the cases I considered impressed me as being especially like the present case. And, in any event, sentences are not precedents to be applied or distinguished.

213 Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for assisting an offender who has committed murder, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

214 In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of assisting an offender who has committed murder.

215 I turn now to counsel's submissions on sentence.

216 Ms Price submitted that Mr Dunn should be sentenced to a term of imprisonment that does not exceed the period he has already spent in custody. In other words, in her submission, "time served" is enough. In fact, Ms Price went further, and submitted that the period Mr Dunn has spent on remand (over two years) exceeds the term of imprisonment that should be imposed. In the alternative, it was submitted that I should impose a prison sentence combined with a CCO that effects Mr Dunn's immediate release upon a CCO (a so-called "combination sentence"). Finally, in the further alternative, Ms Price submitted that, if I considered that the prison sentence must exceed the time Mr Dunn has already served in custody by any substantial amount, I should fix a non-parole period that allows for his immediate release.

217 As I understood him, while Mr Dickie did not accept that a sentence of "time served" (or less) would be appropriate, he conceded that it would be open to impose either a combination sentence that effected Mr Dunn's immediate release on a CCO or a head sentence with a non-parole period that would allow for his immediate release on parole.

Availability of a combined prison sentence and CCO in the present case

218 In separate oral submissions and in their joint written submission, both Mr Dickie and Ms Price contended that it is open in law to impose a combination sentence in this case. I also understood this submission to be thought to hold true notwithstanding that Mr Dunn has spent more than two years in custody and that, since there was no good reason to fail to declare any of that period as pre-sentence detention under s 18 of the Sentencing Act, I would be considering the prison component of the combination sentence to be over two years' imprisonment.

219 For reasons which I shall not detail here but (because of their length and complexity) will set out in an appendix to these reasons, I am satisfied that I am authorised in law, pursuant to s 44 of the Sentencing Act, to combine a sentence of imprisonment for over two years with a CCO. Moreover, I am of the view that a non-parole period must not and should not be fixed in respect of that prison sentence.

220 As will be seen, at least part of the question in this case then becomes whether, in the exercise of the sentencing discretion, I am satisfied that I should impose such a sentence instead of a sentence with a non-parole period.

221 Following the plea hearing and receipt of the parties' joint submission, I ordered that a pre-sentence report be prepared as to Mr Dunn's suitability for a combination sentence.[23] I have now received a brief report.

222 The officer at Community Corrections who authored the report was provided with the indictment; Mr Dunn's prior criminal history; the prosecution opening; the prosecution submissions; the defence submissions; the Kerferd Psychiatric Unit discharge summaries; and transcript of the plea hearing. I understand that Mr Dunn was interviewed over a video-call to the prison and that the officer also spoke with his previous case manager at Community Corrections.

223 The officer noted that Mr Dunn has had twelve community-based dispositions, including a current CCO, which will be contravened upon conviction for the current offending. Between 1989 and 2008, Mr Dunn completed six of nine attempts at such orders. The existing CCO commenced in 2017 and has been varied twice following contravention by further offending. As we have seen, between 2008 and 2017, Mr Dunn has no criminal history. Consistently with the submission made by Ms Price at the initial plea, Mr Dunn told the officer that his return to the attention of the authorities is related to the death of his brother in 2016 and alcohol abuse.

224 While the report records remarks by Mr Dunn which are arguably inconsistent with aspects of his plea of guilty, he assessed him to be remorseful.

225 The officer also observed that Community Correctional Services has assessed Mr Dunn's general risk of re-offending as high according to the Level of Service Risk Assessment Tool.

226 Nevertheless, Mr Dunn was found to be suitable for a CCO. It was also recommended that the order include conditions for supervision; treatment and rehabilitation; non-association with Mr Day's family; and a curfew.

227 The report indicates that I was considering a CCO of less than twelve months' duration and that Mr Dunn consents to a CCO and the recommended conditions.

228 This morning, I heard further submissions on the appropriate terms and conditions were I to accede to the submission that a combination sentence be imposed.

229 When I indicated that I was considering a combined order with a CCO component of eighteen months' duration, Ms Wilson, who appeared for Mr Dunn this morning, made it clear that Mr Dunn would consent to such an order and with the conditions that have been recommended.

231 Mr Dickie confirmed his position that such a proposed sentence was open both in law and as a matter of discretion. He cautioned, however, against imposing a CCO period that was not proportionate to Mr Dunn's crime and that was, in effect, preventative of crimes he has not committed or that he may commit in the future. I accept that submission. As will be seen, I have endeavoured to fix a proportionate sentence with parsimony squarely in mind.

232 Finally, Mr Dickie, helpfully, also made submissions on the types of condition that might be added to the order.

234 At the outset, I should say that I do not accept the submission that the imposition of a total prison sentence of less than or equivalent to the time Mr Dunn has already served in custody, by itself, would be sufficient to achieve all of the necessary purposes for which sentence must be imposed in this case.

235 I should add that, at least initially, I considered that the imposition of a head sentence of imprisonment longer than, with a non-parole period shorter than, the time Mr Dunn has already served in custody would be the necessary and most appropriate sentence.

236 As I remarked at the plea hearing, however, and again this morning, one concern I had was that, in fixing such a sentence, there would be no guarantee that Mr Dunn would be released on parole immediately or at any time before his head sentence expired. Instead, he may well be required to serve most or the entirety of his sentence without parole, and then be released back into the community with either only a very brief period of supervision and support or none. Indeed, sentencing principle compels a judge to assume that a prisoner may have to serve every day of his or her head prison sentence[24] and to accept that, when such a sentence is imposed, it is a matter for the Adult Parole Board ("the Board"), and not the court, as to whether and, if so, when the prisoner is released on parole.

237 That Mr Dunn may be required to serve every day (or at least a significant proportion) of any sentence I imposed beyond the non-parole period seems to me to be all the more likely when regard is had to the detailed and time-consuming processes which must be undertaken before a parole order may be made in a case like his. This is because those sentenced for the offence of assisting an offender (when related to murder) may be granted parole ultimately only by the Serious Violent Offender or Sexual Offender Parole Division ("the SVOSO Division") of the Board and even then only after another division of the Board has first recommended that parole be granted and the SVOSO Division has considered that recommendation.[25] Further, in such cases, the Board must not make a parole order unless it is satisfied that the prisoner has co-operated satisfactorily in the investigation of the offence to identify the location, or the last known location, of the body or remains of the deceased and the place where the body or remains of the deceased may be found.[26] Further still, for the purposes of making such a decision, the Board must have regard to numerous documents, including reports by the Chief Commissioner of Police and the Secretary to the Department of Justice and Community Safety, the record of this Court (including the reasons for sentence) and any submission to the Board by a victim under the relevant provisions.[27]

238 There are some cases in which the sentencing choice available to a court is finely balanced between, on the one hand, imposing a head sentence with a proposed non-parole period that has been or is about to be completed and, on the other, fixing a prison sentence that likewise has been or is about to be served but then is combined with a CCO (i.e. a combination sentence). This is one of those cases.

239 For the reasons I have given, if the former type of sentence were imposed, there is likely to be a substantial delay before the required decisions are made by the Board and the SVOSO Division.[28] If so, Mr Dunn would be held in custody beyond the time that I think is necessary and appropriate instead of being released and engaging in supervisory and rehabilitative activities forthwith or nearly so. Further, I think that such a sentence is less likely to be of benefit to either him or the community in the longer run.

240 Even if I am wrong in my estimation of the likely delay in a decision by the Board, or even if to consider such a matter is to have regard, erroneously, to "[a] possibility or likelihood that the length of time actually spent in custody by [Mr Dunn] will be affected by executive action",[29] I must still assume that he may have to serve most or every day of that sentence in prison without parole. Again, I think that such a sentence would be to detain Mr Dunn in custody longer than is appropriate and would be less likely to be of benefit to either him or the community in the longer run.

241 True enough, the community necessarily would be protected from any risk Mr Dunn might present for the period he remained in custody beyond the non-parole period. But, given his history of alcohol abuse, poor mental health and criminal offending, if Mr Dunn were released well after the expiry of his non-parole period or after his head sentence expired, and therefore with only a short or no period of supervision and support in the community, I think that such protection is likely to be only short-lived. I do not think it is appropriate to forsake the community's interest in longer-term reform and protection in the name of a longer period in prison that may be only a chimera in these respects.

242 Instead, I am persuaded that the preferable course is to ensure, so far as is reasonably possible, that Mr Dunn is released within a matter of days but with adequate supervision and support for a substantial, yet proportionate, period when in the community. In that way, I think that there is a better chance that Mr Dunn will reform in the longer run, which in turn should redound to the benefit of the community.

243 I am satisfied that those aims are best achieved by imposing upon Mr Dunn a combination sentence of two years and two months' imprisonment and a CCO of 18 months' duration with the supervisory and rehabilitative conditions recommended. Indeed, I think that both the core CCO conditions, coupled with the additional recommended conditions, will give Mr Dunn the best chance of reforming and reintegrating into the community. In my view, such a combination sentence meets the applicable sentencing purposes in s 5(1) of the Sentencing Act, adequately reflects the gravity of the offending and the factors in mitigation, and also pays due regard to current sentencing practices, in so far as they can be determined.

245 Balancing all matters as best I can, for the offence of assisting an offender, pursuant to s 44 of the Sentencing Act, Mr Dunn is convicted and sentenced to a prison sentence combined with a CCO.

246 The prison sentence is of two years and two months' duration. Pursuant to s 18 of the Sentencing Act, I declare that, including today, 784 days of pre-sentence sentence detention be reckoned as served under this sentence.

247 It is intended and understood that, since he was arrested on 4 September 2018, Mr Dunn will be eligible for release from that prison sentence on 4 November 2020 (which is the Wednesday of next week, immediately after the Melbourne Cup). Thus, he has about nine days more to serve in custody, including today.[30]

248 Further, in addition to that term of imprisonment, Mr Dunn is placed on a CCO for 18 months, commencing upon the day of his release from prison, which, as I say, should be 4 November 2020.

249 The CCO component includes each of the core conditions listed in paragraphs (a) to (f) of s 45(1) of the Sentencing Act. Those core conditions are that Mr Dunn:

(a) must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b) must comply with any obligation or requirement prescribed by the regulations;

(c) must report to, and receive visits from the Secretary to the Department of Justice and Community Safety ("the Secretary") during the period of the order;

(d) must report to the community corrections centre specified in the order (namely, Wangaratta Community Correctional Services, 119-121 Murphy Street, Wangaratta) within two clear working after the order coming into force;

(e) must notify the Secretary of any change of address or employment within two clear working days after the change;

(f) must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and

(g) must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that Mr Dunn complies with the order.

250 The CCO also includes the following additional conditions:

(a) treatment and rehabilitation (s 48D) - in particular:

(i) assessment and treatment for alcohol abuse or dependency;

(ii) assessment and treatment for drug abuse or dependency;

(iii) mental health assessment and treatment, including for bipolar disorder; and

(b) supervision (s 48E) - in particular, Mr Dunn is to be supervised, monitored and managed as directed by the Secretary;

(c) non-association (s 48F) - in particular, Mr Dunn must not knowingly contact members of Mr Day's family (namely, his mother, his sister, his former partner or his child); and

(d) a curfew (s 48I) - in particular, for a period of nine months (i.e. from 4 November 2020 to 3 August 2021),[31] Mr Dunn is not, without reasonable excuse, to be absent from his home address of 1 Ryan Avenue in Wangaratta between the hours of 10:00 p.m. and 6:00 a.m. (reasonable excuses would include, for example, medical or mental health treatment, employment, pastoral care of his mother, emergency housing while his home is being repaired).

251 Mr Dunn, do you consent to such an order? (Mr Dunn indicated his consent.)

252 Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Dunn pleaded not guilty to assisting an offender but been found guilty of that offence following a trial, I would have imposed a sentence in the order of four-and-a-half years' imprisonment with a non-parole period of three years and three months.

Combined prison sentence and CCO where former exceeds two years

1 Instead of cluttering the foregoing principal reasons for sentence with my construction of the relevant provisions concerning combination sentences, I thought it better to set out my reasons for that construction in this appendix.

2 As indicated in the principal reasons, the two issues that might be thought to be controversial in the imposition of the combination sentence in Mr Dunn's case are these. First, I am satisfied that I am authorised in law, pursuant to s 44 of the Sentencing Act, to combine a sentence of imprisonment of two years and two months with a CCO, notwithstanding the use of the words "one year or less" in s 44(1). That conclusion stems from the construction of s 44(1) in Boulton v The Queen,[32] the correctness and applicability of which, in my view, have not altered with the amendments to that provision and other related provisions over time.

3 Secondly, I am of the view that a non-parole period must not be fixed in respect of the prison component of that combination sentence. There are perhaps conflicting authorities on this point; and construction of the relevant provisions, especially in their current form, is not without difficulty. But, in the end, for reasons I shall endeavour to explain, I think the better view is the one that I have adopted.

4 Since the introduction of CCOs, there appears to have been a deal of confusion as to the circumstances in which a CCO may be combined with a prison sentence. I suspect part of that confusion has stemmed from the ways in which some of the provisions have been drafted. I think another reason for uncertainty arises from the fact that the relevant statutory provisions have been amended more than once.

5 Section 44 of the Sentencing Act, which is the principal provision, presently provides as follows:[33]

44 Imprisonment and community correction order

(1) Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.

(1A) Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence to which clause 5 of Schedule 1 applies, a court may make a community correction order in addition to imposing any sentence of imprisonment.

(1B) In sentencing an offender in accordance with subsection (1) or (1A) in respect of 2 or more offences, the Magistrates' Court must not impose a sentence that exceeds in the whole 5 years.

(3) If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment.

(4) A reference in this section to a sentence of imprisonment does not include a sentence that has been suspended.

6 The other key provision, at least for present purposes, is s 11, which concerns the fixing of non-parole periods. Section 11, presently, is in these terms:[34]

11 Fixing of non-parole period by sentencing court

(1) If a court sentences an offender to be imprisoned in respect of an offence for -

(a) the term of his or her natural life; or

(b) a term of 2 years or more -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

(2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.

(2A) However, a court must not fix under subsection (2) a non-parole period as part of a sentence of imprisonment if the court, in accordance with section 44, makes a community correction order in respect of the offender in addition to imposing the sentence of imprisonment.

(3) A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.

(4) If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.

7 When the CCO regime commenced, s 44(1) was in these terms:[35]

Subject to subsection (2), a court may make a community correction order in respect of the offender in addition to sentencing the offender to a term of imprisonment of not more than 3 months, if the sentence of imprisonment is not suspended in whole or in part.

8 In 2012, s 44(1) was substituted in the following terms:[36]

When sentencing an offender in respect of one, or more than one, offence, a court may make a community correction order in addition to imposing a sentence of imprisonment only if -

(a) any sentence of imprisonment imposed on that occasion in relation to any offence is not suspended; and

(b) the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 3 months or less.

9 In 2014, s 44(1) was substituted again, this time with the following provision:[37]

When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.

10 In Boulton, when speaking of the 2012 and 2014 versions of s 44(1), in a joint judgment, a five-member bench of the Court of Appeal said this of combination sentences and the applicable provisions:[38]

[136] When the CCO provisions were first enacted, the sentencing court was empowered to make a CCO in addition to imposing a sentence of imprisonment, provided that the term of imprisonment did not exceed three months. The Emergency Workers Act,[39] however, replaced the three month limit with a two year limit. (In what follows, we will refer to a sentence which combines a CCO and a term of imprisonment as a 'combination sentence'.) Pre-sentence detention is not counted for this purpose.

[234] Our initial view was that this provision did not permit the judge to impose a sentence of 265 days' imprisonment in relation to charge 2 (a period equivalent to time served), because that period exceeded the then maximum period of three months' imprisonment. Further, the sum of the periods of imprisonment served in relation to the two charges was more than three months. This is consistent with the submission of Mr Boulton's counsel, which proceeded on the basis that Mr Boulton was sentenced to about a year in gaol in addition to the CCOs.

[235] The question of whether the legislation, as it then stood, permitted the judge to impose a sentence of the 265 days served, made it necessary to consider the effect of the words 'after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served', which appear in parenthesis[40] in s 44(1)(b) of the Act. The Court sought further submissions on this issue.

[236] The Director submitted that the natural meaning of the provision, and the only meaning which would give effect to the words in parenthesis, was that 'a court may combine a CCO with a sentence of imprisonment if the custodial period remaining after deduction of pre-sentence detention is three months or less'. The purpose of the provision was to make clear that the phrase 'to be served', immediately preceding the words in parenthesis, referred to the time remaining to be served after sentence, and not the time calculated from the date when the offender went into custody, which is taken into account under s 18 of the Act.

[237] The Director submitted that this interpretation was consistent with the approach taken in Hancock v The Queen.[41] In that case, this Court when resentencing an offender imposed a sentence of 249 days' imprisonment, which was equivalent to time served, combined with a two year CCO. VLA and SAC adopted the Director's submission.

[238] We accept the Director's submission. At the same time, we note that this interpretation of s 44(1)(b) produces a counter-intuitive result. It means that there is no difference for this purpose between a person who has served a lengthy period of pre-sentence detention, and a person who has not served any pre-sentence detention at all. Both can be sentenced to a term of imprisonment (of up to two years' imprisonment)[42] in addition to a CCO. Moreover, if s 18 were for some reason inapplicable to a period of pre-sentence detention, the provision for the deduction of that period in calculating the additional term to be served by reference to s 44(1)(a) would not apply, so that the person could be given a term of three months' imprisonment in addition to the time already served. Of course, the sentencing judge would need to take these matters into account when applying the totality principle.

11 So far as I can tell, numerous other cases decided before and since Boulton have applied the same interpretation of s 44(1) whether the three-month ceiling or the two-year ceiling was operative. For example, as indicated in Boulton itself, in 2013, when the three-month ceiling applied, the Court of Appeal, in Hancock v The Queen, re-sentenced Ms Hancock to a combination sentence of 249 days' imprisonment (which period was declared as served) and a CCO for two years.[43] Similarly, in 2017, when the two-year ceiling was applicable, Ashley and Priest JJA observed, in DPP v Rivette, that "[a] head sentence of two years' imprisonment or more, but which reduced to less than two years to serve after deduction of pre-sentence detention, could be linked with a CCO".[44]

12 Put another way, it makes no difference how much time the offender has spent on remand before sentence. Instead, for the purposes of the applicable ceiling of imprisonment specified in the concluding words of s 44(1), what matters is whether the future period to be served (from the time of the imposition of sentence) is within that ceiling. Thus, if an offender has spent, say, two-and-a-half years on remand before sentence and that period is declared under s 18, provided the further period to be served is equal to or less than the applicable ceiling, s 44(1) authorises a combination sentence. If, in this hypothetical case, the applicable ceiling were the previous two years or less and the period the judge considered still to be served in prison were a further six months, then it would be permissible to impose a combined order.[45] Yet the period of imprisonment imposed in such a case would be three years' imprisonment (i.e. two-and-a-half years declared as pre-sentence detention and the six months to be served). As will be seen shortly, this latter point may be relevant to the second question to be addressed in this appendix concerning whether or not a non-parole period may (or must) be fixed under s 11(1)(b) in respect of the prison component of a combination sentence.

13 The text of the present version of s 44(1) is not meaningfully different from the previous versions considered in Boulton and applied in other cases. The major difference is that what was once "[three] months or less" from 2012 and became "[two] years or less" from 2014 is now (and from March 2017 has been) "one year or less". Thus, today, if the custodial period remaining "to be served" after deduction of pre-sentence detention is one year or less, it is permissible to combine the sentence with a CCO under s 44(1). Equally, adapting the remarks of Ashley and Priest JJA in Rivette to the present version of s 44(1), "[a] head sentence of [one year's] imprisonment or more, but which reduced to less than [one year] to serve after deduction of pre-sentence detention, could be linked with a CCO". That, of course, is this case.

14 The legislature must be presumed to know that s 44(1) has been construed by the Court of Appeal in the foregoing way. Thus, when amending s 44(1) only as to the ceiling on the imprisonment component of the combination sentence, and leaving the key part of the preceding text untouched, it can be assumed that the legislature intended that it would be construed in the same way under the new ceiling (mutatis mutandis).

15 This construction of the present version of s 44(1) is also supported by the remarks in the Explanatory Memorandum to the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, which became the Act that, from 20 March 2017, amended, inter alia, s 44(1) by substituting the words "one year or less" for the words "[two] years or less". In respect of clause 6 (which concerned amendments to s 11, to which I shall return shortly), this was said:[46]

Clause 6 inserts new section 11(2A) into the Sentencing Act 1991 to provide that if the court makes a [CCO] combined with an order of imprisonment (in accordance with section 44), it must not fix a non-parole period as part of the sentence under section 11(2). Section 11(2) of the Sentencing Act 1991 provides that when a court imposes a sentence of less than 2 years but not less than one year, the court may fix a non-parole period.

Section 44 of the Sentencing Act 1991 provides that a court may make a [CCO] in addition to a sentence of imprisonment, only if the unserved portion of the sentence of imprisonment is 2 years or less. Note that clause 12(1) of the Bill amends section 44(1) of the Sentencing Act 1991 to reduce this period from 2 years to one year or less. Clause 6 ensures that where a combination sentence is imposed, an offender cannot be released on parole before commencing the [CCO] component of the sentence.

16 In respect of clause 12 (which concerned amendments to s 44 made at the same time, i.e. from 20 March 2017), in so far as is relevant, the following was said:[47]

Clause 12 amends provisions in the Sentencing Act 1991 providing for imprisonment and [CCOs].

...

Subclause (1)(b) substitutes a reference to 2 years in section 44(1) of the Sentencing Act 1991 with one year. The purpose of this amendment is to reduce the period of imprisonment that can be combined with a [CCO] from 2 years to one year.

...

Subclause (4) omits from section 44(3) of the Sentencing Act 1991 reference to an offender being released on parole on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986). This consequential amendment is required as a result of clause 6 of the Bill, which ensures that where a combined order is made, an offender cannot be released on parole before commencing a [CCO].

17 Thus, consistently with the construction of s 44(1) in Boulton and as applied in numerous other cases, the Explanatory Memorandum acknowledges that it is the "unserved portion of the sentence of imprisonment" to which the words "[two] years or less" were applied previously and to which the new words "one year or less" are to be applied.

18 It follows that, in Mr Dunn's case, since he has already served over two years in custody, since that period is to be declared as pre-sentence detention, and since the unserved portion of the sentence is only a matter of days (and therefore within the applicable ceiling of one year or less), it is open, under s 44(1), to combine a sentence of two years and two months' imprisonment with a CCO.

Whether a non-parole period is to be fixed on such a combination sentence

19 The next question is whether, given that I intend to impose a sentence of two years and two months' imprisonment as part of the combination sentence, the mandatory language of s 11(1)(b) of the Sentencing Act compels the fixing of a non-parole period as well.

20 In resolving this issue, it is, I think, helpful to consider again the joint reasons of Ashley and Priest JJA in Rivette. By way of background, this was a Director's appeal against sentence in which a judge of the County Court had imposed a combined (aggregate) sentence of 715 days' imprisonment and a two-year CCO. The applicable imprisonment ceiling in s 44(1) was "[two] years or less". By the time of sentence, Mr Rivette had spent 581 days in custody, which the judge deliberately did not declare under s 18. His Honour was of the view that the period on remand (581 days) combined with the prison sentence of 715 days (which, together, added up to over three-and-a-half years' imprisonment), when coupled with a CCO, amounted to an appropriate sentence.

21 Ground 2 of the Director's appeal complained that the judge erred in failing to impose a head sentence with a non-parole period and in failing to declare pre-sentence detention contrary to ss 11(1)(b) and 18(1) of the Sentencing Act and DPP v Grech.[48] Their Honours dealt with Ground 2 in this way (it is a long passage, but it repays a careful reading):[49]

[57] As ss 11, 18 and 44(1) and (3) of the Act stood at the time when the judge imposed sentence, the legislation and the relevant authorities were to this effect:

(1) A sentence of imprisonment not exceeding two years could be combined with a CCO.

(2) A head sentence of two years' imprisonment or more, but which reduced to less than two years to serve after deduction of pre-sentence detention, could be linked with a CCO.[50]

(3) Imposition of a sentence of two years' imprisonment or more, even where time to be served was reduced below two years by reason of a declaration of pre-sentence detention, nonetheless required the fixing of a non-parole period.[51]

(4) Imposition of a sentence of two years' imprisonment or more, reduced by a declaration of pre-sentence detention to less than two years, accompanied by the fixing of a non-parole period and supplemented by the making of a CCO, was a course best avoided.[52]

(5) Ploys and contrivances designed to bring a matter within s 44(1) had been identified by this Court. They included (a) imposing an inadequate sentence of imprisonment, just below the maximum period set by s 44(1), and attaching a CCO; (b) imposing a sentence of imprisonment of just less than the maximum period in order to avoid the requirement of fixing a non-parole period, and then attaching a CCO; and (c) imposing a sentence of imprisonment of just less than the maximum period, ordering that pre-sentence detention not be declared as a period of imprisonment already served, and attaching a CCO. By not declaring pre-sentence detention in such a case, the offender would in fact spend more time imprisoned than the statutory maximum set by s 44(1) and yet be apparently amenable to the making of a CCO.

(6) Ploys and contrivances of these kinds had been deprecated by this Court. So, in Grech,[53] Ferguson JA[54] said this:

[55] The discretion to 'otherwise order' under s 18(1) in relation to pre-sentence detention is not unfettered. If there is a 'compelling' reason to do so, then it may be appropriate not to give credit for the period of detention served before sentence. An example may be where additional pre-sentence detention has been served than would otherwise have been the case because of the offender's own conduct.

[56] The question is whether it is permissible to exercise the discretion under s 18(1) solely in order to overcome the perceived difficulties which would arise from a sentence which combines a prison term, parole and a CCO.

And:

[72] In my opinion, it is not a proper exercise of the discretion under s 18(1) to achieve a result that circumvents the requirement to fix a non-parole period under s 11(1). I have reached this conclusion even though there may be good reasons why it would be preferable not to set a non-parole period when a CCO is ordered together with a term of imprisonment.

Again, in Basic,[55] the Court made these observations:

[31] This Court has, in recent times, seen a number of examples of trial judges having imposed sentences of two years, or just below, as a 'ploy' to enable a combination sentence of a term of imprisonment and a CCO to be ordered.

[32] This approach is inconsistent with the correct application of sentencing principle. It can result in sentences, including orders for cumulation, which do not adequately reflect the gravity of the offending or the offender's total criminality.

[33] This Court has also seen other contrivances used in an apparent attempt to circumvent the limitation created by s 44(1) of the Sentencing Act 1991 ('the Act'), and the difficulty of reconciling that provision with s 11 of the Act. Thus, trial judges have, on occasion, refused to declare pre-sentence detention ('PSD'), or full PSD, in accordance with s 18 of the Act so that the end result will be a sentence involving more than two years' actual incarceration, coupled with a CCO of some years' duration.

[34] This circumvention, through the use of s 18 of the Act, of the requirement that any sentence of two years or more be accompanied by the fixing of a non-parole period (save in the limited circumstances set out in s 11 of the Act) has been criticised by this Court in ... Grech. We endorse those criticisms.

[35] Plainly, the CCO provisions are not working as intended. Putting to one side the question of policy addressed in Boulton v The Queen, these provisions are distorting the sentencing process and producing artificial results. We would urge that the legislature give serious consideration to amending the relevant sections so as to avoid this consequence.

In Dordevic,[56] Weinberg and Priest JJA referred to there being a 'spate' of 23-month sentences, many of which were 'problematic'.

Then, in Hudgson,[57] the Court (Weinberg, Whelan and Priest JJA) said this:

[31] This Court has previously deprecated the practice of not declaring PSD in order to avoid the requirement, established by s 44(1), that a CCO not be combined with a sentence in excess of two years' imprisonment.

[32] In addition to sidestepping that requirement, the net effect of not declaring PSD was to make it appear that a sentence of less than two years' imprisonment had been imposed, when in truth, that was not so. That enabled her Honour to avoid fixing a non-parole period, which, pursuant to s 11(1) of the Sentencing Act, she would otherwise have had to do. It would have made little sense to order a CCO, and at the same time fix a non-parole period, and there is authority which suggests that such a course should not be adopted.

[33] The Director submitted that the failure to declare PSD amounted to a clear violation of proper sentencing practice. He submitted that, once specific error in that respect had been shown, it would follow that the entire sentencing exercise had miscarried. That in turn would require the respondent to be resentenced by this Court. In the course of that resentencing, the requirements of s 10(1) would have to be met.

[34] The respondent acknowledged that the sentencing judge's failure to declare PSD constituted specific error as the sentencing judge had contravened what this Court had said in Grech. He noted, however, by way of explanation, that this sentence had been imposed before Grech had been decided.

[58] Against that background of authority, this may be said.

[59] First, the judge imposed an aggregate sentence of 1 year and 350 days' imprisonment - that is, about 2 weeks less than the then statutory maximum which permitted the making of a CCO. The sentence fitted neatly into the 'spate' of 23-month sentences to which this Court referred in Dordevic.[58]

[60] Second, by not declaring pre-sentence detention, the judge effectively ensured that the applicant would be confined for a period of about three and a half years, which his Honour regarded as the appropriate period of imprisonment. At the same time, by not squarely imposing a sentence of three and a half years' imprisonment, his Honour avoided the obligation of fixing a non-parole period.

[61] Third, had his Honour fixed a three and a half year period of imprisonment, fixed a non-parole period and made a declaration in respect of pre-sentence detention, time yet to be served when sentence was passed would have been less than two years. The making of a CCO would then have been permissible. Further, depending upon the length of the non-parole period, and whether the respondent was released at the earliest possible time, the respondent might actually have served less time in prison than was the consequence of the judge's sentence. This possibility suggests that the judge was determined to ensure that the respondent did serve every day of the three and a half years' imprisonment for which his sentence provided.

[62] Fourth, if a declaration of pre-sentence detention is not to be made, it must be because there are compelling reasons.[59] In circumstances where his Honour considered that the necessary period of imprisonment was three and a half years, achievement of that outcome by (a) not fixing a non-parole period, and (b) not declaring pre-sentence detention, was an apparent contrivance. Further, on its face, sentencing the respondent to 1 year and 350 days' imprisonment, and not declaring pre-sentence detention, ensured that the respondent served about 3 and a half years' imprisonment without the ability to make a CCO being lost.

[63] Fifth, had an adequate sentence of imprisonment been imposed, an appropriate non-parole period been fixed, and a declaration of pre-sentence detention made, there is, in our opinion, no doubt that the statutory maximum set by s 44(1) of the Act would have been exceeded.

[64] The argument that, for laudable reasons, the judge considered that a CCO would be in the interests of the respondent and the community - by facilitating such hope of the respondent's rehabilitation as existed - could not justify the manufacture of a sentence which, in more than one way, offended relevant legislation.

[65] In the event, if it was necessary to decide the matter, we would hold that the Director made out ground 2.

22 Several points may be made. First, there was no ploy or contrivance in arriving at the sentence of two years and two months' imprisonment in Mr Dunn's case. Instead, while there may have been an element of serendipity in hitting upon such a prison sentence when Mr Dunn had only a matter of days before he was to complete that period in custody, I consider two years and two months' imprisonment, when coupled with a CCO of 18 months (with particular conditions), to be an appropriate and proportionate sentence, and to be consistent with the principles of parsimony in ss 5(3), (4) and (4C) of the Sentencing Act.

23 Secondly, and consistently with the foregoing point, I propose to declare, pursuant to s 18 of the Sentencing Act, the full 784 days of pre-sentence detention Mr Dunn has spent on remand since his arrest. There is no reason to do otherwise.

24 Thirdly, and more pertinently to the second question to be addressed in this appendix, as Ashley and Priest JJA observed in Rivette, "imposition of a sentence of two years' imprisonment or more, even where time to be served was reduced below two years by reason of a declaration of pre-sentence detention, nonetheless required the fixing of a non-parole period".[60] Yet, as their Honours also observed, "imposition of a sentence of two years' imprisonment or more, reduced by a declaration of pre-sentence detention to less than two years, accompanied by the fixing of a non-parole period and supplemented by the making of a CCO, was a course best avoided".[61]

25 The question remaining now, however, is whether the amendments that were made to ss 11 and 44 in March 2017 (which, in the circumstances of Mr Rivette's case, their Honours found unnecessary to consider[62]) now prohibit the fixing of a non-parole period where, under the new ceiling of "one year or less", the prison component of a combination sentence is two or more years in duration.

26 It is plain, from the passages in the Explanatory Memorandum extracted earlier, that at least one purpose of the principal amendments to s 11 (by inserting s 11(2A)) and ss 44(1) and (3) was to ensure that, where a combined order is made, a court "must not fix a non-parole period as part of the sentence under [s] 11(2)" and "an offender cannot be released on parole before commencing a [CCO]".[63]

27 The difficulties, however, are these. Section 11(2A) addresses itself, on its face, only to s 11(2), which concerns the discretionary decision to fix a non-parole period on a sentence of "less than [two] years but not less than one year". Thus, it is clear that, if the prison component of a combination sentence is "less than [two] years but not less than one year", s 11(2A) prohibits the fixing of a non-parole period on that prison sentence, despite s 11(2). But s 11(2A), in terms, says nothing about s 11(1)(b), which concerns the mandatory decision (subject to the express exceptions) to fix a non-parole period on a sentence of imprisonment "for a term of [two] years or more".

28 If s 11(2A) were to be read expressio unius est exclusio alterius, such a reading might be thought to compel the view that, where the prison component of a combination sentence is two years or more, the mandatory terms of s 11(1)(b) still would require the court to fix a non-parole period (subject only to the express exceptions within s 11(1), which are not likely to have any application in the vast majority of cases).

29 In my view, however, the provisions are not to be read in that way. Instead, I think that ss 11(1) and (2) must be read subject not only to s 11(2A) but also to ss 44(1) and (3). Let me explain.

30 First, while s 44(1) looks both to the past and the future possible custodial position of the offender, it is, in essence, a forward-looking provision. Among other things, it asks a court to consider that, if the sum of all the terms of imprisonment to be served is one year or less, a CCO might be imposed (in addition to the period of imprisonment). Plainly, the time spent in custody thus far also will be relevant to that question. Further, both the period spent in custody thus far (and declared under s 18) plus any period up to one year yet to be served are added together to form the total prison sentence component that the court imposes. But, for the purposes of the imprisonment ceiling specified in the concluding words of s 44(1), it is a question only whether the amount yet to be served is within that ceiling (of one year of less). If it is, then, whatever time has been served already, it is open in law to impose a combination sentence.

31 Secondly, the words that, in March 2017, were removed from the end of s 44(3) in its previous form were "or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986)".[64] Given the removal of those words, and those which remain in s 44(3) ("the [CCO] commences on the release of the offender from imprisonment"), it seems clear enough that it is not contemplated that an offender would be released on parole to commence the CCO component of a combination sentence. If that is so, it seems impossible that it would have been contemplated that a non-parole period would be fixed on any prison component of a combination sentence, for otherwise that would risk precisely that which the deleted part of s 44(3) once allowed.

32 Thirdly, in those circumstances, I think that, for the purposes of considering the concepts of being "imprisoned in respect of an offence for ... a term of [two] years or more" in s 11(1)(b) and "imprisoned in respect of an offence for a term of less than [two] years but not less than one year" in s 11(2) vis-à-vis the concept of "a sentence of imprisonment only of the sum of all the terms of imprisonment to be served (after the deduction of any period of custody that under [s] 18 is reckoned to be a period of imprisonment or detention already served)" in s 44(1), a court is to have regard precisely to that particular period of imprisonment - namely, that which is to be served (after the relevant deduction) and not the combination of that future period and any previous period that is to be declared as pre-sentence detention. In this way, notwithstanding that some period of, say, two years or more may have been spent on remand, under the new ceiling of one year or less, the future (and therefore, for this purpose) relevant period of imprisonment for the purposes of s 11 can never be more than one year. Therefore, s 11(1)(b) can never apply, even though, in combination, the period of imprisonment may be two years or more. Further, if the future period is less than one year, s 11(2) cannot apply either.

33 Fourthly, however, on this construction, s 11(2A) would still have work to do, albeit in narrow circumstances. In particular, whenever a court decides to impose a combination sentence with a prison component of (precisely) one year (which is the maximum period under the new ceiling) and there is no pre-sentence detention to be declared, without s 11(2A), a court would be required, because of the discretionary task set by s 11(2), to consider whether or not to fix a non-parole period. But, with s 11(2A) in place, that task is ousted. While it might be a narrow set of circumstances, I can imagine that a one-year prison sentence combined with a CCO might end up being a relatively common sentence.

34 Finally, this construction also still allows the total imprisonment component of a combination sentence to be seen and assessed for what it is. Thus, in the case where the court imposes a sentence of two years' imprisonment combined with a CCO and the offender has served (and the court declares), say, 18 months of pre-sentence detention, leaving six months to be served, the prison sentence is still regarded as a prison sentence of two years' duration for the purposes of proportionality, the maximum penalty and other sentencing principles or considerations. It is simply that, for the purposes of considering whether s 11 has any operation, the imprisonment "to be served" is only six months.

35 An alternative construction is to take a purely purposive approach and read the provisions as if they prohibit the fixing of a non-parole period in respect of the imprisonment component of any combination sentence imposed under s 44(1), irrespective of its length.

36 While these may be somewhat strained constructions of the applicable provisions, I find it impossible to make any meaningful sense of them otherwise.

37 Except for this. It may well be that the failure to extend the reach of s 11(2A) beyond s 11(2), and specifically to s 11(1)(b) (or, for that matter, to s 11(1)(a)), is nothing more than a legislative oversight. I should have thought that a simple way to achieve what appears to have been the desired result - namely, that a non-parole period is not to be fixed in respect of the imprisonment component of any combination sentence - would have been to insert, instead of s 11(2A), a provision along the following lines (whether in s 11 or in s 44):

Despite anything to the contrary in ss 11(1) and (2) of the Sentencing Act 1991, a court must not fix a non-parole period in respect of any term of imprisonment that, pursuant to s 44(1) of the same Act, forms the imprisonment component of a sentence of imprisonment combined with a community correction order.

38 I prefer, however, to strive to give the provisions some meaning. Hence my preference for the two alternative interpretations proffered above.

39 For these reasons, I am satisfied that I am prohibited from fixing a non-parole period on the imprisonment component (of two years and two months) of the combination sentence.

40 If I am correct in inferring that the purpose of the amendments was indeed to achieve the foregoing result, the legislature might consider putting this beyond doubt with a further amendment.

41 Finally, lest I be wrong in my conclusions on the two questions considered in this appendix, I make the following declarations.

42 First, if, contrary to my view, I am required to fix a non-parole period on the prison component (of two years and two months) of the combination sentence about to be imposed, I can say that I would fix it at 20 months.[65] However, in the present case, such an order would be pointless other than as to form, because Mr Dunn's "head" sentence is due to expire within days and, as a result, he will have completed it and been released before any decision could be made by the Board about parole.[66]

43 Secondly, if, for any other reason, contrary to my view, I am not authorised at all to impose the combination sentence about to be imposed, I can say that I would fix a sentence of three years' imprisonment with a non-parole period of 20 months. In the body of my reasons for sentence, however, I have explained why I consider the proposed combination sentence to be more appropriate.

[1] R v McNamara [2020] VSC 705 at [228].

[2] Contrary to s 325(1) of the Crimes Act 1958 (Vic).

[3] See, for example, Likiardopoulos v The Queen (2012) 247 CLR 265 at 271[9] & 274[24]-281[39] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ; French CJ agreeing 268-269[1]) & 282[44]-285[51] (per Heydon J).

[4] R v McNamara [2020] VSC 705 at [5]- [16].

[5] The sharp implement used to inflict the wound has not been able to be identified. Evidence of the assistance set out in paragraphs (a), (b) and (c) arises from admissions in Mr Dunn's interview with police.

[6] See R v Dunn (Rulings 1-5) [2020] VSC 372 at [4], [8](d), [58]-[60], [63] & [65].

[7] See s 325(4) of the Crimes Act 1958 (Vic).

[8] See DPP v Richardson [2007] VSC 221 at [18] (per Cavanough J).

[9] See DPP v Richardson [2007] VSC 221 at [18] (per Cavanough J).

[10] See R v Dunn (Rulings 1-5) [2020] VSC 372 at [4], [42], [63](u) & [65](d).

[11] See, for example, DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153 at 165[33]-[34] (per Maxwell P and Hargrave JA); Walsh v The Queen [2018] VSCA 334; (2018) 87 MVR 76 at 84[28] (per Priest and Weinberg JJA); Lee v The Queen [2018] VSC 343 at [31]- [32] (per Ferguson CJ, Priest and Beach JJA); Nelson v The Queen [2020] VSCA 219 at [43] (per Hargrave and T Forrest JJA).

[12] See, for example, DPP v Bourke [2020] VSC 130 at [32] (per Jane Dixon J); R v Nolan [2020] VSC 416 at [39] (per Taylor J).

[13] See, for example, Landmark v The Queen [2015] VSCA 178 at [62]- [63] (per Weinberg JA).

[14] Sentencing Advisory Council, SACStat Higher Courts, Accessory to serious indictable offence, 1 July 2013 to 30 June 2018.

[15] See, for example, R v Kyu Hyuk Kim [1999] VSCA 65 (6y/4y); R v Kitchin [2001] VSCA 66; R v Scott & Kitchin [2000] VSC 247 (7y/5y); DPP v Richardson [2007] VSC 221 (3y/20m); R v Saunders [2007] VSC 298 (304d); R v McKinley, Lawrence & McKinley [2008] VSC 581 (1½y; 2y; 2½y - all suspended wholly/partly); R v Motta & Campbell [2009] VSC 197 (3y9m; 2½y); R v Connally [2009] VSC 452 (undertaking); R v Kane [2011] VSC 19 (2y partly suspended); The Queen v WR [2013] VSC 603 (2y8m); The Queen v Robertson [2013] VSC 625 (18m/12m); The Queen v AC [2015] VSC 323 (probation); The Queen v Bacak [2015] VSC 474 (CCO); DPP v Vega [2015] VSC 683 (2y4m/582d); The Queen v Girgis [2016] VSC 43 (6m); DPP v DJ [2017] VSC 64 (CCO); DPP v Luke Marmo [2018] VSC 31 (4y/2y); The Queen v Considine & Anor [2019] VSC 386 (22m); DPP v Kotiau [2020] VSC 245 (CCO); R v Lee & Kong [2020] VSC 383 (2y; 18m); R v Harvey [2020] VSC 496 (4½y).

[16] R v Kitchin [2001] VSCA 66; R v Scott & Kitchin [2000] VSC 247.

[17] R v Kim [1999] VSCA 65.

[18] See, for example, R v Saunders [2007] VSC 298 (304d); R v McKinley, Lawrence & McKinley [2008] VSC 581 (1½y; 2y; 2½y - all suspended wholly/partly); R v Motta & Campbell [2009] VSC 197 (3y9m; 2½y); R v Connally [2009] VSC 452 (undertaking); The Queen v WR [2013] VSC 603 (2y8m); The Queen v Robertson [2013] VSC 625 (18m/12m); The Queen v AC [2015] VSC 323 (probation); The Queen v Bacak [2015] VSC 474 (CCO); DPP v Vega [2015] VSC 683 (2y4m/582d); The Queen v Girgis [2016] VSC 43 (6m); DPP v DJ [2017] VSC 64 (CCO); DPP v Kotiau [2020] VSC 245 (CCO); R v Lee & Kong [2020] VSC 383 (2y; 18m).

[19] DPP v Richardson [2007] VSC 221.

[20] DPP v Luke Marmo [2018] VSC 31.

[21] R v Harvey [2020] VSC 496.

[22] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[23] See s 8A(4)(b) of the Sentencing Act 1991 (Vic).

[24] See, for example, DPP v Karipis [2005] VSCA 119 at [15] (per Callaway JA); Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 342[155] (per Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[25] See ss 74 & 74AAB of the Corrections Act 1986 (Vic).

[26] See s 74AABA(1) of the Corrections Act 1986 (Vic).

[27] See ss 74AABA(3) & (4) of the Corrections Act 1986 (Vic).

[28] See, for example, Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 352[200] (including footnotes 130-132) (per Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[29] See s 5(2AA)(a) of the Sentencing Act 1991 (Vic).

[30] Later in the day, the parties appeared before the Court on an urgent application. I was advised that, as a result of Mr Dunn's being credited with emergency management days, the Secretary to the Department of Justice and Community Safety, pursuant to s 58E of the Corrections Act 1986 (Vic), had reduced the length of the sentence of imprisonment now being served by him, with the upshot being that he was due for release today. The parties submitted that I should order, pursuant to s 104A(1)(a)(i)-(iii) of the Sentencing Act 1991 (Vic), and consistently with the effect of s 44(3) of the same Act, that the CCO be amended by deleting the words "on 4 November 2020" (as the nominated release date) and the words "(i.e. from 4 November 2020 to 3 August 2021)" referred to in the curfew condition. The effect would be that it was clear that Mr Dunn's CCO commenced today, which was the date of his release from imprisonment, in accordance with s 44(3). I made that order to which, for the avoidance of doubt, Mr Dunn consented. Sensibly, the prison authorities arranged for Mr Dunn's transport to Wangaratta tonight, as well as temporary accommodation before he moves back into his home, which had been boarded up in his absence.

[32] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 339[136] & 360[234]-361[239] (per Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[33] My emphasis (except for the heading).

[34] My emphasis (except for the heading).

[35] My emphasis. The CCO provisions, including s 44(1) in this form, were inserted into the Sentencing Act 1991 (Vic) by s 21 of the Sentencing Amendment (Community Correction Reform) Act 2011 (Vic).

[36] My emphasis. This amendment was effected by s 8 of the Road Safety and Sentencing Acts Amendment Act 2012 (Vic).

[37] My emphasis. This amendment was effected by s 19 of the Sentencing Amendment (Emergency Workers) Act 2014 (Vic).

[38] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 339[136] & 360[234]-361[238] (per Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (my emphasis; some footnotes omitted, two added (i.e. footnotes 40 and 42).

[39] This is a reference to the Sentencing Amendment (Emergency Workers) Act 2014 (Vic).

[40] I assume that this reference to "parenthesis", and the two references that followed in the next paragraph, were meant instead to be to the plural "parentheses" (as in round brackets instead of the notion of a phrase inserted as an explanation into a passage which is grammatically correct without it, which, of course, is also the effect of the words in parentheses in s 44(1)).

[41] Hancock v The Queen [2013] VSC 199.

[42] In context, this must be taken to mean, under the 2014 amendments, "up to two years' imprisonment [beyond any pre-sentence detention declared]".

[43] Hancock v The Queen [2013] VSC 199 at [41]- [42] (per Coghlan JA) and [43]-[45] (per Nettle JA).

[44] DPP v Rivette [2017] VSCA 150 at [57] (per Ashley and Priest JJA) (my emphasis).

[45] See, for example, DPP v Rivette [2017] VSCA 150 at [61] (per Ashley and Priest JJA).

[46] Explanatory Memorandum to the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, p 7 (my emphasis in underlined bold italics). Clause 6 became s 6 of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic), which inserted s 11(2A) in the Sentencing Act 1991 (Vic).

[47] Explanatory Memorandum to the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, pp 8-9 (my emphasis in underlined bold italics). Clause 12 became s 12 of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic), which inserted s 11(2A) in the Sentencing Act 1991 (Vic). Section 12(1)(b) had the effect of substituting "one year or less" for "2 years or less". Section 12(4) deleted from the end of s 44(3) of the Sentencing Act 1991 (Vic) the words "or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986)".

[48] DPP v Grech [2016] VSCA 98.

[49] DPP v Rivette [2017] VSCA 150 at [57]- [65] (per Ashley and Priest JJA) (some footnotes omitted; others added). I should add that I was a member of the same Court. However, I wrote a separate judgment agreeing with their Honours that the appeal should be allowed on the basis of Ground 1 (a complaint of manifest inadequacy) and re-sentenced as proposed. I did not consider it necessary to address the other grounds of appeal. See DPP v Rivette [2017] VSCA 150 at [96]- [101].

[50] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 360[233]-361[238]. The statutory maximum which applied in that case was less than three months. But the principle was transposable when the statutory maximum was enlarged to not more than two years.

[51] Deng-Mabior v The Queen [2015] VSCA 179 at [33]- [37] (per Maxwell P, Weinberg and Kyrou JJA); Abdou v The Queen [2015] VSCA 359 at [29]- [30] (per Redlich and Beach JJA and Beale AJA).

[52] Difficulties were highlighted in Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 at 361[238]. And see DPP (Vic) v Hudgson [2016] VSCA 254 at [32].

[53] DPP v Grech [2016] VSCA 98.

[54] Ashley and Weinberg JJA agreeing; citations omitted.

[55] DPP v Basic [2016] VSCA 99 at [31]- [35] (per Weinberg AP, Redlich and Ferguson JJA) (citations omitted).

[56] Dordevic v The Queen [2016] VSCA 166 at [33].

[57] DPP (Vic) v Hudgson [2016] VSCA 254 [31]-[34] (citations omitted).

[58] Dordevic v The Queen [2016] VSCA 166 at [33].

[59] See R v Fordham (Unreported, Court of Criminal Appeal, 1 March 1988) and R v Foster [2000] VSCA 187 at [38] (per Batt JA) & [39] (per Chernov JA).

[60] DPP v Rivette [2017] VSCA 150 at [57] (proposition (3)) (per Ashley and Priest JJA).

[61] DPP v Rivette [2017] VSCA 150 at [57] (proposition (4)) (per Ashley and Priest JJA).

[62] DPP v Rivette [2017] VSCA 150 at [32] (sub-paragraph (3), including footnote 24) (per Ashley and Priest JJA). In that footnote, their Honours said this, among other things: "The ... amendment [to s 44(3)] was complemented by the insertion of s 11(2A) into the Act, which on one view does not make the reference to parole in s 44(1) any easier to understand". I agree. See below.

[63] Explanatory Memorandum to the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016, pp 7-9.

[64] This amendment was effected by s 12(4) of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic).

[65] Such an order would be in accordance with s 11(3), which requires that a non-parole period fixed under s 11(1) or (2) must be at least six months less than the term of the sentence.

[66] In fact, his prison sentence expired today, i.e. the day of the imposition of sentence. See footnote 30, above.