R v Mocenigo [2012] VSC 599

2 On 20 November 2012, I heard submissions from counsel on your behalf and on behalf of the prosecution as to the sentence to be imposed on you. I must now sentence you for this crime. The maximum penalty for murder is life imprisonment.

3 The offence of which you have been found guilty was committed in the following circumstances. You and Kristy-Lee Hall had begun a relationship after first meeting each other during 2007. At the time of you meeting the evidence suggests that Kristy-Lee Hall had a significant drug addiction problem. On 17 June 2008, a child of your relationship, Chloe, was born. In 2009, you, Ms Hall and Chloe moved to the premises at Clauscen Street, Heidelberg Heights.

4 For some time prior to her death, Ms Hall had apparently told family and friends that, in effect, her relationship with you had failed and she had no feelings for you. She apparently also said that she was only remaining with you for the sake of the child Chloe but also was suggesting that she wanted to live somewhere else and making some enquiries about doing so. Clearly there were problems in the relationship and you were aware that was the case.

5 Whatever she said, she demonstrated the truth of the failure of the relationship by commencing a relationship with a man called Ross Teazis who was an unemployed drug dealer. That relationship was current at the time of her death. Whatever other attractions Teazis had for Ms Hall, he supplied her with heroin and was doing so in the first part of 2011 and she was a regular user of that and other drugs.

6 On Saturday 26th March 2011, the evidence on your trial demonstrated that Ms Hall left the premises in which you were living at Clauscen Street to go out at about lunch time. Although she did not tell you this, she then met up with Teazis. In his evidence he said they met around midday, he having picked her up at the end of their street. After he picked her up they used heroin together. According to the evidence it may have been a couple of points of a gram. The evidence of the pathologist, Dr David Ranson, demonstrated that at the time of her death there were by-products of heroin and cannabis in her blood.

7 Teazis was with Ms Hall that day until around 6.00pm when he returned her to the vicinity of the Clauscen Street house. During that afternoon he had to meet with people in relation to various drug transactions he was conducting. He and Ms Hall went to several locations and at around 2.00pm went to a café in Kew called the QPO. Kristy-Lee Hall had apparently told Teazis she had arrangements to go out that night.

8 Whilst at the cafe, and in Teazis' presence, Ms Hall received a number of telephone calls on her mobile phone from you. The fact of these calls is verified by the call charge records. Teazis said in his evidence that he could hear you yelling over the phone but could not hear what you were saying. He said you would hang up and then ring Ms Hall back again. Teazis said there were more than five of these phone calls from you. At the end of the afternoon, he said he dropped her off at 6.00pm and gave her yet another point of heroin which he thought she told him she was going to use later on that night. The syringe which she was using was tucked into her underwear and a similar, if not the same, syringe was found when her body was later discovered.

9 I am satisfied that on her arrival at home you were very angry, that you and Ms Hall argued and, as the jury must have concluded, that you argued violently. As a result of the confrontation between you and, more particularly, as a result of your actions accompanied by an intention either to kill her or at least cause really serious injury, she died.

10 It is important to note that whatever the emotional aspect was to this confrontation, and I am sure there was one, the difficulties in your relationship with Ms Hall were not being revealed to you for the first time on this evening. The relationship had been in trouble for some time. She had been involved in the relationship with Teazis for some months since late 2010. By way of further example, the emotional problems between you had been on display to one of your neighbours some days before Ms Hall met her death when you were loudly confronting her verbally at the front of the premises. I am not able to say whether provocation played any part in your resorting to fatal violence. On such evidence as there is, there is nothing mitigating about the circumstances in which the jury have found that Ms Hall died.

11 After you had killed Kristy-Lee Hall, you decided on an elaborate deception of people who would become concerned as to her whereabouts. No-one had seen her or had any contact with her since she left Teazis at about 6.00pm on Saturday night. Your initial position was that she had left home either on Saturday night or Sunday morning and that you had not seen her since. You said you assumed she had gone off with some other man. I will return shortly to these matters.

12 Your trial was conducted on the basis that the incident which caused the death of Ms Hall did involve you but it was effectively accidental, that it occurred on the Sunday morning and that in fact no action of yours caused Ms Hall's death. It is true that, as Dr Ranson explained in his evidence, the exact means by which you caused Ms Hall's death cannot be accurately described but clearly the jury were satisfied beyond reasonable doubt that you did having reviewed all the evidence. It was also suggested that what occurred thereafter so far as your actions were concerned in lying about Ms Hall's whereabouts and concealing her body was the product of panic on your part.

13 Late on the afternoon of Monday 28 March 2011, two days after Ms Hall's death, police attended your home as the result of a report and you told them that Ms Hall was not there and that you had not seen her since 10.00am Sunday morning. They looked around the premises and noticed no sign of the body of Ms Hall, which may have been still there or you may have moved somewhere else. Certainly your conduct during that visit by police suggested you were very confident that they would not locate Ms Hall's body wherever it was. There is a significant prospect that by this stage you had moved her body away from the premises. Certainly you had decided to do whatever was possible conceal what you had done.

14 As a result of that police visit you contacted your friend James Pivato to see if you could stay at his house on that Monday night. He agreed and you were driven there by Aaron Taylor and Carlie Simons. On your account of the incident, it was Taylor who helped you with Ms Hall's body, first into the garden shed and then later into Stoney Creek at Kinglake. Taylor has been charged with assisting you and has yet to be dealt with on that matter.

15 On that Monday evening you told people you had not seen Ms Hall since Saturday night. Having arrived at Pivato's house you then found a pretext to leave again saying that you needed to dispose of some marijuana plants following the police visit that afternoon. The Crown case was that in the hour and half or so that you were gone you and Taylor went back to Heidelberg, obtained Ms Hall's body and then took it to where you concealed it at Kinglake in the Stoney Creek.

16 For myself, I am not sure whether you did that then or not. However, several things are clear. Ms Hall had been dead since Saturday night and wherever her body was, it was under your control. You told a number of lies about where she was and why she had left. At some stage between Saturday night and Tuesday, you and perhaps your friend Aaron Taylor placed the body of Ms Hall face down in Stoney Creek and concealed it. You had done that on or before Monday 28 March 2011.

17 On Tuesday 29 March you returned to Kinglake with Aaron Taylor and Carlie Simons claiming that you wanted to retrieve the marijuana you had put there to sell. By the time you got back to Kinglake on that Tuesday, the body of Ms Hall had, unknown to you, already been found by two people wanting to swim in the creek where you had concealed it. They notified the police. Between the time the body was first located and observed by police and then seen a second time by police, time had passed and you had been back to the scene, totally unaware of the police involvement. You re-covered the body with significantly more branches and other material to the point where, when the police officer who saw the body the first time returned, he thought it had gone. I am satisfied that the second visit to Stoney Creek was to further conceal the body.

18 By late on Tuesday 29 March 2011 you were in the company of police. You were first a witness in relation to the disappearance of Ms Hall and in that capacity you explained to one police officer, Senior Constable Meade, before being aware that the body of Ms Hall had been found, that the last time you saw Ms Hall was on the previous Sunday morning which you said was about 10.00am to 10.30am. You told Senior Constable Meade that she was not home on Saturday night and you were unaware as to where she went. Clearly that was a lie. You told similar lies to Senior Detective Williams from the Homicide Squad. Later, you were arrested and became aware that the body of Ms Hall had been found and so you began to tell police about an incident in which Ms Hall died accidentally.

19 In answer to police and also Dr Ogden who was examining you to establish whether you were fit to be interviewed, you gave some account of what occurred. You told Dr Ogden you were not a violent person and you did not mean to hurt Ms Hall. You also said you knew you had done a bad thing and you knew you were going to gaol for a long time.

20 You told other police that Ms Hall died on Sunday 27 March during an argument while Mr Taylor and Ms Simons were at your premises and outside. You suggested that Taylor came in and saw what happened and suggested that Ms Hall's body be hidden in the shed at the rear. In my opinion, save for the fact that Taylor assisted you in some way, none of this is true.

21 You also claimed that the body of Ms Hall was placed in the creek by you at Kinglake for reasons which I regard as fanciful - that you wanted her to be found and you wanted her family to have a place to grieve. You also claimed that you went back to the scene where the body was concealed and that further concealing of the body was done at the instigation of Aaron Taylor. You also blamed him for not going to the police and telling them what you had done.

22 This offence is, of course, a tragedy for the family and friends of Ms Hall and for you. You have combined a serious murder with a plan to deceive, purely for the purpose of concealing what you had done.

23 I received seven victim impact statements - they were from the following:

• Adele Hall, the sister of the deceased woman;
• Jenny Vea, the mother of the deceased woman;
• Dean Hall, the father of the deceased woman; and
• Kimberley Young, Marian Douglas, Belinda Fitzpatrick and Toby Ievoli, all friends of the deceased woman.

24 These statements highlight the tremendous loss that goes with the pointless death of someone so young. Ms Hall had led a difficult life and certainly had a problem with drugs. She had also been willing to lie about some relevant aspects of her circumstances but she was a young mother and her murder has affected the lives of those who produced these statements very badly. As often occurs, there is not only a sense of loss but a sense of frustration and futility at the death of someone so young whose life lay ahead of them.

25 I have taken these statements into account in the sentence I will impose on you.

26 It was submitted on your behalf that despite denying your involvement in deliberately killing Ms Hall you were remorseful about what had happened. I have no doubt you wish that what happened had not occurred. I am likewise sure that you are distressed by the fact that Ms Hall is dead but I am not persuaded that those expressions are expressions of remorse.

27 It is true that "[t]rue remorse or genuine regret for wrongdoing is capable of being expressed in more ways than simply pleading guilty and thereby admitting all the elements of the offence."[1] In my opinion, however, remorse is associated with actually accepting responsibility for your wrongdoing and you have not done that. The opportunities for you to demonstrate remorse arose from the time of Ms Hall's death and they were never taken. You lied about where she was and what had happened to her. You concealed her body and ultimately tried to do that in a way which would result in it not being found. None of your conduct demonstrates true remorse.

28 You were born on 3 December 1977 and you are an only child. You are 35 years old. At a young age your parents separated resulting in you being brought up largely by your mother. Your education was difficult and for reasons that are not terribly clear by the end of year 6 you remained unable to read or write although since adulthood you have been able to learn those skills. After that you had virtually no further education. Most of your time was spent with your mother at her employment at a hospital.

29 As a teenager, I am told you started using drugs and alcohol and moved between Melbourne where your father was and Queensland where your mother was.

30 As a young adult you obviously determined that you needed to improve yourself despite periods when your life was affected by alcohol or drugs. You did a horticulture course and also a business course. In the latter case that required you to travel to Seymour, usually by train, to complete the course notwithstanding an inability to spell or write properly. The result seems to have been that despite setbacks you have almost always worked despite your background.

31 As a young person you suffered from depression and that condition followed you into your adult life. I understand you also have a 12 year old son who now resides in New South Wales and with whom you had regular contact until your arrest.

32 Your prior convictions reflect difficulties with alcohol and driving. Since 1996 you have acquired 25 convictions from 12 court appearances. You have several prior convictions for assault, damaging property and assault in company but they were some 15 years ago and your record does not portray you as a violent person. Likewise, as Mr McMahon pointed out, the evidence at your trial did not suggest that your relationship with Kristy-Lee Hall was in any sense physically violent until the terrible events of 26 March 2011.

33 A report from forensic psychologist Tim Watson-Munro dated 19 November 2012 was relied upon as descriptive of your background which confirmed that you are depressed and given your circumstances that is hardly surprising. However, that depression appears to be a continuation of a condition that I accept you have suffered from for some time. You are being medicated for condition in custody. Mr Watson-Munro has concluded that you are not psychotic and drugs and alcohol do not seem to be relevant to your mental state. I accept that there is a degree of emotional frailty about you, although I suspect much of it was mainly connected with your fear of the consequences of what you had done.

34 This was the murder of a young woman and mother that has had devastating consequences for many people involved in her life. It has also had a terrible effect on your family. Many people are suffering.

35 The consideration of general deterrence is significant here. Members of the community must be reminded, and understand, that fatal violence in the home is not to be regarded as in some way less serious because it occurs against the background of a relationship.[2] You also need to understand that such serious offending carries very significant consequences for you.

36 The offence having been committed, what followed, being the concealment of Ms Hall's body and particularly its placement face down in a creek in a relatively remote area, is a significant aggravating circumstance. I am satisfied that you did what you did to conceal her body and protect yourself and whether or not, objectively judged, that was a good place to do it, I am satisfied that was your intention.

37 However, the evidence on which I act is to the effect that this murder was not planned and that what you did was done spontaneously in the face of the collapse of your relationship with the deceased and her apparent relationship with another man. It is also true, as I have earlier noted, that your relationship with Ms Hall had not previously been characterised by violence. I believe your prospects for rehabilitation are good.

38 In all the circumstances, on the count of the murder of Kristy-Lee Hall you will be sentenced to be imprisoned for a period of 22 years. I direct that you serve a period of 18 years before you are eligible to apply for release on parole.

39 Your pre-sentence detention is a period of 618 days and shall be reckoned as time already served. I direct that be entered in the records of the Court.

[1] R v Starr & Smith [2002] VSCA 180.

[2] Felicite v The Queen [2011] VSCA 274.