R v Guthrie & Watt [2003] VSC 323

Supreme Court of Victoria|2003-09-04|Before: REDLICH J

CRIMINAL LAW - Sentence - Attempted murder - Pre-concert - Aiding and abetting -Proof of adverse facts - Whether lesser penalty for aider and abettor.

Craig Anthony Guthrie and Paul Graeme Watt, together with Nicholas Allan Denson each faced a presentment containing a count of attempted murder of Sean Dertilis at Serpentine in the State of Victoria on the 1st day of March 2001 and alternative counts.

Following a trial which commenced on 16 January 2003, a jury on 4 February 2003 found Denson not guilty on all counts and found Guthrie and Watt guilty of attempted murder.

Prior to the commencement of their trial another co-accused, Gerard William Wainwright, was arraigned and pleaded guilty to one count of intentionally causing serious injury to Dertilis. Wainwright was sentenced by his Honour Justice Bongiorno at the Bendigo Sittings of the Supreme Court on 5 September 2002 to be imprisoned for the term of three years, with two years of that term to be served before becoming eligible for parole, this sentence being wholly suspended for three years. Before being sentenced Wainwright gave an undertaking to the court to give evidence at this trial in accordance with his statement of 15 March 2001 and his Records of Interviews of 8 March and 15 March 2001 respectively.

The events relating to the attempted murder of Sean Dertilis at Serpentine on 1 March 2003 began on the evening of 28 February 2003, when the victim, Dertilis, attended at Flat 1, 61 Wade Street, Golden Square. This was the address of Watt and Wainwright. Also present at that address on that night were Guthrie, Nicholas Denson and several other persons.

Some weeks prior to 28 February 2001, Dertilis and Wainwright had been involved in a burglary on a farmhouse north of Serpentine belonging to an associate of Mr Dertilis'. Three firearms were stolen. Early on the evening of 28 February 2001, Gary Martin, the victim of the burglary, contacted Dertilis by phone and informed him that he knew that he (Dertilis) was responsible for the theft. Martin also told him that the police were involved and that the police were in possession of two of the three firearms stolen. Martin told Dertilis that he wanted the third firearm returned. In this telephone conversation, Dertilis confirmed to Martin that he had been involved in the burglary. The details of this conversation between Dertilis and Martin were passed on to Mr Denson, and Mr Guthrie and Mr Watt at the flat.

Wainwright did not arrive at the Wade Street address until about 1.30 to 2.00 o'clock in the morning of 1 March 2001. On his return he found Dertilis, Denson, Watt and Guthrie all there. On his arrival, Wainwright spoke with Dertilis outside the flat. Dertilis told him that he had spoken with Gary Martin about the burglary and that he had told the others about it. In this conversation, Dertilis told Wainwright that he was going to go to Adelaide to "get out of town".[1]

Whilst this conversation between Dertilis and Wainwright was taking place, Denson, Guthrie and Watt came outside. Dertilis was asked to go back inside the flat and a discussion ensued in Guthrie and Watt's presence, largely between Denson and Wainwright, as to how to deal with Dertilis. It was feared that when the police would speak to Dertilis about the burglary he would tell them that Wainwright was involved. The idea of shooting Dertilis was first discussed, and then it was resolved to give Dertilis a "hot-shot". A "deal" of amphetamine was being provided to Dertilis, at Dertilis' own request, by Wainwright. There is some uncertainty as to whether Mr Watt was present for the entire conversation.

Sometime around daylight on 1 March 2001, Mr Watt and Guthrie together with Dertilis and Wainwright left Wade Street in Wainwright's red 1976 Ford sedan. Denson remained behind. They travelled towards Serpentine in order to go fishing for the day. Dertilis was told he would then be taken to Horsham before being picked up to go to Adelaide.[2] The amphetamine, together with needles, spoons, syringes wrapped in a paper towel, had been placed in console of Wainwright's vehicle prior to the group leaving. The "parcel" had been passed to Wainwright by either Denson or Guthrie when they were about to leave the flat. Wainwright believed that the amphetamine had been mixed with other substances, so that it would kill Dertilis when he injected himself.

With Wainwright driving, they travelled towards Serpentine via Eaglehawk eventually turning off into Long's Road where they stopped for a while. Mr Guthrie tried to get Dertilis "to have a taste"[3] of the amphetamine. They then drove on, stopping a little further down the road, at a spot near a bridge. They all got out of the car and walked over to the creek. Wainwright then returned to the car to collect the fishing gear. On walking back towards the creek, he was signalled to by Guthrie to 'get down'.[4] Both Mr Watt and Mr Guthrie were crouched down or lying in a ditch watching Dertilis. Guthrie, Watt and Wainwright walked over to Dertilis. Wainwright saw Dertilis with the syringe, water and spoon spread out in front of him. Mr Guthrie had gloves on at this stage and accused Dertilis of squirting the "shot" on the ground. Mr Guthrie grabbed Dertilis around the neck and Dertilis then injected himself.

Mr Guthrie then told Wainwright to go and get some acid from the car battery. Wainwright went over to the car and withdrew some water from the battery with a syringe. On returning, Wainwright passed the syringe to Guthrie, who in turn, handed the syringe to Dertilis who then injected himself. Mr Guthrie were standing in front of and close to Dertilis with a knife in his hand.[5] Wainwright was then asked by Guthrie to fill another syringe which he handed to Dertilis who then injected himself again. At this time, Mr Guthrie still had the knife in his hand. Mr Watt was "just standing"[6] close by.

Wainwright then repeated the process for a third time, on this occasion filling two syringes with the battery fluid. The syringes having been placed in front of Dertilis, Guthrie then injected both fluid filled syringes into Dertilis' arm.

A car then came down the road. They all returned with Dertilis to Wainwright's car and with Wainwright driving headed towards the main road. They drove down another dirt road past a large piggery where the car stopped. Mr Guthrie told Dertilis to get out and they all alighted. Mr Guthrie still had possession of the knife. Mr Guthrie grabbed hold of Dertilis, pushed him to the ground and said he would slit Dertilis' throat[7] and Guthrie called on Mr Watt and Mr Wainwright to help him. Wainwright said no, he would not do it. Mr Guthrie got annoyed and told Wainwright to take the knife. Wainwright took possession of the knife and he and Dertilis drove off, leaving Guthrie and Watt behind.

Wainwright and Dertilis later returned to the piggery road to collect Watt and Guthrie but they had both just hitched a lift in a truck. When they saw Wainwright return they both alighted from the truck and rejoined Wainwright and Dertilis in Wainwright's car and drove to Bridgewater where they left Dertilis with an associate.

Dertilis stayed at Bridgewater overnight, proceeding on foot the next day to the Inglewood police station where he reported the incident, stating however that he did not want anything to be done "officially". Dertilis was taken to hospital for treatment, but left before being properly treated. An official report of the incident was made to police by Dertilis on 8 March 2001 at which time he was also medically treated and was observed to have some inflammation and a number of thrombosed veins in his right arm consistent with the injection of battery acid.

Following the making of this official complaint to the police, Guthrie and Watt were both interviewed and made "no comment". They were charged with the attempted murder of Sean Dertilis. Denson was also interviewed and denied any involvement in the planning of the offences, but admitted that that he had spoken with Gary Martin and had tried to organise for Sean Dertilis to leave Bendigo. Wainwright admitted to police that he was involved in a plan to administer a "hot shot" to Dertilis.

In reaching its verdict the jury was obviously satisfied that the events at the fishing hole substantially occurred as Wainwright described them. Mr Guthrie denied he was at the flat or fishing hole. Wainwright's account of what occurred at the fishing hole was unchallenged by Mr Watt at the trial who did not take issue with Wainwright's description of what Guthrie or Watt did. Mr Dertilis who was called as a witness by the Crown claimed to have no memory of the events.

The jury as it was entitled to be, was probably satisfied that Mr Guthrie and Mr Watt were party to a plan agreed upon at the flat and conceived by Denson and Wainwright to take Dertilis to a quiet spot where he would self-inject a "hot shot" of amphetamine which was to be given to him. I think it likely that Denson was acquitted because of the absence of corroboration of Wainwright as to Denson's role. Mr Jackson, in the course of his plea on behalf of Mr Guthrie made what I regard as a proper concession that the events which occurred at the river bank were the consequence of the earlier discussions at the flat. No evidence emerged suggesting that there was any conversation after the commencement of the trip to the fishing hole which might explain what occurred in the car, at the fishing hole or on the piggery road. Mr Guthrie acted as he did because of what had been determined in discussions at the flat and before they departed on the trip and the probabilities are that Mr Watt was also privy to the plan.

It was Wainwright's evidence that in planning to kill Dertilis, he and Denson had been motivated by a concern that Dertilis, if spoken to by police, would reveal Wainwright's name. The evidence suggests that Wainwright, Denson, Guthrie and Watt became aware on 28 February that Mr Martin had been told, whether by Dertilis or his sister, that Wainwright was one of the burglars. I regard it as likely that there were other factors associated with Wainwright's drug trafficking, which accompanied the decision to kill Dertilis. The evidence is insufficient to enable me to make a finding as to any other motive which might be used adversely against Mr Guthrie or Mr Watt. See Weininger v R[8]; R v Olbrich[9]; R v Storey.[10] The evidence does not in any event suggest that either Mr Guthrie or Mr Watt contributed to the discussions between Denson and Wainwright in which it was planned to kill Dertilis.

Mr Guthrie's counsel on the plea properly conceded that he had played a leading role in the acts which constituted the attempted murder. As I have just observed he did not actively participate in formulating the plan at the flat to kill Dertilis. That appears to have been the idea of others, but he agreed to put the plan into effect despite the fact, as his counsel submitted, he was not a close personal friend of any of the other people present at the flat.

The learned prosecutor did not take issue with Mr Guthrie's counsel's submission that I should treat him on the basis that he was significantly affected by alcohol at the time of these offences. The learned prosecutor submitted however that I should liken his conduct to that of a contract killer because there was no history of animus between him and Dertilis. I was invited to conclude that he must have been "prevailed upon or hired" to act at the "behest of another person" to kill Mr Dertilis. Although he remained in the company of Denson during the course of the evening of 28 February 2001 the circumstances in which he came to be there and the nature of his association with the various persons present at the flat is largely unknown. In accordance with the legal principles to which I have already referred, the Crown is required to prove such an allegation beyond reasonable doubt it being what the prosecutor contended was an aggravating feature. I am not satisfied that the evidence can sustain such a hypothesis and I will not act on it.

I must, as the learned prosecutor submits, take into account Mr Guthrie's conduct in initially forcing Dertilis to inject himself with what he believed to be a "hot shot". When that did not appear to work he forced Dertilis to repeatedly inject himself with battery acid and then he injected him himself. This desire to kill Mr Dertilis was further manifested by his conduct on the piggery road. It was a course of conduct which he followed in pursuit of the plan agreed upon at the flat.

I turn to the contention made on behalf of Mr Watt that he was not party to any plan to kill Mr Dertilis but acted as he did at the fishing hole in response to events which unexpectedly unfolded. I am not satisfied that the evidence supports such a conclusion. The Crown case which it was open to the jury to accept was that Mr Watt participated in the planning of Mr Dertilis' killing. I think it likely that the jury accepted that Mr Watt was aware prior to the fishing trip that it was the intention of Denson, Guthrie and Wainwright to kill Mr Dertilis by means of a "hot shot" during the fishing trip. Contrary to the manner in which the Crown case was left to the jury, the learned prosecutor mistakenly conceded on the plea that it was probably not open to me to be satisfied to the requisite standard that Mr Watt should be dealt with on the basis of pre-concert as opposed to aiding and abetting.[11] A fortiori if it was not open to me, it was not open to the jury, and the jury could not have been invited by the Crown to find Mr Watt guilty as having acted in concert.

As I observed during the course of Mr Shwartz's submission, the accomplice, Wainwright, gave differing and inconsistent testimony as to the presence of Mr Watt at various times during the discussions at the flat when the plan to kill Dertilis was discussed. I formed the impression during Wainwright's cross-examination that he was seeking to assist Mr Watt when referring to Mr Watt's departure during the discussions about what should be done to Mr Dertilis. It was certainly open to the jury to be satisfied beyond reasonable doubt that Watt was aware of and party to the plan before they embarked on the trip. Forming my own view about this, while I think it was highly probable that Mr Watt had some knowledge of the plan to kill Dertilis before setting out on the fishing trip, there remains a reasonable possibility to my mind that Mr Watt only became aware of the plan to kill Dertilis during the course of the trip or on arrival at the fishing hole. I am not therefore prepared to make an adverse finding against Mr Watt in this regard; but the absence of persuasion about a fact in aggravation is not the equivalent of the opposite fact in mitigation. Weininger v R. The defence have not satisfied me on the balance of probabilities that Mr Watt did not know of the plan to kill Dertilis before embarking upon the journey to the fishing hole so it is not something I can take into account in his favour. Weininger v R. I intend to sentence Mr Watt on the basis that I am unable to make a determination of whether Mr Watt was aware of a plan to kill Dertilis before arriving at the fishing hole.

Wainwright was not challenged by Mr Watt as to his description of what occurred at the fishing hole. Of particular significance to Mr Watt's state of mind was Wainwright's description of how Watt and Guthrie were crouching or lying down in a ditch with Mr Guthrie signalling to him to keep low at the time that Dertilis was about to inject himself with the "hot shot". I am satisfied that by this point of time, at the very latest, Mr Watt was aware of the plan to kill Dertilis by use of the "hot shot".

During the events which occurred at the fishing hole Mr Watt being aware of what was intended, encouraged Guthrie and Wainwright. Before leaving the fishing hole Mr Watt collected some of the debris which had been left behind and when the car was stopped on the piggery road Mr Guthrie called upon Mr Watt and Wainwright to hold Mr Dertilis down. Mr Watt subsequently got out of the car with Mr Guthrie allowing Wainwright and Dertilis to drive away. The Crown relied upon Mr Watt's post-offence conduct in speaking to Mr McCrudden and in writing the letters as demonstrating his involvement in the crime.

Wainwright's observations of Mr Watt crouching or lying in the hollow in the company of Guthrie whilst Dertilis was injecting himself indicates his complicity, at least from that time onwards in what was to happen to Mr Dertilis.

When Mr Shwartz, who appeared for Mr Watt, sought on the plea to produce Mr Joblin's report dated 3 April 2003 (Exhibit Z) the learned prosecutor took objection to the final paragraph under the heading "offences" which appears at page 4. That paragraph read:

"This man reported that any suggestion of participation in the offences for which he appeared before court is based on his awareness that he was in some difficulty because he believed that the others were violent and aggressive and that he believed that they knew that Mr Watt had knowledge of what they were going to do. As a result, he believed that he could easily be harmed. Under those conditions, he reported a significant degree of coercion, or at least psychological coercion." (my emphasis)

Mr Kayser submitted that this paragraph was inadmissible and he described it as "self-serving hearsay". He also submitted that the assertions were inconsistent with the jury's verdict. Far from damaging the Crown's position, the passage objected to revealed, if it was true, that Mr Watt knew of the plan. Be that as it may, once objection is taken by the learned prosecutor to a fact asserted in such a report, the court cannot act upon such a fact unless it is established in accordance with the rules of evidence.

The information which Mr Watt provided to Mr Joblin is not inconsistent with the jury's verdict. It does not constitute duress in law.[12] Mr Watt does not suggest that he was threatened. He told Mr Joblin what he thought as to what might happen if he did not participate or expressed opposition to what was planned. Counsel for Mr Watt, quite sensibly if I may say so, determined that he would not call Mr Watt to establish that Mr Watt's state of mind at the time of the offence was as he described to Mr Joblin. That state of mind, if established by evidence, would only serve to undermine the submission that he was not party to any pre-concert to kill Mr Dertilis. In light of the learned prosecutor's objection and the decision not to call any evidence to prove the assertion the subject of objection, I will not take that passage of Mr Joblin's report into account. Mr Joblin's opinion must therefore be qualified, to the extent that it is based upon a fact which has not been established by evidence.

Mr Watt may have been convicted, as the Crown invited the jury to do, on the basis that he acted in concert with Mr Guthrie. Nevertheless Mr Shwartz submitted that I should view Mr Watt's involvement as one who was not acting in pursuance of a plan, but rather as one whose conduct amounted to no more than the minimum necessary to render him liable as an aider and abettor. He submitted that Mr Watt was at the very bottom rung of complicity and culpability.

During the plea Mr Shwartz on a number of occasions described Mr Watt's conduct as one of "mere presence."[13] Even if the jury had convicted Mr Watt as an aider and abettor more than presence was required as the jury was directed. One who aids and abets is linked in purpose with the person actually committing the crime and is by word or conduct doing something to bring about or render more likely the crime's commission. See R v Russell[14]; R v Lowry and King (No. 2).[15] Mere passive presence does not constitute criminal conduct. See R v Coney[16]; R v Allan[17]; R v Clarkson[18]; Roughley, Marshall & Haywood v R[19]; Giorgianni v R.[20]

Must an aider and abettor receive a lesser sentence

At times during the plea on behalf of Mr Watt it was suggested that an aider and abettor who, by their presence and conduct, encourages the commission of the crime must be less culpable than the principal offender and must attract a lower sentence. As the Court of Appeal observed in the recent decision of the DPP v SJK and DPP v GAS[21], the notion that an aider and abettor should receive a lesser penalty than the principal in the first degree is one which must be approached with considerable circumspection. The circumstances of a particular case may justify regarding an aider and abettor as equally culpable with and sometimes even more culpable than the principal. See DDP v SJK; R v Arkan and Andrakakos[22]; R v Tran[23]; R v Goundar[24]; and Regina v Anderson.[25] The level of culpability of a principal in the first degree and an aider and abettor is to be determined by reference to the circumstances of the case and not by reference to primary or accessorial liability.

I am unpersuaded as to precisely when Mr Watt first became aware of the plan to kill Dertilis. I am satisfied that he was aware of the plan to kill Mr Dertilis at the time he crouched down in the ditch and observed Dertilis self-administering the "hot shot."

I now turn to the personal circumstances of Mr Guthrie and Mr Watt.

I was invited by your counsel to find that on the day that these events occurred you were substantially affected by alcohol. You have a long history of alcohol abuse having commenced to consume alcohol at the age of 15. At the time these offences were committed you were consuming 36 cans of beer and a bottle of rum per day and had been doing so for some time. You had also been smoking an average of a gram of cannabis a day. On the basis of your counsel's submission and the psychiatric report which has been tendered, I accept that at the time of the commission of this offence you were probably intoxicated and that this has been your daily pattern for many years. You informed the consultant psychiatrist who saw you on 16 April 2003 that your long term pattern of alcohol abuse has been accompanied by alcoholic blackouts. You suggested that you may have been in the midst of a blackout around the time that this offence was committed yet contradictorily, continue to assert that you were not involved at all.

You are 31 years of age. You have 23 convictions from 13 court appearances, the first conviction being for recklessly causing injury when you were only 18 years of age. In 1999 you were again convicted of recklessly causing serious injury and a six month term of imprisonment was wholly suspended for 24 months. The effects of your alcohol abuse are reflected in those prior convictions most of which could not be regarded as particularly serious. You have been given fines, community based dispositions and a number of suspended sentences but you have never been required to serve a gaol sentence before. As the pre-sentence and psychiatric reports reveal, you acknowledged that you were affected by alcohol on most of the occasions that you have previously committed criminal offences and in relation to the more serious of those offences involving violence you informed Dr Walton that you simply had no recollection of those incidents and you were unable to provide your counsel with instructions about those prior convictions. I accept that your lack of recollection about those circumstances is symptomatic of the level of alcohol abuse to which you were subjecting yourself during those periods of time. You indicated to Dr Walton that when you are "off the drink" you are a different person and that when you have been drinking you are inclined to fire up quickly.

On 31 March 2001 you were arrested and you were remanded in custody on the charge on which you have been convicted. On 8 August 2001 following the committal hearing you were granted bail with a surety of $10,000. As you were unable to raise the surety or part thereof you remained in custody until 24 April 2002 when his Honour Mr Justice Gillard lifted the condition requiring a surety. You remained on bail for the following nine months until convicted on this offence. During that time you did not offend against the law and lived with your partner and daughter holding down a job that I am told you thoroughly enjoyed and to which you would like to return. It is not without significance that the conditions upon which you were admitted to bail included a prohibition on you attending any hotel and a curfew which required you to remain at your place of residence between the hours of 10.00 pm and 7.00 am.

You have been in a defacto relationship for the past nine years with Ms Tracey Atkinson who is the mother of your five year old daughter. Ms Atkinson is presently expecting another child of your relationship. Prior to your incarceration and during the period of time that you were on bail you were supporting Ms Atkinson both financially and emotionally and it is a relationship to which you are anxious to return.

You were born in Echuca in 1971 and came from a large family having seven brothers and seven sisters. Your father died in 1999 and your mother suffers from dementia and Alzheimer's disease and is currently living in an aged care home in Kyabram. Prior to being in custody you were actively involved in caring for her.

When being interviewed for the purposes of a pre-sentence report you said that all your brothers have had problems with alcohol and as a result have been involved in the criminal justice system, all of them having served terms of imprisonment.

You attended school in Shepparton leaving high school upon completion of Year 9. You have not learnt to read or write and your numeracy skills are quite deficient. The assessment within your psychiatric report suggests that you are borderline between the lowest limits of normal intelligence and formal intellectual disability. You recognise that you have no prospects of advancement by the completion of further educational studies. Despite these serious limitations you have had numerous jobs since leaving school including share farming, sub-contracting work for a plastering company and labouring with an electrical company and with the City Council maintaining roads and building playgrounds. Your last employment before you were convicted on this offence was a tractor driver at Pyramid Hill whilst on bail. You have been advised that once you are released you will be able to return to this position.

The reports with which I have been provided indicate that you are experiencing a level of depression within the prison system. You suffer from insomnia and remain anxious about your position. Since you have been in custody you have been experiencing problems concentrating and in making decision. It appears that you may have been suffering from some level of paranoia for over 10 years but you have displayed a general reluctance to be assessed or assisted by any sort of professional counselling. Since you have been moved to Port Phillip Prison following your conviction, you have been involved in one on one counselling concerning your alcohol and drug abuse and it is clearly most important that you continue with such counselling and avail yourself of any other professional assistance within the prison system that is likely to assist you in addressing your inclination to drug and alcohol abuse.

Mr Guthrie, there are a number of features of your personal circumstances which justify the view that you have good prospects for rehabilitation - particularly as you demonstrated during your period on bail that you had the capacity to control your alcohol consumption and did not offend against the law. In the course of consultations for the purpose of preparation of the pre-sentence and psychiatric reports you continued to maintain that you were not party to the events concerning Mr Dertilis on 1 March 2002 despite the weight of evidence that said otherwise. It may be that you do not remember what occurred on this day because of alcoholic amnesia but, as your counsel explained on the plea, it is not your claim that you do not remember but rather that you were not there and did not participate in any attempt to murder Mr Dertilis. Whatever the explanation for your state of mind, I must treat you as having shown no remorse which would have, if it were present, resulted in some discount of the sentence which I should impose.

You were born on 2 April 1976 being 27 years of age. You had a turbulent and disrupted childhood. You have two brothers and a sister and an adopted sister. Your father was an alcoholic and your elder brother physically abused you. Your parents separated when you were 13 years of age and by then you had attended four primary schools, three in Werribee and one at Colac before attending the Colac Secondary College. After your parents' separation your mother briefly placed you in care at the Mercy Family Care in Geelong. Although this was for only a short time it left an indelible impression on you. At age 14 you ceased school and commenced work on a casual basis on several fishing boats as a "fish thrower". Although you enjoyed this work you resolved to return to school continuing until Year 10 when you left and joined the workforce for a short period. During your teenage years your mother had a number of relationships with other men none of whom appears to have been particularly supportive towards you. According to Mr Joblin who interviewed you at both the Melbourne Assessment Prison and at Port Phillip Prison you were experiencing serious psychological problems by the time you were 15 years of age. It was at this time that you and your elder brother were compelled to leave your mother's home. Thereafter you lived intermittently with your mother and also "on the streets". You followed your mother who moved to Perth with her defacto, that relationship ending as a consequence of some sexual relationship between your step-father and sister. The family then returned to Melbourne where you initially lived in Glen Waverley.

You have 126 prior convictions from 14 Court appearances. It appears that the prior convictions in 1992 arose as a consequence of your attempts to get to Perth to be with your mother. Before your 17th birthday, you had already accumulated 12 prior convictions in the Children's Court which is ample demonstration that as a young person you were experiencing great difficulty in coping with life and were probably not receiving the level of support that someone of that age required.

Your mother and her defacto moved to the Bendigo area and by the time you were aged 19 you were intermittently living either with your mother, your younger sister with whom you are close or your friends in the Bendigo area. You had been a cannabis user since you were 15 and by the time you moved to Bendigo you were a regular user of heroin and amphetamines. You committed criminal offences to feed your habit which resulted in your detention at a youth training centre for six months in 1995. Whilst serving that sentence at Malmsbury, it appears that you were involved in a fight and as a consequence were convicted of recklessly causing serious injury, this being your only conviction for violence. Following your release you returned to Bendigo and continued to use heroin and amphetamines. It was then that you met Kylie Burns and commenced a relationship with her that lasted some two years including a period of time that you served in custody. You have one daughter from that relationship, Jasmine, who is now aged 7, and you have assumed responsibility for a child of Ms Burns from a previous relationship, a girl now aged 8. Both children are now in the custody of your mother. I accept that those children form a very important part of your life and it is your continuing wish to be responsible for them. Ms Burns, it appears, is unable or unwilling to assume further responsibility for them and custody proceedings are pending between Ms Burns' family and your mother and yourself as to where the children should be placed.

It was whilst you were in Bendigo that you met Wainwright and became his friend. It was also during this period that you committed a substantial number of burglaries, breaking into Coca Cola machines and as a result you have a substantial number of prior convictions recorded against you which resulted in you being incarcerated for some two years. These burglaries were again committed to enable you to feed your drug habits. Largely as a consequence of your incarceration your relationship with Ms Burns ended.

Despite your incarceration in 1996 for criminal offences committed to feed your habit, and though you ceased any significant use of heroin following your release in 1998, you became a substantial amphetamine user and acknowledged to Mr Joblin that at times you would hallucinate or have paranoid or persecutory delusions. You experienced great difficulty in coping with every day life and whilst in an irrational state of mind threatened to kill your mother as a result of which she took out an intervention order against you. This explains your last prior conviction in March 2000. You also attempted to commit suicide by hanging yourself. After serving a four month prison sentence you were released and lived with your sister and her family in Yarram in Gippsland until you returned to Bendigo and resumed using amphetamines. You again took up with your friend Wainwright who was buying and selling amphetamines in the Bendigo area. He was the source of your amphetamine supply and you also sold some amphetamines to provide financial support. You commenced to live with Wainwright and your drug dependency consumed your life. I accept that on the night preceding the commission of the offence which now brings you before this Court you had been using amphetamines and had smoked cannabis. Your counsel informed me that you knew Dertilis reasonably well and that you were close friends within a drug setting as you were both heavy users.

After you were charged with the present offence in March 2001, you remained in custody until April 2002 as you were unable to satisfy the condition of bail requiring a surety. You obtained bail on 30 April 2002. Following your release you first went to live with your brother in Leitchville and worked on a farm reporting to police in Cohuna. Your mother has for some time now been in a new relationship with a man who has offered you some support and whom you respect. A reference from him was tendered on your behalf.

Whilst on bail you remained in gainful employ first working on a farm and then moving to Melbourne to live with your sister in Noble Park where you worked in a factory making truck brakes. Your mother, defacto and two daughters now live on a farm at Gunbower and work, which you would like to undertake, is available to you as a farm hand on your release.

During the period you were on bail you formed a friendship with a young woman, Leigh Hunt and you have a strong attachment to her and wish to pursue that relationship upon your release.

It is evident from the foregoing that you were born in an environment that was dysfunctional and that you sustained serious psychological damage and you display signs of a personality disorder reflecting institutionalised attitudes and values which you have shown great difficulty in relinquishing. In the past you have shown a tendency to associate with those who reflect similar values and have a common interest in drug use. You are of reasonable intelligence and I accept that you are at an age and have sufficient incentives to rehabilitate yourself. Both reports which have been tendered on your behalf demonstrate that you will not succeed in your endeavours without the benefit of supervision and monitoring and, to the extent that it is available, intensive pre-release assistance. If you are to avoid further conflict with the law, it is essential that you recognise that you have psychological difficulties which must be addressed and that you need assistance from others to enable you to do so.

Mr Guthrie, in pronouncing sentence I have regard to the fact that you have been convicted of a very serious crime involving as it does an intention to kill. Only good fortune and some foolishness on your part stands between you and a conviction for murder. In imposing the sentence that I do, I am bound to reflect the Court's denunciation of such conduct. Though Mr Dertilis remained unco-operative with the prosecuting authorities and would not testify as to what you had done to him the sanctity of human life and its importance must be recognised in the sentence I pronounce. The motive for your conduct remains obscure as you have continued to deny any involvement in the offence and no evidence has emerged as to the nature of your relationship with Denson or Wainwright. I take into account the various matters that have been put forward on your behalf that suggests you have reasonable prospects for rehabilitation and a network of support. I cannot ignore the fact that you played a dominant and persistent role in attempting to kill Mr Dertilis pursuant to a plan to which you were a party. Whilst you may have been affected by your prolonged consumption of alcohol, you were bent upon a path that was intended to achieve the death of Mr Dertilis. Taking all of the circumstances surrounding the offence into account and all of your personal circumstances, I consider it appropriate, as your counsel submitted, to impose a minimum sentence which will permit a longer term of supervision during which time any consumption of alcohol should be strictly monitored.

Mr Guthrie, I have concluded that the appropriate sentence is that you be imprisoned for seven and a half years and I fix a minimum period of four and a half years before you become eligible for parole. You have been in custody since 3 February 2003 in relation to this offence and you were also in custody for 390 days before obtaining bail so that you have served 603 days in pre-sentence detention. Pursuant to s.18(4) of the Sentencing Act 1991 I declare the period of 603 days as already having been served under the sentence I have imposed and I so certify.

Mr Watt I shall not repeat what I have already said about the seriousness of the offence with which you have been convicted. You played a lesser role than Mr Guthrie although you were aware at the very latest by the time Mr Dertilis was self-administering the amphetamine that it was a "hot shot" that was anticipated would kill him. You allegiance to Wainwright, no doubt borne in part by the fact that he was your source of amphetamines, and your complicity in the course that Wainwright and Guthrie were bent upon in taking human life, in your case the life of a friend, constitutes a criminal offence of a serious kind. You, like Mr Guthrie, have shown no remorse for your conduct having maintained that you had no responsibility for what was planned or done to Mr Dertilis. Your post-offence conduct, and in particular the letters that you wrote and which were tendered in evidence by the Crown during the trial demonstrate your recognition of the criminal conduct involved and provide some insight as to how you viewed the events of that day. The letter confirms Mr Joblin's view that you were living your life according to the values of a criminal code followed by those with whom you associated. I have regard to all of the personal circumstances which have been placed before me including your letter which reflects the tragedy of your life to date. I accept that you have reasonable prospects for rehabilitation but that your drug dependency and psychological problems will not be overcome without long term supervision and assistance after your release. It would be in your interests to submit yourself to such pre-release counselling as can be made available.

Mr Watt, I have concluded that the appropriate sentence is that you be imprisoned for six and a half years and I fix a minimum period of three and a half years before you become eligible for parole. You have been in custody since the jury's verdict on 3 February 2003 and you were also in custody for 234 days in relation to this offence before obtaining bail so that you have served 447 days in pre-sentence detention. Pursuant to s.18(4) of the Sentencing Act 1991 I declare the period of 447 days as already having been served under the sentence I shall impose and I so certify.

[1] See Trial Transcript, page 86, line 22.

[2] See Trial Transcript, page 93, lines 2-5 and 8-11.

[3] See Trial Transcript, page 97, line 10.

[4] See Trial Transcript, page 100, lines 14-15.

[5] See Trial Transcript, page 103, lines 14-15.

[6] See Trial Transcript, page 105, lines 8-9.

[7] See Trial Transcript, page 108 lines 14-18.