R v Mitchell [2005] VSC 219

3 The circumstances of the offence are as follows. You had been in a relationship with a woman named Leanne Brown for a number of years. You and she have two sons, now aged 11 and 9. In early 2002 she formed a relationship with a person she had met at her work, Andrew Preston. After a time, Leanne Brown and Andrew Preston began living together, eventually moving into a caravan at a caravan park in Lilydale. One feature of the relationship between Leanne Brown and Andrew Preston was the abuse of amphetamines. On Monday, 29 April 2002 you and Gavin Brown, who is Leanne's brother, went to the caravan park. The two of you accompanied Andrew Preston to your four-wheel drive vehicle. You then drove the vehicle to a remote location near Powelltown. Gavin Brown's evidence at your trial was that at that location you stabbed Andrew Preston and killed him. His body was pushed off the track and left in the bush. You and Gavin Brown returned to Melbourne.

4 Andrew Preston's body has never been recovered. For a considerable period both Leanne Brown and Gavin Brown made statements to the police which were untruthful and which impeded the investigation. Gavin Brown began cooperating with the police in April 2003, but attempts then made to locate Andrew Preston's body were unsuccessful. The inability of the police to locate the body may be due to roadworks which were conducted in the area in February 2003.

5 Shortly prior to your arrest you made admissions to Leanne Brown in conversations which were covertly taped by investigating police. After your arrest a record of interview was conducted in which you made no admissions. Evidence was given at your trial which suggested that you were concerned about the possibility of Leanne Brown and Andrew Preston's relationship interfering with your relationship with your two sons, and in particular that you were concerned at the prospect that Leanne Brown and Andrew Preston might remove your two sons from your care.

6 In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]

7 On your plea, the prosecutor submitted that I ought not to proceed on the basis that you went to the caravan that night and took Andrew Preston away with you for the purpose of killing him, but rather that I should proceed on the basis that you took him away in order to "warn him off." I accept that. I am not satisfied beyond reasonable doubt that you did take Andrew Preston away from the caravan that night for the purpose of killing him. I accept that I should proceed on the basis that your intention when taking him from the caravan was, in the prosecutor's words, to "warn him off." The jury's verdict is that you did not "warn him off," you murdered him.

8 The offence of which you have been found guilty is clearly a most grave and serious one. Andrew Preston was a drug user, and the evidence in your trial suggested that he encouraged drug use in your partner, Leanne Brown. I accept, as your counsel submitted on your plea, that the circumstances of the relationship between Leanne Brown and Andrew Preston were such as to make any father concerned. That matter, however, does not detract from the gravity or seriousness of the offence of which you have been found guilty and for which you are responsible.

9 On your plea, a report from the clinical psychologist Mr Bernard Healey was tendered, as were two character references, and a letter from your daughter's school. I have had regard to that material.

10 You are now 43 years of age. You were born in Sandringham. Your mother attended much of your trial and was present on the plea. Your father died at a comparatively young age from a brain tumour. You had a brother who was killed in a motorcycle accident and you have a married sister. It seems that you had a happy and harmonious home life as a child, and you maintain contact with your mother and sister. You have a close relationship with your cousin, Ms Kapac, who gave evidence as to your character on the plea and who has maintained a relationship with Leanne Brown, who now cares for your sons. Ms Kapac arranges visits by your sons to you in prison.

11 You attended Bentleigh West Primary School and Bentleigh Technical School and ceased your schooling in Year 9. You commenced work at the age of 15. You have since had a consistent work history. Your last job was as a coach builder at a firm named Volgren. You are well-regarded by your co-workers. There is no evidence of any drug or alcohol problems.

12 Both the evidence in your trial and the evidence on the plea reveal you to be a dedicated and loving father. You have a close relationship with your daughter, Tiffany, who is now 17 years of age. Tiffany is the daughter of you and your ex-wife, with whom you have maintained good relations. Before your arrest you were the primary care giver to your two sons.

13 Andrew Preston was originally from New South Wales. He came to Melbourne as a result of a relationship he then had with one of the witnesses in your trial, Tabatha Ludlow. At the time of his death he was 23 years of age. The evidence indicated that he was a drug user. I do not accept, as was suggested by your counsel on your plea, that there is any reliable evidence that he was a particularly violent person. On any view, he underwent a terrifying ordeal at your hands, and his young life was then tragically and callously cut short by you.

14 Andrew Preston's mother, Marguerite Preston, filed a victim impact statement in relation to Gavin Brown which was also relied upon in relation to your sentence. It is clear that Mrs Preston has been tragically affected by her son's disappearance. Her distress has been worsened by the inability of the police to find his body.

15 On your plea your counsel put forward a number of matters in mitigation.

16 He submitted that you were a person of good character. He referred to the absence of any alcohol or drug abuse, to your work history, to the close family relations which you have, and to the absence of any significant history of violence.

17 You do have a number of prior convictions. With one exception, they are all fairly old and do not involve violence. Two involved firearms matters, but the penalties imposed suggest that your counsel's submission that they were not serious matters is well-founded. The exception is a conviction in March 1995 for unlawful assault. The conviction was at the Frankston Magistrates' Court and you were sentenced to pay a fine of $500. On the plea your counsel said that the circumstances of that offence involved you grabbing a bottle shop attendant who had accused you of taking a bottle of bourbon. I accept your counsel's submission that the sentence suggests that the matter was not a serious one.

18 The prosecutor submitted that, given your prior convictions, you could not be treated as a person of good character. Whilst I accept that, it is important that you have no significant history of violence and that your prior offences generally are, with one exception, quite old.

19 Your counsel referred at some length to the effect upon you of separation from your daughter, Tiffany, and from your two sons, as a result of your imprisonment. I accept without hesitation that the burden of imprisonment on you will be very significant, given the close relationships which you have with your children.

20 Your counsel submitted that the circumstances existing at the time between Leanne Brown and Andrew Preston were circumstances which arose beyond your control and were circumstances which any father would have found to be disturbing. I accept that, but that, of course, does not excuse or justify in any way what you did.

21 Your counsel submitted that you have no psychological problems of significance and that specific deterrence is not a particular concern in your case. He submitted that your prospects for rehabilitation were excellent. It seems to me that specific deterrence is a factor in your case, but the absence of psychological problems, the absence of any significant alcohol or drug abuse, and your strong family ties, are all factors in your favour when assessing the prospects of rehabilitation.

22 Finally, your counsel submitted that the prosecution was correct in the attitude which they took towards the circumstances of the offence. Your counsel submitted that you had not planned the commission of any serious crime, as you went to the caravan openly on the night in question, having left your sons with Leanne Brown's parents.

23 I accept the prosecutor's submission that you have shown no remorse. Although in the secretly taped conversations with Leanne Brown you referred to the fact that you were then "paying" for what you had done, it seems to me that the prosecutor has correctly characterised that as regret for the consequences or potential consequences of what you had done, rather than remorse. I also accept, as the prosecutor submitted, that this position does lead to doubt as to your prospects of rehabilitation.

24 On any view of the facts, Andrew Preston went through a terrifying ordeal prior to his death. He was forcibly taken at night from the caravan and driven to an isolated spot. I have no doubt that he was terrified before he was murdered by you. These circumstances are aggravating factors.

25 The fact that your subsequent conduct, collaborated in for a time by Gavin Brown and Leanne Brown, has probably significantly impeded the prospects of locating Andrew Preston's body is also an aggravating factor. Those who knew and cared for Andrew Preston have had to endure, and will have to continue to endure, suffering as a result of that circumstance.

26 I am very conscious of the fact that in imposing a prison sentence upon you I am imposing a burden upon your daughter and two sons as well. That is a burden which I know you will also feel keenly. Andrew Preston's life has been taken away forever by you. A substantial term of imprisonment must be imposed in order to reflect society's abhorrence of your actions and to deter others from seeking to resolve problems which they face in such a manner.

27 In the circumstances I sentence you to 18 years' imprisonment for the murder of Andrew Preston. I fix a non-parole period of 14 years. I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 762 days in custody.

1. [1] R v Storey [1998] 1 VR 359 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1 and R v Ramage [2004] VSC 508 at [25].