R v Makin [2002] VSC 80

Supreme Court of Victoria|2002-03-26|Before: Gillard J

CRIMINAL LAW - Sentence - Murder - Accused giving himself up.

Stephen Mark Makin, the jury has found you guilty of a count of murder, namely, that at Preston, in the State of Victoria, on the 8th day of March 1998, you murdered Brian Wayne Freake.

At the outset, it is necessary for me to determine my view of the facts which is consistent with the verdict of the jury. In this proceeding, there were two versions of facts placed before the jury. The first version is found in the confessions you made to various people and members of the police force in the Northern Territory in August-September 2000, and the other version was that given by you in the witness box. It was open to this jury to convict you of murder on either version, and a question asked by them late on the second day of their deliberations suggested that some members of the jury were contemplating the version of facts given by you in the witness box. The jury further deliberated for approximately two hours on the third day. What in the end were the facts actually found by each juror is not known.

It is a trite proposition, that the jury's verdict establishes that the jury was satisfied of each of the elements constituting the crime of murder beyond reasonable doubt. However, there are other facts which were placed before the jury which are particularly relevant to the question of sentence and which are not necessarily established by the verdict; matters such as pre-meditation, planning, motive, as well as any mitigating circumstances. See R v Prokopiec (1982) 7 A Crim R 116 at 119.

The judge's sentencing task was stated by the Full Court in R v Harris [1961] VicRp 36; (1961) VR 236. Lowe J said at p.236 -

"The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. ... He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed and he can form his own judgment of the seriousness or other character of the offence."

See also R v Webb [1971] VicRp 16; (1971) VR 147 at 152-3, and R v Hill [1979] VicRp 33; (1979) VR 311 at 312.

In carrying out the task, a trial judge is not bound to take the most lenient view of the facts which would support the verdict. See R v Harris, supra, at p.237 and R v Hill, supra, at p.312.

As the judge presiding at this trial, I have had the opportunity to consider the evidence and form an opinion as to the demeanour of witnesses and, in particular, whether the accused is a truthful and accurate person.

In reaching my conclusion as to the facts, consistent with the verdict of the jury, I accept that matters that are adverse to the interest of the accused must be established beyond reasonable doubt. On the other hand, if there are circumstances which the Court takes into account in favour of the accused, it is enough if those circumstances are proven on the balance of probabilities. See R v Storey (1998) 1 VR 359 and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. That is not to say that every particular fact has to be established to that degree, but any facts which establish a relevant issue in the sentencing process which is adverse to the interests of the accused must be proven beyond reasonable doubt.

The principles that I have set out have recently been re-affirmed by the High Court in Cheung v The Queen [2001] HCA 67; (2002) 76 ALJR 133.

Mr Brustman sought to put a gloss on those principles. The case presented by the Crown was based upon confessions made by the accused in Darwin in August-September 2000. According to the confessions, the prisoner was the only person responsible for the death of the deceased. After he had made his confessions in Darwin and whilst he was still there, he informed members of the Victorian Police Force, off the record, that he was present when the death occurred but was not responsible and that some other person was. At trial, he gave evidence on oath in which he gave a version that another person was responsible for the death and that he played no part in assisting that offender, even though he was present. His evidence showed that he played a significant part in assisting this alleged principal offender after the death had occurred. This evidence was no doubt available to the jury to establish the inference that the death resulted from some arrangement, understanding or agreement involving the prisoner.

Hence, the case against the prisoner on the count of murder was that either he was the principal offender in accordance with his confessions, or he aided and abetted the principal offender in accordance with his version given in Court.

The jury commenced their deliberations on Monday 18 March 2002 at 11.08 a.m. and ceased their deliberations that evening at about 6.00 p.m. They continued the following day. At about 6.15 p.m., they asked a question which was in these terms -

"'By different paths to murder', can some find him guilty on the basis of being the principal and some find him guilty on the basis of aiding and abetting?"

The jury was directed that the answer was, "Yes". The jury ceased deliberations at about 6.45 p.m. and resumed them the following morning at about 9.30 a.m. The jury delivered its verdict at 11.55 a.m.

Mr Brustman submits that it would be open to me as the sentencing judge to infer that some members of the jury found that the prisoner was guilty of murder on the basis of aiding and abetting and was not the principal offender. It was put that if I made that finding, there may be a basis for imposing a lesser sentence.

The fallacy with the submission is that I do not, nor does any other person, know the basis upon which each juror found the prisoner guilty of murder. I could not possibly proceed on that assumption.

The verdict is inscrutable. The Court cannot speculate as to how each juror arrived at the unanimous verdict. The Court will decide the facts consistent with the verdict.

In Cheung v The Queen, supra, Gleeson CJ, Gummow and Hayne JJ, at p.135, said this -

"It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict." (Emphases added).

As their Honours went on to emphasise, it may be a difficult task for a sentencing judge to decide questions of degree involved in assessing an offender's culpability and proper measure of punishment.

But in the end, it is a matter that I must decide and I could not, given the facts relied upon by Mr Brustman, infer that some members of the jury may have found the prisoner guilty on the basis of his version given in Court.

In accordance with the principles stated above, I will decide the facts consistent with the verdict and any adverse findings that I make against the prisoner which are not implicit in the finding of guilty by the jury, would have to be established beyond reasonable doubt.

My task is to determine the facts consistent with the jury's verdict and apply the relevant principles of law relating to sentencing. In the exercise of my discretion I shall determine what is a proportionate and appropriate sentence in the circumstances.

In that regard I note the observations made by the Court of Appeal in R v Storey (1998) 1 VR 359 at 366, where four members of the Court said -

"Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single 'right' answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes account of the various purposes for which sentences are imposed - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to principles of totality, parity, parsimony and the like."

Turning to the facts, as I have said, the Prosecution case was that on 8 March 1998, you viciously killed the deceased, Brian Wayne Freake, at his home in Preston. The Crown case was based upon your confessions to members of the police force and others made in the year 2000 in the Northern Territory. Despite making very full and detailed confessions to members of both the Northern Territory and Victorian Police Force, you told the Victorian Police off the record that you were not responsible for the death and that it was caused by another. At your trial, you gave evidence, stated that you were present when the deceased was killed, that he was killed by a person called Mick whom you refused to identify, and that you assisted Mick after the event. You told the jury that the murder came as a complete surprise to you, and that the moment you observed what was happening, you quickly left the immediate scene.

The case on murder was therefore left to the jury on one of two bases. First, that you were solely to blame for the death, and that your confessions were the true version of what occurred, but in the alternative, if your version given in the witness box was correct, then you were guilty of aiding and abetting the commission of the offence by the person Mick.

This trial lasted over six days of evidence and two days of submissions and charge. I have had the opportunity of observing and hearing all witnesses, including you, and sufficient time to carefully consider and appraise the evidence and the witnesses. It is for me to determine the facts consistent with the verdict. In my opinion, the version you confessed to in Darwin is substantially the correct version. You killed the deceased and no other person was present.

You were born on 1 November 1966, and on 8 March 1998, you were aged 31 years. You are a diabetic and have been one since 1986. You had known the deceased, Brian Wayne Freake, for some years. You had been to his house about ten times. He was known to you as a low level drug dealer, selling marijuana and speed. You introduced your brother-in-law, Mark Williams, to him, and Mark Williams purchased drugs from him. You purchased drugs from him. Mr Freake was an alcoholic, aged 52 years, of frail build, some five feet ten, and weighing about 56 kilograms. He had suffered cancer and was ill. He had had major operations to his face, which left his face disfigured, and his tongue tied down. He had difficulty eating solid food and also difficulty in talking. He frequented Cramer's Hotel in Preston just about every day, where he had a circle of drinking friends, and stayed there for many hours. He traded in drugs at the hotel and at his house. From time to time, you had a drink with him in Cramer's.

Evidently, you owed him a sum of $50 for a gram of speed which you had owed him for some period and you decided to go and see him on Sunday 8 March 1998. This was the Sunday of the Labour Day weekend. You arrived some time during the late afternoon and he invited you into his loungeroom. He seated himself on a low chair against the wall next to a heater and facing you. You informed him that you were not going to pay the $50 you owed him because the speed that he had sold you was of inferior quality. You stated that he got up off his chair and hit you and you started fighting. You say that you struck the deceased, which caused him to fall back into his chair which was against the wall. You then pulled out a baton of some ten inches or thereabouts, made of iron or steel and covered with rubber, and commenced to strike him over the head. You struck him at least five blows, causing blood to spurt from his head over the wall and the surrounding furniture and, I have no doubt, rendering the deceased unconscious. The evidence revealed that the assault did not kill the deceased, but he was unconscious. You then decided to make sure that he was dead by going into the kitchen, opening a drawer, removing a knife, returning to the loungeroom and cutting his throat. I find that whilst cutting his throat, you moved his body and flung it on the floor in front of the chair. It was the incisions to the throat which caused the death of the deceased and this would have occurred in a matter of minutes. He died lying on the floor.

You apparently walked into his bedroom, for reasons which do not emerge in the evidence, and opened a drawer.

The evidence, not only of what you said in the confessions but also from the forensic scientists, leads me to the conclusion, beyond reasonable doubt, that the deceased was struck in the head when he was seated in his chair next to the wall and remained so throughout the brutal assault which rendered him unconscious. You then cut his throat and in so doing, dragged him onto the floor.

When the police arrived, the furniture in the room was in a state of disarray. The deceased's chair had been lifted up and thrown upside down onto the floor near the entrance to the loungeroom, the table lamp next to the chair was on the floor, and another coffee table which was near to where the deceased was sitting, was turned over.

You did not leave any fingerprints. In answer to a question I put to you when you gave evidence, as to the lack of fingerprints on the drawer in the bedroom, you stated that you covered your hand with your T-shirt before you opened the drawer. The lack of fingerprints leads me to the conclusion that you either took steps before you got there to ensure that you left no fingerprints, or you had sufficient presence of mind after you had killed the deceased to remove all fingerprints. It is clear that you lifted a chair and threw it, as it is also clear that you turned over a coffee table and opened two drawers, one in the bedroom and one in the kitchen, and left them open. That conclusion, together with the possession of the baton, lack of any real provocation and no apparent motive of substance, tends to go against any suggestion of a panic killing.

After you had killed the deceased, you left the house, went to an address in Bailey Avenue, changed your T-shirt which was covered with blood, wrapped the baton and knife in the T-shirt, purchased a plastic bag from a milkbar and walked to the Yarra River, where you placed a rock inside the bag and threw the bag into the river.

On 30 March 1998, the police attended at your flat at 33/235 Nelson Place, Williamstown, and spoke to you. You told them a pack of lies. You admitted as much in your record of interview in Darwin and admitted as much when you gave evidence. You denied knowing anything about the incident, stated that you were unaware of the death, asserted that the deceased had two German Shepherds which he did not, and that you had not been to Mr Freake's house for about six months.

The police did not suspect you and eventually the investigation failed to find the killer.

On the evening of 30 August 2000, you attended at the Darwin Police Station and admitted that you had killed the deceased. Prior to that you had made two admissions concerning the death to a girlfriend, Miss Corrine Roth, and one admission to a Mr Dobrovich. You attended at the police station in a state of deep depression, with a blood sugar reading which was very high for a diabetic, affected by alcohol and maybe drugs. You made confessions that you killed Mr Freake to an Acting Sergeant Read and an ambulance driver, but in circumstances where you made a number of statements which were quite inaccurate. Nevertheless, the following morning, after having your insulin and breakfast and when you were in a calmer state of mind, you frankly confessed the crime to two detectives of the Northern Territory Police Force and confessed in some detail. The following morning, when you were in a far better state of mind, you had a long interview with two members of the Victorian Homicide Squad. The interviews were recorded by video camera and established beyond doubt, that all of the policemen gave you every opportunity to tell your story, did not pressure you in any way or offer any inducements to you. You calmly, and in considerable detail, told them how you killed the deceased. It is the version you told the police which I accept. Even in the course of that version, you told a lie. You told the police that on that Sunday, you were living at Bailey Street, Preston, which was your mother's address, and you said that you were living with your mother at the time. You repeated the same lie on oath in this Court. You were exposed by the fact that your mother had died in the previous year, and further, that her unit in Bailey Avenue had been returned to the Housing Commission the previous year and was no longer available to you. Yet you led the police to believe that you went to the Preston area and stayed at your mother's unit, because that is where your friends were. Indeed, you told me the same thing when I asked the question of you as to where you were living at the time and why you had two places of residence, namely, Williamstown and Preston.

You told the first NT police member, Acting Sergeant Read, that you wished to report a crime that you had committed to clear the air and to get it off your chest.

When you gave evidence at trial, you told two lies on oath. You stated that your mother was alive and that you visited her unit after the incident. They were untrue and exposed to be untrue. You are a person who is prepared to lie on oath. Further, you were asked by the learned Crown prosecutor to name the person whom you said killed the deceased while you were there. Other than referring to him as Mick, you refused to name the person, and despite being required by the Court to do so and informed that it may be a contempt of court, you still refused to do so. You said you were in fear.

I do not accept your reason for refusing to answer the question. If there was any question of fear, the threat from Mick would have commenced and been continuing from the moment you left the premises of the deceased on 8 March 1998. You had witnessed a vicious, callous, unprovoked murder, and if there was any concern about Mick and his attitude to you, it would have commenced then. The evidence revealed that Mick had not been seen by anybody since late 1997, and according to your evidence, you did not see him again after 8 March 1998. You told the Court that he rang you when you were at Williamstown, you told him not to make contact again and he disappeared. Your refusal to answer the question in Court does not stand up to scrutiny and the reason given I reject.

In addition to the lies you told in Court on oath and your refusal to name the alleged killer on your version, you told a pack of lies to the police when they interviewed you on 30 March 1998. Further, you lied about your Preston residence to the police when interviewed in Darwin.

You fit into the category of witnesses whom I would not believe, even on oath, unless the evidence was corroborated by independent, reliable evidence, or was evidence given which was contrary to your interests.

In my opinion, the version given by you to the police was substantially the correct one, namely, that you attended at the residence, and callously and viciously killed the deceased.

The attack was unprovoked, apparently without motive and brutal.

I reach that conclusion not only because I reject your version given on oath but also because of other matters. First, your full and detailed confessions were consistent with what was found at the crime scene. Based upon common sense and what a number of witnesses either expressly or impliedly stated, no person, acting rationally, would ever admit to a serious crime which he did not commit. Secondly, your version of what occurred with the alleged killer Mick defies credulity. If your version was correct, Mick took a piece of metal rod to the house, and without any provocation, commenced to rain blows in your presence on the deceased, which no doubt rendered him unconscious, and then proceeded shortly thereafter to cut the deceased's throat, ensuring that he died very quickly. You said that you left the room and rummaged around in a bedroom. There were no fingerprints found of either you or this alleged person Mick. The circumstances suggest that despite the alleged frenetic activity caused by what Mick was doing, nevertheless both you and he were being careful in ensuring that no fingerprints were left. The evidence all points to the fact that the deceased was killed whilst in a seated position, yet the furniture in the loungeroom where he was found was thrown around, suggesting a struggle. This suggests a re-arrangement after the event. Given those facts, it is incredible to think that Mick, who obviously had in mind the intention of killing the deceased, would take you along as a witness. Why would he do that?

Thirdly, your refusal to answer the question as to who Mick was, and your reason being one of fear, does not withstand close scrutiny or analysis. The fear would be that Mick would eliminate you to avoid being apprehended. That fear would have been present the minute you and he walked out the front door of the house on 8 March 1998. There would be an ever present fear that Mick would come after you. What difference does it make that you were placed in police custody? There was always the risk that you would identify him. I do not accept that the reason why you refused to name Mick was because of fear. In my view, it was because to do so would at least open up the prospect of investigation by the police as to your story.

In my opinion, the versions given by you in some detail to the police in the Northern Territory are basically correct. You attended at the deceased's home on your own, you had a piece of rubber covered metal rod in your pocket and you killed him without warning. I find it hard to accept that a frail man, five feet ten in height, weighing some 56 kilos, an alcoholic, who had been drinking already that day, and ill, would seek to strike you as you have alleged. If he did, you could not have been in any fear or concerned about your ability to take the upper hand. The evidence from the forensic scientists strongly supports the view that the deceased was seated when you first struck him. Indeed, that is the version you gave in the witness box when you said that Mick commenced to strike him without warning. You were sufficiently calm and collected to ensure that there were no fingerprints left, despite moving furniture and opening at least two drawers.

On 30 March 1998, when interviewed by the police, you told them a pack of lies and in my view, did so to avoid apprehension.

The police in Darwin, Sergeant Read, Messrs Frew and Brayshaw, and the Victorian Police who interviewed you in Darwin, Messrs Collins and Argall, gave you every opportunity under appropriate circumstances to tell your version and no pressure was in any way brought upon you to admit or say anything. You set out in some detail how you caused the death of Mr Freake. I am satisfied that it was a brutal, callous, unprovoked attack by you on a frail, defenceless man.

The reason why you killed the deceased is not apparent. I have great difficulty in accepting that you killed him over a $50 debt or that you killed him because he struck you. The evidence pointed to other possible motives, namely, that the death of your friend, Glen Anderson, may have had something to do with the supply of a bad drug, that you wished to move in on the territory of the deceased, or that you did not like him because he was selling inferior quality drugs. However, whilst the evidence raises these possible motives, I could not be satisfied beyond reasonable doubt in respect to any of them. Indeed, it may be that there was another motive which has never been revealed to anybody. I raised this question of motive during the plea but your Counsel did not inform the Court of any motive and no submission was made as to a possible motive. I find that there was no motive for the attack.

Further, I raised with Mr Brustman whether this was an execution. The sum of the evidence points in that direction. The fact that you had a piece of metal in your back pocket when you got there, that the circumstances leading to the point where you commenced to strike the deceased do not show any form of provocation of any sort, that there is no apparent motive, the steps taken to avoid leaving any fingerprints and the re-arrangement of the furniture in the lounge to suggest a scuffle, all point towards an execution. However, I would have to be satisfied beyond reasonable doubt that you did execute the deceased and I am not prepared to so find. But nevertheless, the crime was committed in circumstances which were unprovoked and have all the hallmarks of a senseless, stupid, callous killing done without motive. I sentence you on that basis.

The principles that guide a court in sentencing are found in the common law and in the statutes, particularly the Sentencing Act 1991.

The sentence for murder is either life or imprisonment for such term as is fixed by the Court. See s.3 of the Crimes Act 1958.

The crime of murder is the second most serious crime in the calendar after treason.

The object of sentencing is to pass a sentence which the Court regards as the appropriate sentence. The purposes of criminal punishment are various, and include protection of society, deterrence of the offender and of others, retribution and reform. The weight to be attached to each factor depends upon the particular circumstances of each case.

In the end result, the punishment must fit the crime. In other words, the sentence must be appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances. I am bound to consider the matters set out in s.5 of the Sentencing Act 1991.

The Court must consider the nature and gravity of the offence, your degree of criminal culpability and responsibility, any aggravating and mitigating factors and all other relevant circumstances. The issue of remorse is also relevant.

On any view, this offence is serious. It is made more so by the fact that the killing was without motive or provocation and resulted from impulsive, mindless acts. Your level of criminal culpability is high.

The gravity of the offence is the starting point in the sentencing exercise and the Court is obliged to not only clearly denounce your criminal conduct but also take into account general deterrence.

Three victim impact statements were placed before the Court. None were contested. They graphically show the appalling effect your crime has had on the emotional state of the deceased's elderly parents and one of his daughters.

You have admitted prior convictions commencing on 5 July 1986 in Kalgoorlie, Western Australia, and the last on 12 October 1993 in the Magistrates' Court at Moe. All told, there were four court appearances and you were fined in relation to three of them. In respect to incidents which were dealt with on 6 April 1993, namely, making a threat to kill, making a threat to inflict serious injury, assault with a weapon and unlawful assault, you were placed on a Community Based Order for a period of 12 months which you breached on 10 February 1994 at Heidelberg, the original order was cancelled, you were sentenced to be imprisoned for three months and such sentence was wholly suspended for 12 months.

I note those prior convictions, but in my opinion, they play no part in this sentencing process. They are minor compared with your conviction for murder. In any event, you have suffered a penalty in respect to each one. See R v Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-78.

The sentencing process requires the Court not only to take into account matters that may be generally described as aggravating, but also to take into account matters personal to you, and any mitigating factors. In addition, the issue of remorse is relevant to the exercise. The presence or absence of remorse is to be taken into account.

You were born on the first day of November 1966 and are now aged 35 years. You were raised in the Collingwood and Preston areas and apparently educated to Year 7 level at Collingwood Technical School. Thereafter, you worked for six years as an apprentice jockey, but did not complete your apprenticeship. At the age of 20 years, you left the world of racing and undertook a variety of labouring-type jobs. You state that you have usually been in work. You have had a medical history of diabetes which was first diagnosed in 1986, and apparently you have neglected your medication from time to time. You went to Alice Springs in 1999 and conducted a relatively successful cleaning business. You have had an alcohol and drug problem and did so during the years 1997 to 2000. According to the report of Dr Lester Walton, you have a minimal psychiatric history, but some three weeks prior to presenting yourself to the Northern Territory Police, there were several incidents where you were obviously distressed and upset, resulting in admission to a psychiatric unit, being assailed by suicidal ideas.

You approached the Northern Territory Police shortly prior to midnight on 30 August 2000. At that stage of your life, you were severely depressed, your blood sugar levels were extremely high, you had been drinking alcohol and had been abusing drugs over some weeks. I have no doubt that you were at the lowest ebb you have probably felt in your life, since your marriage broke down. These circumstances no doubt led you to confessing to your involvement in the crime. Whilst it would be open to infer that your statements made shortly prior to midnight on the 30th and in the early hours of 31 August may have been influenced somewhat by your physical and mental conditions, I have little doubt that by the time you spoke to the Northern Territory Police later that day, you were fully aware of what you were saying and doing, and quite prepared to make full admissions.

The following day, after a night's rest, and your sugar levels being controlled, you were prepared, without any pressure or inducement, to provide in full detail the way you had killed the deceased. It seems to me most likely that you would have had some feelings of remorse and guilt at that stage, despite telling the jury in the present case that you had no feelings of guilt during this period. But any feelings of remorse dissipated on 1 September 2000 and since then, you have maintained that you did not kill the deceased. Your change in attitude was made clear to Dr Walton in November 2000 and you have maintained throughout that Mick caused the death. Any feelings of guilt and remorse lasted no more than two days. You told the jury that you had no feelings of guilt, even when allegedly assisting Mick after the crime, and today. I find no remorse.

If you had not confessed to the police, then the probabilities are indeed high that as at today, there would be a file in the Homicide Office bearing the name "Freake" and the inscription "unsolved". Hence, by your actions in confessing to the crime, you have assisted the authorities and you have been found guilty. I do take into account that fact as a mitigating factor and reduce your sentence accordingly - see R v Ellis (1986) 6 NSWLR 603 at 604. But the weight I attach to that fact is substantially reduced by your decision to resile from your confessions. Your sentence is not increased by the exercise of the right to plead not guilty, but your change from contrition to denial means that the reduction in your sentence for admitting the crime is substantially lessened. Further, by pleading not guilty, you have deprived yourself of a not insubstantial reduction in your sentence if you had pleaded guilty.

In R v Ellis, supra, Street CJ, speaking for the Court, said -

"The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits the significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

I have considered the evidence placed before me on your behalf by your Counsel and I have taken into account the submissions.

After carefully weighing all the relevant matters, including the fact that you gave yourself up, I convict you on the count in accordance with the verdict of the jury and sentence you to a period of 19 years' imprisonment.

It is now necessary to consider the minimum period of imprisonment. Under s.11(1)(b) of the Sentencing Act 1991, the Court is bound to a fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which makes the fixing of such a period inappropriate. In my view, the general rule should apply and I will fix a minimum period. It must be borne in mind that the minimum period is part of the sentence and the Court is concerned when fixing the minimum period to determine what is the appropriate period that you should be imprisoned. I refer to the observations made by the Court of Appeal in R v Chan (1994) 76 A Crim R 252 at 255.

The same factors which are taken into account on the head sentence are also relevant and to be weighed carefully in fixing the minimum period. The weight which should be attached to each particular relevant matter depends upon the circumstances. As a general rule, the factors that are favourable to the prisoner are given more weight, i.e. the mitigatory factors, risk to the community upon release and rehabilitation: see Iddon and Crocker v R (1987) 32 A Crim R 315 at 325 - 6 and Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 at 530-32 and 536-38.

Your Counsel submitted you were a loner without family or friends. You have two sisters with whom you have had little contact for many years. Although they visit you now, their visits are infrequent. It is unlikely that they will continue on any regular basis. Your Counsel did not suggest that the question of rehabilitation has any part to play, but I think the minimum term should take that matter into account. Further, I take into account the fact that you are aged 35 years and your period of imprisonment will span the years which should have been your best years.

Having weighed the relevant matters carefully, and in particular the question of rehabilitation, it is my opinion that the minimum period during which you are not eligible to be released on parole is 15 years.

Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of imprisonment is to be reckoned from 30 August 2000 when you were arrested. I declare that the period of 574 days, inclusive of today's date, during which the prisoner has been held in custody be reckoned as time already served under the sentence which has been imposed. I direct that the records of the Court note the said declarations.

I certify that this and the 3 preceding pages are a true copy of the reasons for Sentence of Gillard J of the Supreme Court of Victoria delivered on 26 March 2002.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties

Cases Cited (6)