R v Holden [2007] VSC 417

3 The Crown accept that the killing took place in circumstances where there was a dispute in relation to the state of a cannabis plant or plants and that Lee Torney struck you, initially, with a shovel, as I understand it, in the leg area. You then wrested the shovel off him and struck him a number of times, particularly to the head. The evidence from the pathologist and the anthropologist was that there were at least three applications of force to the cranium of Lee Torney and possibly more, but, due to the state of decomposition of the body, it is not possible to say exactly how many. You have then tied the body of Lee Torney to the back of your vehicle and dragged it some distance to a mine shaft at the rear of your property. The body has been placed down that mine shaft and various pieces of rubble and material placed on top of it. That was on 16 April 2005.

4 The police clearly suspected that you were responsible for what, at that stage, was considered the disappearance of Lee Torney. You contributed to the disappearance theory with various reports that you made to different people about what Torney had told you about going bush or disappearing. You indicated to people that he had told you things about disappearing.

5 You made a formal statement to the police in August 2005, in which you stated that you believed that Lee Torney's disappearance was related to his connections to the underworld figure Carl Williams and that he had gone into hiding, out of fear. You also, at a later stage, intimated, or even went so far as stating, that if he was dead, the police should be investigating his, by then dead brother, Mick.

6 The discovery of the body came about as a result of a legal listening device that the police had placed in your home. On 2 and 6 March 2006, you were heard having discussions with a Robert Adams that indicated you had disposed of Torney's body down a mine shaft. On the next day, 7 March 2006, the police recovered the body of Lee Torney.

7 You initially conducted your trial on the basis that you were acting in self-defence. Lee Torney was a convicted murderer who had been sentenced to life imprisonment. He was subsequently given a minimum term after a change of the law and he could be described, as a life-long criminal.

8 The plea was accepted on the basis that Torney struck you first with a shovel and that your fear of him was such that when you obtained the shovel from him you killed him, in terms of an excessive self-defence, or as your counsel put it during the plea: "You don't just knock a person like Lee Torney to the ground, you make sure he stays there".

9 Lee Torney was living with his mother, who was unwell, in Alphington. He had a child, with whom he had some contact, though that contact, clearly, would have been absent for a long period of time, whilst his father was in prison. His brother Mick and nephew also lived in the area. There is no doubt that Lee Torney had some serious underworld connections, in that he introduced a now protected witness to Carl Williams and that person went on to become involved in some of the gangland killings. Torney had spent a large proportion of his life in prison and it is not surprising that he knew a large number of people involved in the criminal underworld. That does not make his life worth less than any other person's. He is equally entitled to protection under the law. It does not give you, or any other person, the right to kill him. Whilst I accept that you had some fear in relation to Lee Torney, I do not accept that it was at the level that had been indicated by some of the witnesses during this trial or the plea.

10 I have received a victim impact statement from the son of Lee Torney. He also makes the point in that statement that the Court may not see his father's death as important because of his criminal history. As I have already indicated, every person's life is of value in our society and is treated as such. The relevance of his father's prior criminal history is in attempting to understand the fear in which you may have been placed during your dealings with Lee Torney. I accept that he has lost the pleasure of the company of his father, as has his child. Every person has different parts they show to the people in their lives and it appears that the part he showed to his son was a gentle and caring side. I will take that into account in the balancing exercise, which is involved in the imposition of an appropriate sentence, but, equally, his son needs to understand that you have been convicted of manslaughter and not the crime of wilful murder and the penalty will, equally, reflect that.

11 I also have to take into account your personal circumstances. You are now aged 42, having been born on 11 March 1965. You are one of eight children and your father is deceased. It wasn't an entirely happy marriage, your father being largely absent, when you were younger. He was, in terms of working, involved in shooting and woodcutting. When he was home, he was described as a violent man, predominantly with the violence directed towards your mother. You, also, were a victim of the abuse and suffered beatings from your father and, unsurprisingly, did not have a very good relationship with him. Your mother worked as a state enrolled nurse, at the Mt Alexander Hospital in the Castlemaine area. I must say, it was heartening to see that the majority of your siblings were present in court to support you. You are the sixth eldest child. Your immediately older brother, Tony, was diagnosed with leukaemia, when you were about 11 or 12 years of age. He died after a 2-year long battle with that disease. Shortly after that, your father separated from your mother. Your mother was admitted to hospital not long after that suffering from depression, which has been a recurring problem for her, from that time. When you were 19 years of age, your father committed suicide in what was described as a siege-type situation. It was a fairly public suicide. I was informed by your counsel that you were, despite being alienated from your father, still deeply upset by the suicide. You have a number of nieces and nephews and some of those, too, were present in court to support you, as were various members of the local community.

12 You have a prior conviction for cannabis use and have been a cannabis user since you were about twenty years of age.

13 You attended Castlemaine Technical College completing Year 10, almost immediately going into an apprenticeship as a fitter and turner. You did that at the woollen mills. You completed that apprenticeship, but, immediately upon completion, you left the job and got work with a man called, Michael Mellican. He gave evidence on your behalf during the plea. Although you didn't complete an apprenticeship with him, you worked with him in the carpentry building area for a period of approximately 15 years. It was submitted that you had worked virtually all of your life until you became involved with Lee Torney and that is when things started to alter and deteriorate for you.

14 You have had two main relationships in your life, first with a woman by the name of Donna McMahon whom you met in your late 20s and with whom you commenced a de facto relationship. You purchased a house together and the relationship lasted between eight and nine years. You had a son together, named Jackson, born in 1997. You no longer have any contact with your son, one of the reasons being that you lost contact with him when you became involved in your subsequent relationship, and moved to New South Wales with that partner, Ms Joanna Walton. That relationship lasted approximately six years. She also provided a written reference for you, indicating that she still considers herself a part of your life. After you separated, you moved back to Chewton and began work as a sub-contractor. It was through your sub-contracting that you met Mick Torney and through him, his brother, the deceased man Lee Torney.

15 A number of people came and gave character evidence on your behalf as well as written testimonials, which were tendered. While some of the written references are somewhat excessive and give opinion on matters that are not at all within the knowledge of the makers of the statement, I do take into account what they and the witnesses who gave oral evidence have to say about you and your character. But, equally, it must be noted that you have some prior convictions, although not of a particularly serious nature. There are six court appearances, including thefts, burglary and cultivation of cannabis and those offences range from 1987 through to 2002. Whilst they are not particularly serious matters, it does mean that you are unable to say that you have never been involved with the criminal justice system. More important is your current mental health situation. You were hospitalised in respect of your mental health, as I understand it, for the first time in 2002. On the night you were arrested, 10 March 2006, you were taken from the watchhouse to the hospital and, ultimately, from there to the MAP. On 29 March 2006, you were transferred to Thomas Embling Psychiatric Hospital, where you remained until 7 June. On about 27 April 2007, you were sent back to Thomas Embling and remained there until about 9 July 2007. Equally, during your time in the Melbourne Assessment Prison, you have been in the acute assessment unit for periods of months at a time. Dr Lester Walton, psychiatrist, examined you prior to the trial and determined that you were fit to stand trial and did not have a defence of mental impairment open to you. He described you as having had a psychotic episode, but that was subsequent to the killing of Lee Torney, which he believed was a drug-induced psychosis. Dr Walton was again contacted and provided with various documents, predominantly medical records, relating to the period in the psychiatric hospital in Bendigo, together with documents from Thomas Embling, and he was asked to give opinions. He gave evidence before me. He indicated that he was unable to say much at all about your condition at the time of the killing, as you had not come to psychiatric attention until some months later. He said, although you talked about being afraid there was no indication of any psychosis at that time. He stated that you had a lot of difficult things to cope with in your life, so you may well have been depressed at times, but, equally, he was unable to say that you were in a depressed or anxious condition at the time of the killing. He was asked about your inpatient stay at the Alexander Bayne Hospital in 2002 and what that meant as to your mental condition. He said that the medical records provided by the hospitals, being the Alexander Bayne Hospital and Thomas Embling, were nothing short of confusing. He said the Alexander Bayne Hospital described you as schizophrenic and Thomas Embling described you as having a minor adjustment disorder. He was referred to the abnormality in respect of your frontal lobe, which is a cyst. He said, whilst that was interesting medically, in his view, it had no real impact upon your mental health. He said it was his view that the incident in which you were placed in Alexander Bayne Hospital after the killing was, in fact, a drug-induced psychosis rather than schizophrenia and what occurred, in relation to that, was a misdiagnosis. In his view, what has occurred to you since that time is what he described as suicidal depression, serious ongoing depression. He said it is a combination of both current circumstances in which you find yourself and an ongoing issue with depression. Dr Walton was of the view that once these proceedings were complete that there may be some alleviation of your depression, but he said your prognosis remains guarded, in that much will depend on whether you resume your involvement with cannabis upon your release. It was his view that there is a chance that you may be re-admitted to Thomas Embling in the future as you have already been admitted there twice, but he equally believes, that the imposition of an actual sentence should, to a degree, ameliorate your problems. But it is his view that the depression that you suffer is reasonably well established and, accordingly, I will take that into account when I am passing sentence upon you, in accordance with the well established principles in Tsiaras[1] and Verdins[2].

16 Taking into account all of the matters to which I have referred, including your plea of guilty, your age, prior convictions, family history, psychiatric history and prognosis, general and specific deterrence and the need for just punishment, I sentence you to be imprisoned on the one count of manslaughter, for a period of six years. I further direct that you are to serve a minimum period of four years before becoming eligible for parole. I declare that you have spent 581 days in pre-sentence detention and that such be noted in the records of the Court. I make an order for the retention of the forensic sample and the disposal order. Are there any other matters?

[1] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[2] R v Verdins (2007) 169 A Crim R 581; [2007] VSCA 102.