R v Mailes & Bux [2001] VSC 236

11. Finally, orders were sought pursuant to s.86(1) of the Sentencing Act 1991 for compensation to the venues the subject of the armed robberies and an equipment hire firm. Given the sentences to be imposed, and the financial situation of the prisoners, I regard such an exercise as both futile and counterproductive. Accordingly, I decline to make those orders.

14. Jason Desmond Mailes, you have pleaded guilty to the murder of Brett McDonald at Dandenong on 31 August 1999 and, Mirrim Charles Bux, you have pleaded guilty to his manslaughter. Additionally, you, Jason Mailes, have pleaded guilty to six armed robberies and two attempted armed robberies committed at various locations between 23 October and 2 December 1999, whilst you, Mirrim Bux, have also pleaded guilty to four of those armed robberies committed with Jason Mailes between 23 October and 26 November 1999.

17. It is necessary to briefly outline the circumstances surrounding the commission of these offences since they are relevant to the sentences I must impose upon each of you. If you do not understand some of the words I use, your Counsel will explain them to you.

20. In 1999 you, Jason Mailes, operated a construction business at a factory in England Street, Dandenong, where you also resided with your de facto wife Christine Welling. You built bungalow-style units (or granny flats), as well as undertaking subcontracting work on house renovations. In these enterprises you employed both Mirrum Bux (who was your uncle) and the deceased Brett McDonald on a casual basis.

23. On 1 May 1999 you leased a factory in Sinclair Road, Dandenong, and subsequently sought the assistance of Brett McDonald in cultivating a hydroponic cannabis crop inside these premises. You and Mr McDonald were friends and had smoked marijuana together. Agreement was reached to share the profits of this enterprise equally less the establishment costs for which you were to be reimbursed. As part of that agreement, you were to purchase the necessary equipment and Mr McDonald was to accept liability for the crop in the event of police detection. Refurbishment of the factory was undertaken by Mr McDonald and it included a false wall to avoid such detection. For this work you paid Mr McDonald an hourly wage of $10 to $15 and created a credit account with BBC Hardware House enabling him to purchase the necessary tools, hardware, timber and hydroponic equipment. Because of a cash flow problem arising from tardy payments by your legitimate customers, you were unable to fully pay the expenses of

26. Mr McDonald. Although you did provide periodic payments of $50 to $100, the amounts were insufficient to repay the BBC Hardware account.

29. In early to mid-August 1999 Mr McDonald confronted you at a Bentleigh building site asking for money. It is not clear on the evidence whether this was to be an ongoing payment or whether it was a payment to Mr McDonald on the occasion of his withdrawal from the enterprise. In any event, you provided $50, which was not regarded as satisfactory by Mr McDonald, and an argument ensued. This was witnessed by others of your employees on site, including Mirrim Bux.

32. According to your account to investigating police in your record of interview, Mr McDonald left the site without giving you the opportunity to explain your financial predicament. He subsequently refused to speak to you when you telephoned him in a further attempt to explain your position. The argument about your financial arrangements, conducted as it was before your employees, both embarrassed and angered you. One reason for this was that the employees may have wondered if you had the financial capacity to pay them.

35. It was the Crown case that on 30 August you spoke to Mirrim Bux about assaulting Mr McDonald in order to teach him a lesson. You, Mirrim Bux, agreed to go to the England Street factory on the following evening (31 August) to support Jason Mailes in the fight it was anticipated would eventuate. An alternative version put on behalf of you, Mirrim Bux, was that you were requested to come to the factory on 31 August to perform work for extra money and it was not until your arrival that you learned of the proposed assault. If this version is accepted, you nonetheless knew of the planned assault. Subsequently, you, Jason Mailes, telephoned Mr McDonald and arranged for him to attend the factory on that evening. You told him that he would be paid some of the outstanding money owed to him and he would receive a cheque to repay the BBC Hardware account.

38. Some time after 6.45 p.m. Mr McDonald arrived at the factory, having driven there in his blue Holden utility. You were both already present and you, Jason Mailes, had sent your de facto Christine Welling to spend the night at Dallas Drive, Broadmeadows, being Mirrim Bux's home address. After meeting Mr McDonald outside the building, you, Jason Mailes, escorted him in through the front door where you, Mirrim Bux, immediately struck him on the jaw causing him to fall to the floor. Before Mr McDonald could regain his feet, you, Jason Mailes, struck him a number of blows to the head with a wooden mattock handle causing serious head injuries and profuse bleeding. On the prosecution version of events, you formed the opinion that Mr McDonald was going to die from those injuries so you struck him again to the head with a length of steel pipe which you grabbed from the bonnet of your nearby car. You claimed this was to prevent Mr McDonald suffering further. On any view, these were heavy blows inflicted upon a helpless man. When this was occurring, you, Mirrim Bux, became physically ill and went to a toilet within the factory to vomit. When you returned, Mr McDonald was already dead.

41. The severity of the attack resulted in both facial and skull fractures to the deceased. These head injuries were the cause of his death.

44. You both then placed plastic bags around the deceased's head to staunch the bleeding; bound his hands and feet with masking tape; tied his hands to his feet with rope; and completely wrapped his body in the plastic insulation material that was used for the building of the bungalow-style units.

47. After some discussion, the body of the deceased was placed inside a large galvanised steel tool box belonging to you, Jason Mailes. Additionally, traces of blood on the factory floor and some of the units was obliterated both by mopping and painting over the stained surfaces. You, Jason Mailes, told interviewing police you burnt the mattock handle and disposed of the steel pipe at a tip.

50. At some stage on 1 September, you, Jason Mailes, collected your partner Ms Welling and returned her to the factory which, as I have indicated, was your residential address. During the course of that day Ms Welling observed blood seeping from the tool box. Initially, you asserted it was meat for your Rottweiler dogs but later you confessed to the killing of Mr McDonald.

53. Some time in the next few days it was decided to fill the tool box containing the body with quick-set cement. This activity, in which you both participated, occurred at the England Street factory. Discussion then occurred as to a location, such as the Maribyrnong River, to dispose of it. Unable to reach a decision, you took the tool box to your Sinclair Street factory where it remained for perhaps several days.

56. In the meantime, Mr McDonald's car was taken by you, Jason Mailes, to your parents' property at Somerville. You also visited the deceased's flat. One reason you advanced to police was to see if there was anything there with your name on it. While present at the flat you took a number of tools, some of which you later utilised to borrow money from Cash Converters. You also took the deceased 's dog to the RSPCA, giving a false name and address. These activities may be seen as a plan by you to orchestrate the disappearance of Brett McDonald.

59. On 3 September, having retrieved the deceased's body from Sinclair Road, you hired a tractor with a back hoe attachment from Dandy Hire and arranged for its delivery at the England Street factory. You used the back hoe to dig a hole in the factory ground and you buried the tool box in it. On the evidence you later told Mirrim Bux what you had done.

62. Thereafter, you both embarked upon what the prosecution described as "a spree of armed robberies". You each gave reasons to investigating police for these activities. You, Jason Mailes, claimed it was because you regarded it as a method of earning more money than through your legitimate business activity which had cash flow difficulties. You, Mirrim Bux, said that you needed the money to service your gambling addiction.

68. The first was perpetrated upon the Glenroy TAB on 23 October 1999. You, Jason Mailes, entered the TAB at 11.00 p.m. armed with a nail gun. You threatened to kill those inside and ordered them to lie on the floor. You were in contact with Mirrim Bux through a two-way radio as he remained in the driving seat of your vehicle, which was the getaway car. Both of you were wearing stocking masks. Each of you received about $500.

71. On 31 October at about 11.00 p.m. you, Jason Mailes, using a stocking disguise, entered the Cuckoo Restaurant in Olinda. No patrons were present but members of the staff were. You shoved the nail gun into the ribs of a staff member, demanding money. When none was forthcoming, you fled the premises by riding a bicycle to where you had parked your motor car.

74. On 5 November at 11.30 p.m., after having spent time seeking a target, you both travelled to the Sylvania Hotel in Campbellfield. Again, each of you was wearing stocking disguises. You, Jason Mailes, left the vehicle driven by Mirrim Bux and threatened the attendant of the drive-through bottle shop with a nail gun. You obtained about $1500.

77. The 12 November 1999 incident marked another solo effort by you, Jason Mailes. On that occasion, wearing a baseball cap and reading glasses, you entered the National Australia Bank at the Chadstone Shopping Centre and joined the queue of customers. You were carrying a bag containing the nail gun. On reaching the teller you handed her an A4 size envelope upon which was written a demand for money as well as information that you were armed. It further stated: "if the screens go up, a customer will get a bullet, start filling". The teller filled it with notes to the value of about $1,950 and you successfully left the bank premises with it.

80. On 16 November 1999 at about 9.45 p.m., after some time spent searching for a suitable target, you both took part in an armed robbery on the bottleshop of the Gladstone Park Hotel. The modus operandi was the same as the earlier bottleshop robbery save that on this occasion you, Mirrim Bux, were driving your own vehicle. In the course of the robbery you, Jason Mailes, threatened to kill the attendant if he would not open a locked till. Approximately $300 was stolen.

83. Four days later, on 20 November, you, Jason Mailes, entered the Angel Tavern, a gambling venue in Malvern. You were wearing a stocking mask and carrying a nail gun in a bag. Having demanded money from the staff, you placed the money from two plastic tills in your bag and ran from the premises. The amount of money involved was about $2,600.

86. The final armed robbery in which you were both involved occurred, once again, at the Sylvania Hotel in Campbellfield. On that occasion you, Mirrim Bux, drove a vehicle unknown to you but provided by Jason Mailes. This time you, Jason Mailes, gained access to the premises through the Tabaret entrance. Once again you used the threat of the nail gun to demand money and obtained $200. Believing you may have been followed, the getaway car was abandoned in a nearby street.

89. The final episode in this sorry saga was the unsuccessful attempt by you, Jason Mailes, to rob the Commonwealth Bank at Dingley on 2 December. Wearing a cap and with zinc cream on your nose and under your eyes, you entered the bank at 3.30 p.m., carrying the bag containing the nail gun. Once again, your modus operandi was the written demand together with the intimation that you had a gun. Your note also concluded with the threat: "if the screen goes up a customer will get a bullet." Apparently the teller did not fully read the note and she asked you if you had your card with you. When you replied in the negative, she went to check with the manager. At this point you left the bank.

92. It appears that in those offences that you committed on your own, you would leave your trailer (together with its tools, wheelbarrow and car roof-rack) some distance from the scene of the proposed crime. After the commission of the offence you would drive back to that location, reattach these items to your vehicle and hence leave the scene undetected. Indeed, there was a measure of planning involved in all of these offences.

95. The total amount received by you, Jason Mailes, was $6,050 (assuming an equal division of proceeds), whilst you, Mirrim Bux, received $1500. Although the proceeds of these crimes were not significant, the trauma occasioned by the offences was substantial. The victims of your actions speak in terms of being frightened for their safety, terrified, crying and in shock, and nervous and churned up. A Victim Impact statement from Ms June St Claire, the teller at the National Australia Bank, Chadstone, details a disruption to her professional and family life following the emotional turmoil created by the robbery. She also recounts the need she has had for counselling.

98. Armed robbery, involving as it does the placing of persons in fear by the use of a weapon, is rightly regarded by this community as a serious offence. The courts are all too familiar with the trauma occasioned by its commission and the ongoing personal costs so frequently paid by its victims. Further, apart from the two banks, this series of offences involved the selection of what may be described as relatively vulnerable targets.

101. The conclusion to these events which had commenced some three months earlier followed swiftly. You, Jason Mailes, were arrested by the Armed Offenders Squad on 3 December 1999. When interviewed, you falsely claimed that the deceased, Brett McDonald, was your co-offender and that he had subsequently fled from Melbourne. It was not, however, the only falsehood you promoted at this time. While on remand at the Moorabbin watchhouse you told other prisoners of your involvement in both the murder and the armed robbery. As a result, an undercover police operative was placed in the cells with you. You again recounted details of Mr McDonald's death, you also set up the false account which you and Mirrim Bux were to tell investigating police if you were caught. This was that Mirrim Bux was not present at the time of the actual killing and that you had in effect struck the deceased with the steel pipe in self-defence when you believed he was about to strike you with an axe handle.

104. The recovery of Mr McDonald's body occurred after police spoke to Ms Welling on 4 December 1999 and she informed them of your admissions to her and showed them where you had buried the body. When interviewed by police on 6 December, you both advanced the agreed false account of the killing.

107. I have remarked on a number of occasions when sentencing persons for murder or manslaughter that the courts have a duty by the imposition of appropriate sentences to both uphold the sanctity of human life and to deter persons from committing offences which destroy such life. Of course, these offences are committed in a wide range of circumstances and by a wide variety of persons. Consequently, any sentences imposed must reflect the unique circumstances relevant to the individual offence and the offender.

110. Jason Mailes, I am prepared to accept that the killing of Mr McDonald occurred at a time when you were enraged. There is no doubt that you had intended to physically punish him and to this end had enlisted the assistance of Mirrim Bux and sent your de facto wife away for the evening. However, what was to be an assault rapidly escalated as your level of self-control lessened and your level of aggression increased. It follows from what I have said that I do not regard the evidence as enabling any finding that the killing of Mr McDonald was premeditated. On the other hand, I do not accept that there was any significant provocation offered by the deceased, let alone that he ever placed you in a position where you feared for your own safety or acted in self-defence. Rather, this was a senseless killing, perpetrated by you at a time when you had lost your self-control. Your rapid descent into anger may to some extent be explained by a combination of factors, including the financial stress you were experiencing in your business, your perceived humiliation at the hands of

113. Mr McDonald at the Bentleigh building site, and the effect of the lack of your medication designed to ameliorate your aggressive moods (a matter I will refer to again later).

116. The undertaking by you of the armed robberies must, to some extent, be seen in the context of the killing of Mr McDonald. Dr Lester Walton, a psychiatrist who prepared a report and gave evidence on your behalf, expressed the opinion that by the time of the armed robberies you were in quite a disturbed frame of mind and your judgment was seriously impaired. This was particularly the case in so far as the armed robberies were perceived by you as a solution to your financial difficulties. I do think that these offences need to be seen in the context of the events that preceded them and your general mental state. I will turn to that matter shortly.

119. Mirrim Bux, accepting your account that when you were called to the Dandenong factory by your nephew you believed it was to undertake work to earn extra money, you were informed once there that there could be a fight and that you were required for back-up. As it transpired, it was you who threw the first punch which knocked Mr McDonald to the ground. It is not alleged by the Crown that you used any weapon on this night or that you physically participated further in the fatal assault. In accepting the plea to manslaughter, the Crown have taken the view that you were not a party to any intention by Jason Mailes to kill or cause really serious bodily injury to Mr McDonald. Your liability is for unlawful and dangerous act manslaughter based upon your striking of the initial blow together with your presence thereafter, in effect as an aider and abettor, while some of the further blows which ultimately contributed to Brett McDonald's death were inflicted by Jason Mailes. These must have been blows which an ordinary person in your position would have realised would have exposed the deceased to an appreciable risk of death or serious bodily injury. Your failure to purposefully intervene may be attributable to what is conceded by the Crown to be your intellectual disability. Your distress at the swift and unexpected escalation of the violence may explain your leaving the scene to vomit.

122. I accept that the subsequent concealment of the body in the tool box, and the cleaning-up activities in which you assisted, were essentially at the direction, and under the influence of, your nephew.

125. Similarly, I accept that the armed robberies in which you took part were the brainchild of Jason Mailes and that your participation was motivated by the need to finance your gambling addiction. You told police that your involvement in two of the armed robberies - that of the Glenroy TAB on 23 October and of the Sylvania Hotel on 5 November - was the result of your nephew expressing the need to pay his debts and threatening to kill himself if you did not help him.

128. I also take into account your full admissions to the investigating police about your role in the armed robberies.

131. There are a number of matters personal to each of you which I must take into account in determining the appropriate sentences to impose. However, before discussing them, I wish to say something about Brett McDonald.

134. Brett McDonald was only 25 years old when he died. At the time of his death he had one son, Cain, now aged 7, from a former relationship. The Victim Impact statements tendered to this court by his parents, Sharon and Lee McDonald, as well as letters written by Brett, make it clear that Brett was a loved member of the McDonald family. He was an extremely talented artist who also enjoyed such activities as fishing, cooking and growing vegetables. His paintings remain as cherished momentos. The pain of the loss of their son, as well as its effect upon the life of their family, is eloquently expressed by Mr and Mrs McDonald and I could not hope to summarise it adequately. It is further described in the Victim Impact statements of Sandra and Robert Ross, an uncle and aunt of Brett. His brother Ryan describes Brett as one of the most important influences in his life. For his sister Renee, Brett was a very special person whose talent as an artist she shares. Brett's maternal grandparents, who described themselves as Nan and Pop Kilpatrick, as well as his paternal grandparents, Alma and Gerald McDonald, all speak of their wonderful relationship with their grandson. In short, Brett McDonald's tragic and untimely death and the manner in which it occurred is something from which his family will never fully recover.

137. Jason Mailes, you are aged 24, having been born in October 1976, and you have two sisters. Your father is a builder by trade. When you were 7, you moved from the Brunswick area first to Bittern, near Hastings, and then when you were 11, to Benalla. The purpose of these shifts was to build houses in the hope of a subsequent sale for profit. As a consequence, your schooling was irregular. According to your counsel, even at the age of five you were having difficulty coping with life. In any event, conflicts arose between you and your sisters and it was determined you would live with your father, who had obtained building work in Melbourne. You would spend the week with him while attending Brunswick Technical School. You returned to Benalla in time to attend Year 8 at Benalla Technical School. You apparently had difficulty concentrating, and you told Mr Joblin, a forensic pathologist, who provided a report on your behalf, that you were suspended five times for fighting before ultimately leaving at the age of 14 with a special exemption. According to your family, you are a loner with an inability to cope academically or socially.

140. The evidence of your mother, Mrs Janet Mailes, was that you have a history of behavioural problems, initially seeing a psychiatrist when you were in about Grade 5 and later when you were aged about 14, after you had mutilated your arms.

143. After leaving school, you commenced a form of apprenticeship with your father who was an accomplished carpenter and joiner and who had commenced a business called Oz Valley Pty Ltd. However, your age and lack of literary skills meant that you could not attend trade school.

146. It seems that arguments erupted with your father whom you regarded as picking on you. The culmination of this friction was when you found some adult magazines in his truck and reported this to your mother. I was informed that this created disharmony between your parents and guilt and depression on your part because of your role in it. This resulted in attempted suicide by you, including cutting your wrists and overdosing with prescription drugs. You also claimed to have attempted to hang and gas yourself. At about this time you were taken to see a psychiatrist in Wangaratta but apparently this was of no assistance. (I am unclear whether this was the occasion your mother alluded to in her evidence.)

149. Still aged 15, you went to live with your paternal grandmother, who was operating a nursing home in Elwood. You performed cleaning tasks at the nursing home and enjoyed the relative independence. That independence ceased when your father obtained a large building contract in Melbourne and the family moved in with your grandmother. Thereafter, the old family conflicts re-emerged and, according to your counsel, you again became suicidal. Following a further short stint working with your father, during which you temporarily attended trade school at Holmesglen TAFE, your relationship again deteriorated - a state of affairs you blamed upon interference by your mother and sisters. Despite your attitude, your mother attempted to resolve the situation by assisting you in establishing a florist shop in High Street, Malvern, where you took up residence. The business failed with your mother incurring financial losses. It was said that this failure exacerbated your psychological and psychiatric problems and that pangs of guilt about these financial losses resulted in you turning to crime in order to repay your mother. Your mother gave evidence of your expressed desire to repay her but it is unclear whether any repayments were made.

152. In any event, you committed a large number of offences of dishonesty. Among the 27 offences, of which you were convicted in the Oakleigh Magistrates' Court in November 1993, were three charges of aggravated burglary, one of burglary, five charges of theft, three charges of obtaining property by deception, and two charges of conspiracy to obtain property by deception. According to the presentment you were sentenced to six months YTC, (although there is some dispute about the stated length of the sentence). The sentence itself was served at Malmsbury Youth Training Centre. Having escaped from there, you were convicted at Kyneton Magistrates' Court on 14 January 1994 of escaping from lawful custody and of two offences of theft. You received one month on each charge. Apparently it was at Malmsbury that you were introduced to cannabis.

155. In October 1995, at Prahran Magistrates' Court, you were convicted of further charges, which included five offences of burglary and seven of theft, as well as offences of trafficking and cultivating cannabis. There were further convictions for trafficking, cultivating and using cannabis at the Prahran Magistrates' Court in 1997, and convictions for the use and cultivation of cannabis were recorded at the Frankston Magistrates' Court in May 1998. The latter offences no doubt reflect what has been described by your counsel as your increasing cannabis use.

158. These convictions demonstrate, at least up until 1995, a propensity for dishonesty. There are, however, no convictions for violence.

161. After the failure of the florist shop, when you were approximately 16-and-a-half years old, you lived and worked at a carpentry and joinery factory that your father had opened in Moorabbin. No doubt your work history was affected by the periods of incarceration you thereafter experienced. At the age of 18 you met Christine Welling, who was approximately three years older than you, and you formed a relationship that continued until your arrest on these offences.

164. One of the constant factors in your life has been a willingness to work hard. At the age of 19 you went to work in Sydney with your father who had been allocated a contract to fit out three shops for Rivers shoes. Both before and after that period you had worked for a company, APS Building. At the age of 20 you believed you had sufficient expertise to become self-employed in the area of house repairs, building and fencing. At one stage when you were 21 you rented a factory in Moorabbin at which you lived. Thereafter, you performed work at Red Hill for some 12 months. According to your counsel, you were working 13 to 14 hours a day. In early 1999 you rented the factory in England Street, Dandenong, with the idea of building granny flats or mobile homes. This was a commendable initiative and work commenced in late May of 1999. Additionally, you were working for Homemaker Extensions as a subcontractor and privately through advertisements you placed in The Age. You were frequently working seven days a week. Indeed, it was your mother's view that you took on too many jobs and, in effect, it all became too much for you mentally. Part of the stress was your concern about money, a concern which, as I have indicated, was a factor in your fatal encounter with Mr McDonald.

167. Apart from the psychological report of Mr Joblin and the psychiatric report of Dr Walton, a further psychiatric report was provided by Dr L. Turecek, who saw you on several occasions between October 1996 and January 1997. His report describes you as somewhat paranoid, a view shared by Mr Joblin. Dr Turecek regarded you as a disturbed young man presenting with serious personality problems in the context of a mood disorder.

170. You were then taking an antidepressant medication, Doxepin, as well as the mood stabilising agent, Tegretol. It appears that this medication had been prescribed by a Dr Ranjid, a psychiatrist, who attended your grandmother's nursing home and saw you on several occasions. You later told Dr Walton that Tegretol controlled problems with your temper. Indeed, you told Dr Walton of a lengthy history of difficulty in controlling your aggression. Up until now, this had not brought you into conflict with the criminal law. Dr Walton described you as a psychiatrically disturbed man but did not diagnose you as schizophrenic. He placed some weight on what you described as auditory hallucinations, but in this he relied upon the reliability of your own account. Hallucinations were claimed to have commenced when you were briefly remanded in Pentridge at the age of 17. However, there was no record of this claim to any treating psychiatrist prior to April 2001. Indeed, according to what was placed before this court by your counsel, your instructions were that you started hearing voices while affected by marijuana at a time prior to the commission of these offences. Even assuming your account is truthful as to any hallucinations, it cannot be suggested that you were suffering from any serious psychiatric illness which directly contributed to the commission of the murder of Brett McDonald or to the subsequent armed robberies. You informed both Mr Joblin and Dr Walton that you were not taking the prescribed medication at the time of the killing or indeed, at the time of the armed robberies. On this aspect of the matter Dr Walton comments:

"I believe his tendencies towards aggressivity probably were elevated by his having ceased the psychiatric treatment but I am not suggesting that provides a comprehensive explanation for the killing, let alone the armed robberies. The murder can be described as reasonably mundane in the sense that it was the culmination of an escalating argument."

174. In the plea some emphasis was placed upon your marijuana smoking as affecting your mental state. Whether or not this is so, it is not suggested it played any role in your actions on the night of 30 August.

177. On the question of general deterrence, I accept the evidence that you are a psychiatrically disturbed person. However, that factor, in the context of these offences, does not bring you within the class of persons for whom the principle of general deterrence may be regarded as inapplicable. Nonetheless, taking into account your overall mental state, I am prepared to marginally moderate the weight which would otherwise be accorded to that principle.

180. In sentencing you, I have regard to your relative youth and, to some extent, your mentally disturbed background. I take into account in your favour your excellent work record as well as your ultimate plea of guilty to the charge of murder and the early pleas of guilty to the armed robbery offences. Your mother, Mr Joblin and Dr Walton speak of expressions of remorse that you have made. I accept that you have expressed remorse and one aspect of that remorse is your acceptance of responsibility for this crime by the guilty plea. Further, according to Mr Joblin, you are seeking to improve yourself in custody by working on computers and reading instructional books on mechanics. You also have the benefit of the ongoing support of your family.

183. Mirrim Bux, you are 32 years of age and the youngest of four children. Your early childhood was spent in the Carlton area in a family situation where all of the members were subjected to drunken violence at the hands of your now deceased father. By the time you reached the age of 14 or 15 you had grown considerably and your father's beltings ceased. Additionally, for about four years of your early life, from the age of 8 until about 12, when you were strong enough to offer resistance, you were consistently sexually abused by an older cousin. This created in you feelings of inadequacy.

186. You attended Rathdowne Street Primary School in Carlton where you had great difficulty in learning to read and write. You proceeded through the system, nonetheless, to Collingwood Technical School where you remained until Year 9, leaving at about the age of 14. Your educational problems no doubt stemmed from an unfortunately low IQ. According to Mr Bernard Healey, a clinical psychologist who prepared reports on your behalf, you have a full-scale IQ of 69, which is indicative of mentally defective functioning. Indeed, Mr Healey expressed the view that you would most likely qualify for Intellectual Disability Services.

189. At the age of 16 your parents moved from Carlton to Yarrawonga and, at this time, you formed a de facto relationship with a 14-year-old girl named Pamela Bowers. Despite stresses placed on the relationship by your gambling, it remains an ongoing one and has resulted in three children - a girl, presently aged 12, and twin boys, aged 9.

192. After leaving school you worked in various shoe factories such as Julius Marlow. Thereafter, an attempt to undertake a carpentry apprenticeship was unsuccessful and, during your early twenties, you were frequently unemployed. In more recent times you obtained casual work as a builder's labourer. For two years, between December 1997 and November 1999, you were employed by a security firm. Evidence was given on your behalf by the managing director of that firm, Mr Graeme Maher. Although he described you as "on the slower side", he said he was happy to employ you. You had a good work record and in 1998 you had received the "Employee of the Year" award. On his assessment you were a friendly, totally non-aggressive person, well respected by the employees of the company and its clients. Mr Maher also described you as an excellent family man. Your wife Pamela confirmed that assessment and spoke of your stress and upset at being separated from her and the children, and of the family's devastation at being separated from you.

195. Both witnesses confirmed the extent of your gambling problem which had been a major blight on your life. Ms Bowers described it as out of control in the period before the commission of these offences; and Mr Maher told the court of how he had to arrange to hand over your wages in the presence of your wife so as to prevent them being gambled away. Efforts to beat that addiction by attending Gamblers Anonymous proved successful at one stage, but only for about 12 months.

198. I take into account in your favour your pleas of guilty to all offences, noting that those for armed robbery were made as early as the committal proceedings. Those pleas may also be taken as demonstrating a level of remorse on your part. A letter from an Anglican parish priest, the Rev. Margaret Burt, also points to your remorse at what has occurred. Other letters were tendered attesting to your caring nature as a father, your kind and gentle personality and your prior good character.

201. The factor of separation from your family, added to the problems with which a person with an intellectual difficulty may be expected to face in a prison environment, will make your period of incarceration more onerous. I take that into account in sentencing you.

204. Despite the anxiety and depression you have experienced in the prison setting, you have endeavoured to better yourself. For example, you have worked in the kitchen of the Port Phillip Prison for approximately 12 months and graduated from kitchen hand to baker. Additionally, you have undertaken a Certificate of General Education for Adults in an endeavour to improve your literacy skills. This is to your credit. You are fortunate in continuing to have the support of your wife and mother.

207. All these matters are in your favour and suggest a capacity for rehabilitation.

210. It was put by the defence that your intellectual disability should be reflected in the attribution of less weight to the sentencing principles of specific and general deterrence. The Crown did not dispute that this was a factor to be weighed in balancing the mix of sentencing considerations.

213. This is a tragic case. The senseless killing of Brett McDonald has not only devastated his family, but has also greatly damaged the family of each of you.

216. I must sentence you attempting to balance the various principles enunciated in the Sentencing Act including punishment, specific and general deterrence and rehabilitation. I am also required to fix the individual sentences having regard to a total effective sentence which is appropriate but not crushing. Acting within those constraints, I have concluded that the appropriate sentences are as follows.

219. Jason Mailes, on the offence of murder you are sentenced to be imprisoned for sixteen years; on each of the offences of armed robbery and attempted armed robbery you are sentenced to be imprisoned for a period of four years. I order that two years of the sentences on counts 1 and 4 of the County Court presentment dated 23 May 2001 be served cumulatively with each other and cumulatively with the sentence for the offence of murder. This results in a total effective sentence of twenty years. I fix a minimum of fifteen years before you become eligible for parole.

222. Mirrim Bux, on the offence of manslaughter you are sentenced to be imprisoned for six years; on each of the four offences of armed robbery you are sentenced to be imprisoned for three years. I order that eighteen months of the sentences imposed on counts 2 and 4 be served cumulatively with each other and cumulatively with the sentence imposed for the offence of manslaughter. This results in a total effective sentence of nine years. I fix a minimum period of six years before you become eligible for parole.

225. Further, in your case, Jason Mailes, I declare that the period to be reckoned as already served under the sentence is 575 days inclusive of today's date; and in your case, Mirrim Bux, it is 571 days. I direct that there be noted in the records of the court the fact that this declaration is made and its details.

I certify that this and the 18 preceding pages are a true copy of the reasons for sentence of Coldrey, J. of the Supreme Court of Victoria delivered on 29 June 2001.