R v Guthrie & Nuttal [2006] VSCA 192

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 The applicants, Jason Paul Guthrie ("Guthrie") and Daniel John Nuttal ("Nuttal"), who are now aged 36 and 29 years respectively, were presented jointly before the Supreme Court at Shepparton, on 3 November 2004, for the murder at Shepparton on 9 February 2003 of John Gordon MacKay and Allan Raymond Thomas. Guthrie pleaded guilty to the murder of MacKay (count 1) but not guilty to that of Thomas (count 2). Nuttal pleaded not guilty to both counts. On 24 November 2004, the jury returned verdicts of guilty against each of them on each count.

2 After hearing pleas in mitigation of penalty presented on behalf of each, the learned sentencing judge, on 4 February 2005, imposed the following terms of imprisonment:

Guthrie

Count 1 - 27 years;

Count 2 - 25 years.

His Honour directed that five years of the sentence imposed on count 2 be served cumulatively with that imposed on count 1. This created a total effective sentence of 32 years, in respect of which a non-parole period of 26 years was fixed.

Nuttal

Count 1 - 25 years;

Count 2 - 25 years.

Again, his Honour directed that five years of the sentence imposed on count 2 be served cumulatively with that imposed on count 1, creating a total effective sentence of 30 years, in respect of which he fixed a non-parole period of 24 years.

3 Guthrie now seeks leave to appeal against his sentence on the grounds that:

1. The learned sentencing judge erred by giving insufficient weight to his plea of guilty on count 1 on the presentment.

2. The individual sentences, the total effective sentence and the non parole period are manifestly excessive.

4 Nuttal seeks leave to appeal against his conviction and sentence on the grounds that:

Conviction[1]

"1. The learned trial judge erred in failing to order or direct that the applicant be tried separately from his co-accused, Jason Paul Guthrie, consequent upon the several applications for a separate trial which were made during the trial by counsel for the applicant.

2. There has been a substantial miscarriage of justice by reason of the fact that the applicant was tried jointly with his co-accused, Jason Paul Guthrie.

3. The learned trial judge erred in his directions to the jury in that the learned trial judge failed to direct the jury in such a manner as to ensure that the jury, in considering the Crown case against the applicant on both counts,:

(a) confined its consideration to the evidence adduced in the trial of the applicant; and

(b) wholly disregarded that evidentiary material which had only been adduced in the trial of the applicant's co-accused, Jason Paul Guthrie."

Sentence

"1. The learned sentencing judge has failed to accord any, or sufficient weight to the sentencing principle of totality.

2. The learned sentencing judge has erred in the exercise of his discretion in that the magnitude of the sentence imposed on count 2 which was "directed" to be served cumulatively upon the sentence imposed on count 1 is, in all the circumstances, manifestly excessive.

3. The learned sentencing judge has failed to accord any, or sufficient, weight to the sentencing principle of parity.

4. The sentence imposed upon the applicant is excessive in that the disparity with the sentence imposed upon the co-offender, Jason Paul Guthrie, does not properly reflect the comparatively limited role of the applicant in the commission of the two offences for which the applicant fell to be sentenced.

5. The sentence imposed upon the applicant is, in all the circumstances of the case, manifestly excessive."

5 We now turn to the circumstances of the offences.

The Background[2]

6 On the evening of Saturday 8 February 2003, Nuttal, responding to a telephone call from Guthrie, who suggested that they should spend the evening together, agreed to meet him. They purchased cans of mixed alcoholic drink at a bottle shop and, after drinking for some time at a football ground, Nuttal left, driving a blue Ford motor vehicle belonging to his mother, in order to take her to work. He later returned and the two men remained together for the rest of the evening.

7 At approximately 2.00 a.m., on Sunday 9 February 2003, they drove to the victims' home in Ashenden Street, Shepparton. Forcible entry was effected through the front door to the house. The two victims were overpowered and taken from the premises, dressed only in their underpants. MacKay was placed in the back seat and Thomas was secured in the boot of the vehicle. Nuttal then drove to a secluded spot on the banks of the Goulburn River, a short distance outside Shepparton. During the course of that drive, Guthrie indicated that he intended to kill MacKay. On arrival at the river, Guthrie dragged MacKay from the vehicle and proceeded to beat him with a metal car lock, striking him many times and with considerable force. According to Nuttal in a subsequent police interview, he (Nuttal) was still seated in the driver's seat of the car as the beating was occurring. MacKay was then dragged to the river, thrown into the water and jumped on in order to drown him. The two men then removed Thomas from the boot of the vehicle. Thomas was also dragged to the river and held under the water until it was apparent that he too was dead. Following the killings, Guthrie and Nuttual travelled to another location, on the Broken River, where they burnt the clothing that they were wearing, fearing that it might have implicated them in those events. They then resumed drinking for a further period of two hours.

8 In order to place the evidence of the occurrences on this night into context, it is necessary to provide some background of the association between the applicants and the deceased men. Thomas met Guthrie in late 1999, through Guthrie's brother, Craig Guthrie, who worked with Thomas at the Shepparton Council. Guthrie subsequently became a regular visitor to Thomas' home; on some occasions in company with Nuttal. In August 2002, according to the evidence of Faye Thomas, the deceased's sister, Thomas was serving a period of two months' imprisonment for a drink driving offence. During this time MacKay and Guthrie resided at the home of Ms Thomas and a relationship developed between Guthrie and her. Ms Thomas stated that, without her brother's knowledge or permission, MacKay used his bank keycard. However MacKay alleged that it was Guthrie who withdrew the funds. Guthrie was clearly angered by this allegation. Whether or not it was true however remains unresolved.

The Assault on MacKay on 12 November 2002

9 On 12 November 2002, and apparently in consequence of this dispute, an argument developed at the home of the two deceased in the course of which Guthrie assaulted MacKay. Three versions of this incident were given at the trial.

10 According to Mary Pedder (Thomas' girlfriend) who was present at the time, Thomas queried Guthrie about the money that had been withdrawn from his account. Guthrie told him that it was MacKay who was responsible. Guthrie then attacked MacKay whilst MacKay was seated in a chair, grabbing him and banging his head against a wall. MacKay fled and hid, but Guthrie found him and kicked him while he was on the ground. When he stopped assaulting MacKay, he remarked that "it wasn't over ... I'll get you when I can". Thomas told Guthrie to stay away from the property as he was no longer welcome there. During cross-examination by counsel for Nuttal, Ms Pedder added that, as MacKay was being assaulted, Guthrie said "I'm going to cut your throat ... I've had enough of you". At the suggestion of Thomas, she subsequently telephoned his sister and asked her to come and take Guthrie home. At around this time and before the arrival of Ms Thomas, Guthrie left the premises to purchase some beer. MacKay then left at her suggestion to do so before he returned. In due course, Guthrie arrived back at the house with his friend, Jason Keegan, with whom, shortly afterwards, he went to look for MacKay. They returned with him and Guthrie again re-commenced his attack him; kicking MacKay in his ribs with steel-capped boots. Thomas unsuccessfully attempted to pull Guthrie away a number of times. The attack finally ceased when Guthrie heard Ms Thomas outside, sounding the horn of her car.

11 A generally similar description of these events was provided by Ms Thomas, who stated that upon her arrival at the house she saw Guthrie holding MacKay by the throat and smashing his head against a wall. She convinced him to cease his attack and when he was absent from the room she told MacKay to leave. He complied, but returned and left once again. Some time later, Jason Keegan arrived at the house. Guthrie and he then ran down the street, grabbed MacKay who it appears was hovering nearby (presumably waiting for Guthrie to leave before he went back) and dragged him back to the driveway. Guthrie kicked and punched him until Keegan intervened and stopped the attack. Ms Thomas subsequently left the premises with Guthrie and Keegan. The initial assault on MacKay that she witnessed on her arrival at the house, she said, would have lasted a couple of minutes. According to her, the later one which took place after MacKay was dragged back into the premises, would have continued for approximately 10 minutes.

12 On the way home, Guthrie told her that he was sorry and that he should not have acted as he did. She said that she understood that there were two motivating factors behind Guthrie's conduct on this occasion. First, he was angered by the allegation that he had taken money from Thomas' bank account while Thomas was in gaol, and secondly, because he considered that MacKay had been disrespectful to her. To her knowledge there had been no animosity between Thomas and Guthrie prior to this time. A day or two later, Guthrie told Ms Thomas that he had not finished with MacKay and that he was still going to cut his throat. She said that she ceased her relationship with Guthrie, on 18 January 2003, as he abused her and threatened to cut her throat, drag her around the yard and put her in hospital. He had previously told her that he had assaulted his ex-wife and had assaulted and threatened to kill a man called "Bob", although, in re-examination, she said that even when Guthrie was drunk and abusive to her, he was never physically violent.

13 According to Jason Keegan, he was telephoned by Guthrie on the evening of 12 November 2002 and invited to the deceased's home to have some drinks. Approximately a half an hour after his arrival, Guthrie told him that he had "chased off Kiwi" (MacKay). However Keegan had seen MacKay across the road and mentioned this to him. Guthrie and he then went over to where McKay was standing and Guthrie proceeded to assault him, punching him about 20 times, after demanding that he apologise to Ms Thomas. Guthrie hit MacKay "pretty hard", a dozen or so times. In cross-examination, he said that he had known Guthrie, who he described as a good friend, for 18 years and had never seen him acting violently on any other occasion.

14 An ambulance and police attended the scene and MacKay was taken to Goulburn Valley Base hospital. He had sustained bruising to the chest, small superficial bruising over his body and some bruising to the head. X-rays revealed two fractured ribs, a punctured lung and he suffered some sub-cutaneous emphysema as a result of the injuries.

Events surrounding the deaths of MacKay and Thomas

15 At about 5.30 p.m., on Saturday 8 February 2003, Peter Power was at a friend's house in company with Nuttal, when Nuttal received a telephone call and said that he had to leave. He appeared to be in a hurry and drove off in a blue Ford motor vehicle.

16 At about 2.30 a.m., on Sunday 9 February 2003, the deceaseds' neighbours, Candice La Porta and Alan Birth returned to their home. They observed a blue Ford Falcon car parked directly outside. They did not notice anyone in it although both conceded that it was possible that there may have been someone there. Ms La Porta, however, stated in re-examination that she looked into the car as she walked past. After they entered their home, each of them heard some banging noises emanating from the deceaseds' home, followed by a lull, then the sounds of a car boot and two car doors slamming. Birth looked out the window and saw that the car had reversed up the driveway. It then accelerated quickly away.

17 Ms Pedder went to the deceaseds' home at about 10.30 a.m. on Sunday 9 February 2003. She observed that the gates were open, the front door had been dislodged from its hinges and the padlock had been broken.

18 In the afternoon of Sunday 9 February 2003, Guthrie attended the home of Keegan who said that Guthrie did not appear to be upset or angry and noted nothing unusual about him.

19 On the same afternoon, police attended the vicinity of the Goulburn River where the body of MacKay had been found. There appeared to be drag marks leading to the water where his body was located.

20 On the next day, at 11.30 a.m. the body of Thomas was also discovered in the river.

21 At approximately 2.41 a.m. on Tuesday 11 February 2003, police attended Nuttal's premises. He was arrested and taken to the Shepparton Police Station.

22 On the afternoon of Wednesday 12 February 2003, Guthrie telephoned another friend Douglas Gribble ("Gribble") and informed him that Nuttal had been charged with murder. Not long after, Christopher Gribble, the brother of that witness, accompanied by Gribble and Jason Keegan, collected him and dropped his brother and Guthrie off at a local tennis court. He picked them up about a half an hour later and drove them back to Gribble's home in Invergordon. Christopher Gribble gave evidence that he did not hear any discussion in respect of the two killings that had occurred in Shepparton. However Gribble stated that, while they were in the car, Guthrie said to him "I have fucked up, I have killed two people, I've got them". Upon returning to Gribble's home, Guthrie made further admissions to him. He said that two men were killed, one with a steering lock and the other with an iron bar and that one man was killed at the house and placed in the boot. Gribble initially stated that Guthrie had told him that the other man was killed by Nuttal with an iron bar in the bush, but later that Guthrie had told him that he (Guthrie) had killed this man with the bar. He said that he was told that Guthrie and Nuttal subsequently dumped the bodies in the river, burnt their clothes and left.

23 Gribble's partner, Tracey Harnetty, said that Guthrie had told her that he had "stuffed up" as "him and his mate had killed a couple of guys". Guthrie was very shaken and upset and talking "gibberish".

24 At approximately 10.40 a.m. on Thursday 13 February 2003, police attended at Gribble's home and arrested Guthrie.

Records of interview and re-enactment

Daniel Nuttal

25 On 11 February 2003 police interviewed Nuttal, initially at the Shepparton Police Station and subsequently by way of re-enactment on the banks of the Goulburn and Broken Rivers.

26 In summary, he stated that during the evening of Saturday 8 February 2003 Guthrie and he purchased a "box of bourbon" from the "Liquorworks" bottle shop. They commenced drinking alcohol at the river behind a football ground. After engaging in this activity for some time, Nuttal left his companion at the ground, picked up his mother and drove her to work. He returned, collected Guthrie and they went to Nuttal's home. Guthrie appeared to be drunk prior to consuming any alcohol with him. Some time later Guthrie told him that he wanted to go for a drive to see somebody, but initially did not indicate where or for what purpose. Nuttal agreed and, on ascertaining their destination, drove to the home of the deceased. Once there, Guthrie left the vehicle and kicked in the front door of the house. He entered and, shortly afterwards, returned to the car with MacKay, whom he placed in the back seat. Nuttal had also left the car by this stage, but had only reached the front door when Guthrie came out with MacKay whom he was holding in a headlock. Nuttal asked Guthrie what was happening, but did not receive an answer. Nuttal then reversed the car into the drive way at Guthrie's request, although, at the time, he did not know why he was asked to do this. Guthrie then returned to the house and dragged out Thomas who was lying on his back. Nuttal helped Guthrie lift him into the boot of the vehicle. He did so because he was scared of Guthrie. He did not know what, if anything, Guthrie was going to do to Thomas. As they were driving away from the house, Nuttal again asked Guthrie what was happening and was told that he wanted to "teach them a lesson", employing words to that general effect. Guthrie then instructed him to drive to the river. When they arrived, Guthrie dragged MacKay out of the back seat and started "laying in to him" with half of a steering-wheel lock. MacKay was on the ground and curled up in a ball trying to defend himself from this attack. Nuttal left the car and attempted to stop Guthrie, but was shrugged off. Guthrie then dragged MacKay to the water and drowned him. Nuttal yelled at Guthrie "what's going on?", but he was not able to recall his response. Guthrie then opened the boot of the car and, at his request, Nuttal, acting out of fear, helped him pull Thomas out and place him on the ground. Thomas was still alive at this stage and Guthrie dragged him to the river and pushed him beneath the surface until he stopped moving. Guthrie applied force to Thomas' chest area as he was doing this and may have had him by the throat. Guthrie then threw both pieces of the club-lock into the water. Nuttal then drove back to his home and they both changed their clothes before driving to Broken River and burning the clothes they had been wearing at Guthrie's suggestion. They returned to Nuttal's house where they remained together until Guthrie later left on foot.

27 On 13 February 2003 the police interviewed Guthrie. In summary, Guthrie, stated that, on Saturday 8 February, Nuttal and he consumed a "slab" of bourbon cans of mixed drink and he was "pretty pissed - off me head as a matter of fact". During the evening, they drove to a number of places, including Liquorworks, although he could not remember everywhere they went as he was very intoxicated. He said that he suggested to Nuttal that they should "get" MacKay, to which Nuttal responded "Yeah, no worries, let's go". By "get" he meant to give MacKay a beating and take him down the river and kill him. They drove to the house of the deceased where Nuttal kicked in the front door and ran into Thomas' room and attacked him. He had told Nuttal prior to entering that they would go in "no matter what". Guthrie picked up a wooden stick from near the door and went to MacKay's bedroom and hit him with it, causing it to break. He then grabbed MacKay and put him in the back seat of the car and ordered him not to move. Nuttal dragged Thomas from the house and dropped him on the front porch. Thomas was making noises like "ahh", as he was breathing. Nuttal went to the car, reversed it into the driveway and they put Thomas into the boot. They then took their victims to the river in order to "give 'em a beltin'" and leave them there. By this stage, Guthrie realized that Thomas was going to die by the sound of his breathing and asked Nuttal what they were going to do. Nuttal responded "there's only one way to fix it, take 'em to the river ... and kill 'em". Nuttal suggested the location at which this would be done. When they arrived, Guthrie pulled MacKay from the car, hit him several times on the head and body with a club-lock, threw him into the water and drowned him. Nuttal then extracted Thomas from the boot, gave him "a few hidings with the club-lock" and they both dragged him down to the water (still alive) and drowned him "until the bubbles stopped". Guthrie's intention when putting the two victims into the water was to kill them. He did not throw the club-lock into the river, but placed it in Nuttal's car. They then burnt their clothes and had a few more drinks, although he conceded that the burning of their clothes may have occurred at another location. They returned to Nuttal's home, had a shower and went to sleep. Guthrie awoke in the morning and Nuttal dropped him off at Jason Keegan's house. Guthrie had decided to "get" MacKay, as they had had some prior conflicts, including an occasion, four months prior to this incident, on which he assaulted MacKay for demonstrating a lack of respect for his then girlfriend, Faye Thomas. He also said that there was a dispute with MacKay over his use of Thomas' bankcard and agreed that he may have made threats against MacKay after the earlier assault. He understood that Nuttal knew that he was going to "get" MacKay, but probably not in such a serious fashion. Nuttal was "all for it" he said, and prior to entering the home he told Nuttal that he would "get" Thomas. Guthrie subsequently discussed this incident with four people, Doug Gribble, his girlfriend Tracey Harnetty, Chris Gribble and Jason Keegan. He did not threaten Nuttal in any way, Nuttal did not try to stop him from assaulting MacKay and was "all for it".

Forensic examination of the crime scene

28 On 11 and 12 February 2003, police divers unsuccessfully searched the Goulburn River where the deceased were killed in an attempt to locate the club-lock which Nuttal asserted had been thrown there.

Forensic examination of both deceased

29 An autopsy conducted on the body of MacKay on 10 February 2002 by Dr David Ranson, a senior forensic pathologist, disclosed the presence of substantial areas of bruising and lacerations to numerous parts of the body; lacerations to the top and back of the head and an underlying fracture of the skull, with depression of the skull bone down in the cranial cavity; numerous fractures to the body, including the right side of the ribs, the back of the lower chest, the right side of the hip, pelvis and fibula; and water-logging in the lungs, together with a large quantity of sand and silt type material.

30 It was concluded by Dr Ranson that the injuries were caused by multiple applications of force to the body (in this case deemed to be severe) and the pattern and features of various areas were consistent with force being applied with a steering lock. In his opinion the cause of death was immersion, in a man with skeletal and soft tissue injuries. The injury to the head may have changed his conscious state, but the cause of death was drowning.

31 An autopsy conducted on the body of Thomas on 10 February 2002, also performed by Dr Ranson, revealed a large number of superficial post-mortem abrasions on the body, a fracture of the hyoid bone and a fracture of the thyroid cartilage on the right side of the Adam's apple region of the larynx. Sand and silt-like material were located in the lungs.

32 Dr Ranson was of the opinion that the haemorrhaging associated with the fractures in the neck indicated that Thomas was still alive after the fractures of the neck structures were caused. Such damage was more likely to have been caused by a compressive force. He concluded that the cause of death in his case was a compression of the neck in circumstances of immersion, although he could not say at what stage the compression occurred, that is, whether in the water or earlier.

The Case for the Prosecution

Guthrie

33 The prosecutor submitted that by pleading guilty to the murder of MacKay Guthrie had admitted the elements of the offence of murder and the appropriate and obvious decision was a verdict of guilty. Therefore the focus in Guthrie's trial had to be placed on the question whether he was guilty of the murder of Thomas because he claimed that it was Nuttal who killed the victim. However, the Crown argued, Guthrie and Nuttal were equally guilty of Thomas' murder even if Guthrie's version of events was accepted.

34 According to Guthrie's police interview, the two men went together to the house. MacKay was overpowered by Guthrie, who intended to kill him. He was aware that Thomas was already injured when he was brought out as he seemed to be experiencing difficulty breathing. Thomas was then placed inside the boot of the car by both men. It was apparent at this early stage, it was argued, that Guthrie was acting in a joint venture with Nuttal.

35 On their way to the river, Nuttal, according to Guthrie's record of interview, said "there's only one way to fix it. Take them down to the river and kill them". This, the prosecutor argued, was the clearest evidence in Guthrie's case of an agreement to kill both MacKay and Thomas and it was pursuant to that agreement that he then took MacKay from the car and ferociously attacked him with the wheel lock.

36 Having just killed MacKay, it was argued, he could not permit Thomas to leave the area alive. According to Guthrie, it was Nuttal who got Thomas out of the boot and gave him "a few hidings" with the wheel lock, while he stood there and watched. When Nuttal finished they both dragged Thomas to the river and, according to Guthrie, it was Nuttal who threw Thomas in the water and jumped on him, although Guthrie did admit to being involved in the process.

37 The Crown submitted that when all the evidence was taken into account, it was clear that Guthrie was acting in concert with his companion.

38 The prosecution submitted that Guthrie, on his own account, having just murdered MacKay, then watched as Nuttal removed Thomas from the boot and drowned him in the river. Counsel pointed out that nothing in Guthrie's presence or behaviour was suggestive of an attempt to stop what was occurring. He was not simply present, it was said, but actively supported what was occurring on his own description. Accordingly, the prosecution submitted, it was clearly beyond any doubt that Guthrie was guilty of the murder of Thomas whether or not it was his hand that held Thomas' head under water.

39 In relation to the defence contention that Thomas may well have been dead at the house, the prosecutor directed attention to Guthrie's record of interview in which he stated that Thomas was alive and struggling at the time they were at the river and they had to force him under the water.

Nuttal

40 The prosecutor argued that Nuttal could be held responsible for the charge of murder, even though it was done at the hands of another. Although there was no direct admission of any such agreement, it was said, the inference could be drawn that he was party to an agreement to kill MacKay and then Thomas, or that he agreed, by what he did or said, to at least bash the two victims and foresaw the possibility that MacKay and Thomas might be killed or seriously hurt. He further submitted that if the jury were not satisfied beyond reasonable doubt with respect to those propositions, they could be satisfied he was there, watching what was going on in both instances and, by his behaviour and presence, it was clear that he was aiding and abetting Guthrie when these two deaths occurred.

41 The Crown submitted that Nuttal blamed Guthrie for almost everything, saying that he was frightened of him and that Guthrie had threatened him. However, it was apparent, it was argued, that that claim was not true and constituted nothing more than an attempt by him to avoid responsibility. Nuttal stated he was largely not involved in the death of MacKay, but the evidence made clear that he was a part of a joint enterprise as he willingly drove Guthrie to the victims' home. Counsel pointed out that although Nuttal claimed that he understood that Guthrie only wanted to talk to someone, that claim was highly unlikely to be true given that the two accused were very close friends and that Nuttal later witnessed Guthrie get out of the car, kick in the front door, bring MacKay out, place him in the back seat and then return to drag out Thomas. Of particular damage to Nuttal's credibility, it was said, was the evidence of La Porta and Birth who said there was no one in the car nor anyone in the vicinity at around the time the deceased men were taken from their home.

42 With respect to the claim by Nuttal, when interviewed, that he drove Guthrie and their two prisoners to the river at Guthrie's direction, the prosecution argued that it was open to conclude that he knew where they were going and that he needed no direction from Guthrie.[3] He also knew, the prosecution submitted, what was intended to happen when Guthrie said to him "I want to teach these cunts a lesson".

43 With respect to what Nuttal claimed had happened at the river, the Crown pointed to the beginning of Nuttal's police interview where he made the admission of helping Guthrie drag MacKay to the water but then later retracted that by saying "I told him to stop, I pulled him away. He shrugged me off. I fell to the ground". It was then pointed out that, according to Nuttal, having seen Guthrie savagely beat MacKay with the wheel lock and then hold him under water, he did not drive away nor save himself. It was also significant, the prosecutor submitted, that there was no suggestion of any protest or fear in the early part of his interview.

44 When the evidence was considered carefully, the Crown submitted, it was apparent that Nuttal had entered into an arrangement with Guthrie that MacKay was to be killed or at least seriously injured. On his own version, it was argued, Nuttal watched Guthrie attack MacKay with the club lock and then assisted him to take MacKay to the water. It could, in all the circumstances, be concluded beyond reasonable doubt that he had formed an understanding or arrangement that Mackay was to be killed and it was open to conclude that he was acting in concert with Guthrie who then performed the fatal act of drowning this victim.

45 Nuttal, the Crown submitted, was equally guilty of the murder of Thomas. Again, or according to his own version, he put Thomas into the boot and locked him in there. He also told the police that he watched as Thomas was dragged to the river and held under water and drowned.

46 The Crown submitted the inference could be drawn that Nuttal was party to an agreement or understanding with Guthrie that MacKay would be killed. It followed that Thomas had to die as well and he helped that occur.

47 Counsel then submitted that whether Nuttal actually foresaw the possibility that Thomas would be killed, it must have become overwhelmingly obvious to him that this would happen when he witnessed MacKay's murder.

48 With respect to the possible responsibility of Nuttal as an aider and abetter of Guthrie, the Crown argued that he can be seen to have assisted and supported Guthrie by his presence and behaviour. By his conduct, he clearly indicated to his friend that he approved of and encouraged his actions.

49 With respect to Nuttal's defence of duress, the prosecution submitted that it could be safely dismissed as nonsense. He had not even asserted that any threat of death or really serious injury was made. The prosecution heavily challenged the claim that a threat of any kind was even made, submitting that these were two good friends who had been drinking together before they went to the house of the deceased.

The Case for the Defence

Guthrie

50 Counsel for Guthrie submitted that the purpose in going to the victim's house, was exactly as Guthrie succinctly put it, to "get" MacKay. It was equally compelling that once there, it was Nuttal who kicked in the door and then went to Thomas' room. At that point, if not earlier, Guthrie was aware of the possibility of Nuttal assaulting Thomas. But, counsel submitted, there was a vast difference between knowing or realising that Nuttal was going to assault Thomas and foreseeing that Thomas would be deliberately killed or caused serious injury. That, counsel argued, was totally and utterly beyond anything that could be on Guthrie's mind and he was single-mindedly concentrating on MacKay in any event.

51 Counsel submitted that the proper verdicts in the circumstances were guilty of the murder of MacKay and guilty of the manslaughter of Thomas.

52 In essence, it was argued, Guthrie could be found guilty of manslaughter if the Crown proved that Thomas was killed during the course of an understanding or agreement to assault Thomas in which Guthrie was present and that he foresaw that Thomas might be subjected to an assault constituting an unlawful and dangerous act.

53 Counsel argued that although the jury might find that Guthrie was aware that Nuttal was assaulting Thomas and aided and abetted him in this conduct, they should not conclude that he foresaw that Nuttal possessed the intention of killing him or that the causing of really serious injury to Thomas would occur. Counsel dismissed the Crown argument that Guthrie had good reason to dislike Thomas, submitting that there simply was no foundation for that inference.

54 In relation to the issue of the time of the death of Thomas, it was submitted that the question was not whether he died at the house, but whether Guthrie acted to assist in his killing. The jury could not be satisfied, he argued, that Thomas was still alive when he was placed in the water. Guthrie, he said, in his intoxicated state, may well have wrongly assumed that Thomas was still alive at that stage.

55 Counsel submitted that in testing the reliability of the answers that Guthrie gave to the police when interviewed, regard needed to be had to the circumstances. It was well known that drinking can lead to loss and vagueness of memory. Thus, it was claimed, Guthrie may well have been trying to tell the truth, but was wrong on some matters.

56 Counsel submitted that Guthrie knew he murdered MacKay and it was reasonable to conclude that he remembered that in detail and with considerable clarity. He knew he was involved in the death of Thomas and it was perfectly understandable in the situation that he took on blame for that too but that he may not have been right.

Nuttal

57 Counsel for Nuttal submitted that, although Guthrie and his client were friends, what Guthrie did on that night was very different from anything that Nuttal had previously experienced. Guthrie was dominant in their relationship to the extent that when he had to go anywhere, Nuttal was the driver and when he spoke, Nuttal obeyed. Guthrie, he submitted, was a bully and it was he who had a grievance against MacKay. Guthrie had a motive for violence towards MacKay, and a number of witnesses gave reliable evidence of a savage beating. Thomas, in asking Guthrie to leave the premises and then at Christmas saying that he would never drink with him again, made him a marked man in Guthrie's mind. Counsel emphasised Nuttal's complete lack of involvement in those events. He was not there, it was pointed out, when MacKay was assaulted by Guthrie and there was absolutely no evidence to suggest any form of motive or suggestion of hostility between Nuttal and the two victims.

58 Counsel submitted that Nuttal told police that Guthrie requested that he take him for a drive to go and see someone. The question to be asked at this point, he argued, was whether there was any evidence of any form of agreement to do anything else, answering himself that there was not.

59 With respect to the state of the front door to the premises, counsel submitted that it was clear that the door had been opened with considerable force and referred to Nuttal's record of interview in which he gave the description of a hip and shoulder to the front door. Counsel submitted that Nuttal wandered down the driveway to have a look at what was going on which was consistent with what any reasonable person would do in the circumstances. It was further submitted that there was no reliable evidence that Nuttal went inside the premises.

60 Counsel argued that the Crown's suggestion that this was a "two man job" was wrong as Guthrie was a man on a mission, fired up with hostility particularly towards MacKay and he did not need help.

61 With respect to Nuttal rendering assistance to Guthrie in putting Thomas in the boot out of fear, counsel urged that the manner in which Guthrie behaved on that night was such that any reasonable person would be intimidated, as indeed Nuttal was. His protests and his perception of a threat, before Thomas was placed in the car, were inconsistent with the evidence of some agreement or understanding or an arrangement to kill or to cause really serious bodily injury to either man.

62 As to the drive to the river, it was said that Nuttal drove under Guthrie's direction. Counsel submitted that much had been made by the prosecutor about Nuttal's navigational abilities and how he was able to find the location with ease when he returned with the police. However, in response, he argued that, as the driver, Nuttal was probably more aware of his surroundings and, in any event, there really was not much to finding the location.

63 With respect to common purpose, counsel submitted that it was not apparent, on the evidence, that it was Guthrie's intention to assault McKay until he did precisely that. Counsel submitted that Nuttal did not know what was going on until Guthrie dragged MacKay out of the car and started attacking him. It was further put that, by the time the applicants had arrived at the river bank, all Nuttal had done was assist in putting Thomas in the boot and driven and those actions were undertaken out of fear.

64 Although Nuttal witnessed the assault of MacKay, counsel submitted his mere presence was not enough and that he had done nothing beyond merely being there. With respect to Nuttal's statements when interviewed, counsel argued that what needed to be borne in mind was the stress and strain that he was under when trying to "get his story out".

The Grounds

Grounds 1, 2 and 3 - Nuttal

65 These grounds were argued together and can be appropriately addressed in the same way. Essentially, two propositions were advanced. First, it was contended that, in the particular circumstances and whatever instructions may have been given to the jury, a fair trial of the applicant could not have been had once he was jointly presented with Guthrie. This argument was based upon the claimed inevitable impact of Guthrie's video recorded interview with the police in which he attributed a role and actions to Nuttal that went well beyond Nuttal's own admissions and concerning which there was no evidence admissible in Nuttal's trial. Whilst it was accepted that, of itself, the attribution of a different or greater role to one accused by another in his police interview would not necessarily or even normally require the separation of their trials, counsel submitted that the impact of the particular interview would inevitably have been powerful for more than one reason. In this context, the argument proceeded, it had to be borne in mind that Guthrie described in graphic and compelling detail what had taken place and it was evident his "demeanour was such that he was clearly concerned to give truthful answers to those questions put to him." The members of the Court were requested to view the recording that was played before the jury and invited to conclude that Guthrie would have been regarded by any juror as convincing and honest. His credibility, it was said, would have been further enhanced by reason of the essential conformity of his version with other evidence adduced in the trial. Secondly, the claim was made that, in any event, the instructions that were given to the jury were inadequate in that they did not sufficiently emphasize the care that needed to be taken in the circumstances to ensure that the jury did not rely upon evidence that was inadmissible in Nuttal's trial or be influenced in any way by it.

66 This case is somewhat unusual in that reliance was placed by counsel for the applicant, in support of a claim that there has been a miscarriage of justice, on well entrenched and important principles designed to protect accused persons against the unreliable and inadmissible assertions of co-accused, on the basis that it would be apparent to any observer who viewed the video recording that the co-accused appeared, at least, to be endeavouring to tell the truth. Having viewed the recording, we are by no means convinced that Guthrie was either entirely forthcoming or accurate in his description. It is also clear that he was concerned to attribute to Nuttal what could be described as at least an equal share of responsibility for conduct that, on any version, he had initiated. Such observations, we think, would almost certainly have been made by some of the jurors. Be that as it may, the question remains whether separate trials were required in these circumstances.

67 In response, counsel for the Crown submitted that the exercise of discretion by the trial judge not to order separate trials was unimpeachable. We agree. His Honour directed attention to all relevant principles and considerations enunciated in the authorities.[4] He directed attention to the manner in which the prosecution case advanced against each accused was formulated, the matters which it was submitted on behalf of Nuttal would create special prejudice and whether any possible prejudice or impermissible use of evidence could be addressed by the provision of appropriate instructions. We are unable to detect any error in his Honour's approach to any of these matters and there is nothing in the circumstances that suggests that his exercise of direction may have miscarried.

68 All persons allegedly concerned in the one crime should be dealt with together, particularly if there is no issue as to the presence of all of the accused at the crime scene and where one accused seeks to cast blame on other accused: R. v. Vollmer.[5] The fact that a co-accused is of previous good character and their out of court version is credible and more likely to be accepted by a jury is not of itself a reason to order separate trials: Vollmer.[6]

69 The apparent credibility of an out of court statement based upon a video recorded interview with the co-accused will not usually give rise to the need to order a separate trial. The fact that the co-accused alleges, out of court, that he was coerced by the other so far from being a reason for separating the trials will generally be a reason for adhering to a joint trial regardless of whether the allegation appears credible. It has often been stated that it would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts: R. v. Demirock;[7] R. v. Gibb and McKenzie;[8] Webb v. The Queen.[9] The argument in favour of a joint trial apposite to the present case was again emphasised by Callinan and Heydon, JJ. in Ali v. The Queen:[10]

"The [co accuseds'] relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately. A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged."

70 In a case such as this, in which the prosecution alleges that two accused have participated in a joint enterprise and where one of them is claiming that he acted under the coercion of the other, the conduct of separate trials would in the ordinary course of events be inappropriate, absent the possibility of some overriding prejudice.

71 None of the possible claimed sources of prejudice advanced before the trial judge and in this Court can be seen to justify or require departure from that view. As counsel for the Crown submitted, it was not a case in which any risk existed that the evidence of an eye witness whose credit was in issue would be impermissibly bolstered by Guthrie's statements to the police, nor was it one in which one co-accused was alleging the possession by another of violent propensities. Further, there is force in the Crown submission that there is no reason to suppose the jury must or would have had regard to inadmissible material when reaching its verdict against him, as was asserted before us. There was a deal of admissible evidence upon which a conviction could be properly returned, including his admissions to police and other circumstantial evidence which implicated him. In this context, we note that he admitted that he drove Guthrie to the house, reversed his car into the driveway, assisted in putting Thomas into the boot and then drove Guthrie and the two victims to the river. He said that he was told by Guthrie on the way that "I want to teach these cunts a lesson", and did not seek to flee or drive Thomas away when he saw what Guthrie was doing to MacKay. He assisted in pushing MacKay into the water and in getting Thomas out of the boot, and afterwards continued associating with Guthrie on the night. Together they burned their clothes. Contrary to what he said when interviewed, the jury would have been entitled to find that the applicant did enter the house with Guthrie on the basis of the evidence of the neighbours that they saw no-one in the car when it was parked outside the house, and the arguable implausibility of his account in this respect. The question, for example, would arise, how would Guthrie on his own have managed to overpower both men. If the jury accepted that the applicant did go into the house and was a party to the initial taking of both deceased from the house, that could be reasonably regarded as evidence of his voluntary involvement in what later took place.

72 We do not consider that there is any substance in the complaint that the trial judge's instructions to the jury were deficient. There is no need to set them out in extenso and it is sufficient to state that they were carefully and clearly expressed and appropriate in the circumstances. Notwithstanding the seeming earnestness of Guthrie as he attributed a full measure of responsibility to Nuttal, there is no reason to suppose that the jury may not have complied with the directions given.

73 Accordingly, we consider that these grounds, and therefore, the application, must fail.

The Applications for Leave to Appeal Against Sentence

Guthrie

74 In support of this application, reliance was placed upon two assertions, first that the learned sentencing judge fell into error in the manner in which he approached the applicant's plea of guilty and, secondly, that, in any event, both the individual sentences and the total effective sentence imposed were manifestly excessive in the circumstances.

75 With regard to the first of these claims, attention was drawn to his Honour's statement when imposing sentence:

"In my view, the circumstances involved in the killing of MacKay and in particular, the savagely brutal beating you inflicted on him prior to his death require a differential in the sentences to be imposed for the two murders. The extreme gravity of your conduct outweighs the benefit to which you might otherwise be entitled for your plea of guilty, which benefit must in any event be substantially qualified by the circumstances which I have noted."[11] [Emphasis added]

76 It was acknowledged that his Honour was entitled, when addressing the weight to be given to the entry of a plea of guilty, to have regard to the stage at which the offer to so plead was made and the strength of the Crown case. However, the argument proceeded, this did not involve a process whereby some offsetting of the weight to be attributed to this consideration against aggravating factors would occur, possibly culminating in the cancellation of any benefit otherwise to be derived from pleading guilty.

77 In R. v. Hall[12] where Crockett and Southwell, JJ. stated in relation to an almost identical statement -

"The judge adverted to this aspect at two points of his sentencing remarks. In the first place he said:

'I agree that your plea of guilty and your early intimation of intention to do so and your cooperation with the prosecutorial authorities are mitigating factors. However, by reason of the extent and seriousness of your offending, and of the need to consider the protection of the community, I am satisfied that those matters have only a limited mitigatory affect in your case. They do not, in my judgment, outweigh or exceed the aggravating effect of your prior criminal history.'

Then at the conclusion of his remarks his Honour observed:

'I am satisfied that such mitigatory factors which exist, and go in your favour, are outweighed by the aggravating factor of your many prior convictions.'

An approach to the question of taking account of a plea of guilty which proceeds on the basis that the mitigatory effect of his plea can be 'cancelled out' or 'outweighed by' an aggravating factor is, we think, impermissible. That is what we think his Honour has in plain terms expressed himself as having done.

A plea of guilty is a mitigatory factor. Moreover, it is statutorily stated to be so. See s 4(1) of the Penalties and Sentences Act 1985 (Vic) replaced by s 5(2)(e) of the Sentencing Act 1991 (Vic). The latter provision (which is that now in force) states that:

'In sentencing an offender a court must have regard to -

(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so.'

Both provisions were obviously intended to act as an inducement to an offender to enter a plea, furthermore, an early plea, in return for a lesser penalty than otherwise might have been expected to have been passed: see Morton... . A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the 'eleventh hour' and is made in a case of overwhelming strength may attract no reduction in sentence. But it will not fail to do so because it is cancelled or outweighed by other considerations of an aggravating nature. A plea of guilty is a mitigating factor. It cannot cease to be so because there are aggravating features. A court's attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is to be concerned is what weight should be given to it in the circumstances. It is not a question as to whether the weight it has is to be cancelled out by other factors." [Emphasis added.]"[13]

78 Recently in R .v. Ioane,[14] this Court affirmed the correctness of this view in a case in which a sentencing judge who employed the "strikingly similar" expression:

"These matters[15] do not outweigh the proper weight to be given to considerations of specific and general deterrence in cases such as these".[16]

79 It applies with equal force to the present case. This ground must succeed and the sentencing discretion is therefore re-opened[17].

80 As his Honour found, there is little in the circumstances that could be said in favour of mitigation of penalty in the applicant's case although he allowed the possibility that the consumption of alcohol might be perceived as reducing his level of culpability. However, accepting this view, only limited significance can be attached to this consideration as there is nothing whatever that suggests that the applicant may not have been other than fully aware of the nature of his actions and their consequences at all relevant times. The sentencing judge stated with respect to this aspect -

"While I accept that you had been drinking, it is apparent that you were still capable of instigating and engaging in an extended sequence of calculated, co-ordinated and deliberate acts which resulted in the murder of your victims and continued on for a number of hours thereafter."[18]

Obviously his expressions of remorse, his plea of guilty to the murder of Mackay, the presence of some prospects of his eventual rehabilitation, his unfortunate background, which may well have contributed to his behaviour patterns and social attitudes generally, and his low level of intellectual functioning must be taken into account in his favour.

81 With respect to the personal circumstances of the applicant he was, at the time of sentencing, aged 34 with a long history of alcohol and amphetamine abuse. This would appear to have been related to his unfortunate family background and difficulties coping with the death of his brother which occurred during the applicant's teenage years. As we have mentioned, he was found by the sentencing judge to be of low intelligence and, although he had apparently been involved in a number of incidents over the years, had only one prior conviction. It related to the breach of an intervention order and must be regarded as possessing limited significance for present purposes.

82 On the other hand, the two murders were attended by a number of aggravating circumstances. These were identified by the sentencing judge as follows:

"First, the killings in which you engaged were senseless and unprovoked. No sensible explanation for the fact of such killings or their horrific nature has been advanced to the court. Second, the killings were the culmination of a sequence of deliberate and extended acts on your part on the night in question. Third, from the time your victims were forcibly taken from their beds and placed in the car, they must have suffered extreme terror. Fourth, you initiated the violence at the river and MacKay was subjected by you to a brutal beating of truly savage ferocity and protracted extent. Fifth, Thomas was kept locked in the boot waiting for his execution in horrifying circumstances. Sixth, the drowning of both MacKay and Thomas was done with callous calculated viciousness, totally devoid of any apparent feeling for your victims. Lastly, at the time Thomas was drowned, he was conscious and resisting, as you describe in your record of interview."[19]

83 There can be no doubt that, as his Honour stated:

"The court must also manifest the denunciation by the community of the brutal savagery of your conduct and, in so doing, both punish you to an extent and in a manner which is just in all the circumstances and signals the seriousness of your offences as a deterrent, both to you and to others."[20]

84 Each of the murders committed by the applicant constitutes a very serious example of that inherently dreadful offence, and attributing full weight to the factors that could be seen to operate in his favour, each merits the imposition of a very substantial term of imprisonment. Like His Honour, we consider that, in the circumstances, a distinction should be made between the two offences, particularly bearing in mind that the applicant pleaded guilty to the commission of one of them.

85 In the circumstances, we consider that the appropriate sentences to be imposed on count 1 is one of imprisonment for a term of 24 years and that a term of 22 years' imprisonment should be imposed on count 2.

86 We direct that five years of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1, thus creating a total effective sentence of 29 years in respect of which we fix a non-parole period of 25 years.

87 It follows from the disposition of the application by Guthrie and, particularly, by reason of the need to address the question of parity in the circumstances, the application made by this applicant is also allowed and the sentencing discretion re-opened in his case.

88 On his behalf it was contended that the circumstances required that the individual sentences, the total effective sentence, and the non-parole period fixed should all be significantly less than those imposed upon his co-offender. It was submitted in this regard that -

(a) he did not initiate the violence that ultimately led to the deaths of the two deceased;

(b) he was not the instigator of the murders and acted in the role of "a follower"; and

(c) he did not directly cause the death of either of the deceased.

89 It was also pointed out that the sentencing judge considered that this applicant did "have some prospects of long term rehabilitation".

90 The sentencing judge described the role of Nuttal in the following passage in his sentencing remarks.

"In summary, in the present case, I am satisfied beyond reasonable doubt that you actively assisted in placing Mackay and Thomas in the car and that you drove to the riverbank pursuant to an understanding with Guthrie that you would do so. Thereafter, as you stated in your first summary account to the police, you observed Guthrie bash Mackay and then directly assisted Guthrie to manhandle, drag and place Mackay in the water. At this point in time, Mackay had suffered a fractured skull, fractured arm, fractured ribs, fractured pelvis and fractured leg. He had also suffered multiple abrasions and lacerations. Whether he was unconscious or not, I am satisfied that at this point in time the injuries he had suffered were so manifestly serious that it must have been apparent to you that he would be drowned if he were immersed in the water, and that you directly assisted Guthrie to drag him into the water for the purposes of immersion.

Further, I am satisfied that you did not seek to remove Thomas from the scene, although you had the keys to the car, because you also understood and agreed that Thomas would be removed from the boot and killed. Further, you assisted Guthrie in removing Thomas from the boot by directly lifting and manhandling him, again knowing that he would be killed. Lastly, you did not seek to refrain Guthrie from drowning Thomas because you understood and agreed that he would be killed. Indeed, I observe that no other outcome could be anticipated by someone who had witnessed the bashing and drowning of Mackay by Guthrie in a ferociously savage manner which you describe in your record of interview.

Conversely, I am not satisfied on the balance of probabilities that you were coerced into acting as you did. It may be said that Guthrie was older, more drunk than you, and held a personal grudge against one of your victims, whereas no basis for pre-existing animosity towards either victim has been established in the evidence against you. Further, it is probably that it was Guthrie who initiated the actual violence towards your victims at the house and, more significantly, at the riverbank.

Nevertheless, it seems clear that Guthrie was your friend and that you were more intelligent than he was, less drunk and in control of the car. I am not persuaded that you were other than a willing participant in the joint killing of your victims."

91 With respect to the seriousness of the conduct of the applicant, his Honour stated -

"They were senseless. There was no apparent reason for you to engage with Guthrie in the killings. The killing of each man was the culmination of a series of deliberate and protracted acts. From the time that your victims were taken and placed in the car, it can be inferred that they must have suffered extreme terror. The killings in which you participated were brutal in the extreme. By your own account, the victims were ultimately drowned like animals. It was you who helped put each of them in the river."

Again and, in our view, quite appropriately, he found little in the circumstances that could be said to operate in Nuttal's favour.

92 This applicant was aged 25 at the time of the commission of the offences. His background was unremarkable, except that he had developed recurrent problems with alcohol. However, as in the case of his co-offender, his Honour was satisfied that although he had been drinking prior to the killings he had not done so to excess and knew well what he was doing.

93 His Honour accepted that Nuttal through his co-operation with the investigating police demonstrated some remorse, although he did not regard Nuttal's statements as being full and frank in involving a full acknowledgment of his level of responsibility. Despite this applicant's denial that he became involved as a result of his friendship with Guthrie, his Honour considered that this was likely to have been the case. Finally, the sentencing judge concluded that Nuttal did have some prospects of long term rehabilitation.

94 The appropriate sentence in his case on each of the two counts is, we consider, one of imprisonment for a term of 22 years.

95 We direct that four years of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This creates a total effective sentence of 26 years. We fix a non-parole period of 23 years.

[1] Four further grounds set out in the Full Statement of Grounds were not pursued and need not be addressed.

[2] The following summary has been prepared from the transcript and summary provided to the Court. It does not purport to be comprehensive but is, we think, sufficient to enable the evidentiary background to be understood.

[3] Nuttal told the police that he may have been fishing in the area about a month before these events and later took them to the location.

[4] His Honour referred in this context to R. v. Demirok [1976] V.R. 245; R. v. Grondkowski [1946] K.B. 369; R. v. Gibb and McKenzie [1983] VicRp 78; [1983] 2 V.R. 155; Webb and Hay v. R. [1994] HCA 30; (1994) 181 C.L.R. 41; R. v. Iaria and Panozzo [2004] VSC 110; R. v. Evans, Unreported, VSC, 1 September 1997; and R. v. Jones and Waghorn (1991) 55 A.Crim.R. 159.

[5] [1996] VicRp 9; [1996] 1 V.R. 95 at 102.

[6] At 102.

[7] [1976] VicRp 19; [1976] V.R. 244 at 254.

[8] [1983] VicRp 78; [1983] 2 V.R. 155.

[9] [1994] HCA 30; (1994) 181 C.L.R. 41, 88-89 per Toohey, J. with whom Mason, C.J. and McHugh, J. agreed.

[10] [2005] HCA 8 at [58].

[11] Sentence T1096.

[12] R. v. Hall (1994) 76 A.Crim.R. 454.

[13] R. v. Hall (1994) 76 A.Crim.R. 454 at 469-70.

[14] [2006] VSCA 84.

[15] The plea of guilty and the saving of the costs and ordeal of a trial.

[16] [2006] VSCA 84 at [16].

[17] There is accordingly no need to address the claim of manifest excess.

[18] Sentence T1090.

[19] Sentence T1091.

[20] Sentence T1094.