R v Potter [2012] VSC 511

Supreme Court of Victoria|2012-10-30|Before: ALMOND J

CRIMINAL LAW - Sentencing - Murder - Victim shot three times - Offender suffers from post-traumatic stress disorder - Whether the term of imprisonment would weigh more heavily on the offender due to mental impairment - Whether the term of imprisonment would adversely effect offender's health due to mental impairment - Mistreatment of the victim's body - No remorse shown by the offender - Sentence of 24 years imprisonment with a non-parole period of 20 years.

1 James John Nathan Potter, you have been found guilty of the murder of Penelope Louise Pratt. I must now sentence you for that offence.

Background to and circumstances of the offending

2 On 28 November 2010, Ms Penny Pratt was admitted to a psychiatric ward at the Maroondah Hospital as a voluntary patient. It was exactly six months since the death of her partner from a drug overdose. Ms Pratt told one of her friends who visited her at the hospital that evening that she intended to spend the night there.

3 At about 10.00pm that evening, you and your co-offender Aaron Gibson, went to Ms Pratt's residence in Boronia. When you discovered she was not at home you went to see Mr Flannery, her neighbour and friend, and enquired as to Ms Pratt's whereabouts saying that you had some money for her.

4 Mr Flannery told you that Ms Pratt was at the Maroondah Hospital, telephoned her in your presence and told her that you had some money for her.

5 You took the phone and had a short conversation with Ms Pratt. At the end of the conversation you gave the phone back to Mr Flannery and said you were on your way to see her.

6 A short time later, you arrived at the Maroondah Hospital and managed to enter the building. You spoke to the receptionist in the foyer who explained that you should not have been in the foyer because the doors were locked at 10.00pm. She asked you to leave. You asked to see your sister. You were demanding, forceful and swearing. The receptionist notified security and in due course two security guards attended at the reception area and asked you to leave the premises. You asked where you could find a phone to call your sister. You were told you were not allowed to go inside the hospital because it was after the time allowed, and after some discussion you were asked to step outside the hospital. Once outside, one of the security guards asked you for Ms Pratt's number, telephoned the number and said, "Your brother is here bringing some clothes. You will speak to him?" and handed the phone over to you. You then spoke with Ms Pratt in affectionate terms saying that you loved her, missed her and wanted to see her. According to one of the security guards you were talking in a friendly manner. From the manner of your movements and speech the security guard thought you appeared to be affected by drugs. The other security guard thought you were probably under the influence of drugs or intoxicated by alcohol.

7 Shortly afterwards at about 11.15pm, following her request and a psychiatric assessment, Ms Pratt was discharged from the psychiatric unit and left the hospital precinct with you and Gibson in Gibson's car.

8 Gibson drove to the unit where you were living in Dorset Road, Boronia. Whether Ms Pratt arrived there and then left or alighted from the car before it arrived at your unit is unknown. However, within a very short time of her discharge from hospital, Ms Pratt made telephone calls to the 000 emergency service. At 11.21pm, Ms Pratt rang 000 and said that she had been picked up from Maroondah Hospital, that "they're drink driving", that she wanted to go back to hospital, that she'll "walk back there and cop a beating" and that she just wanted the money she was owed. Ms Pratt identified two intersecting roads but the call ended without the operator being able to establish precisely where Ms Pratt was calling from. Several minutes later at 11.28pm, Ms Pratt rang 000 again and was asked, "where do you need police?". Ms Pratt gave an address and said, "they were supposed to give me the money I was owed", that she had just been picked up from Maroondah Hospital and that she was "in the vicinity of being heard". She mentioned "three blokes" and said to the operator "Trust me you want to get to this address". When asked by the operator to identify the people, Ms Pratt said, "James Potter or Mendes I don't know but, you're going to get me bashed". Later in the conversation, the operator asked whether Ms Pratt wanted her to send the police. Ms Pratt responded, "Yes" and said that she was hiding in the bushes answering the operator's questions.

9 At about this time, an acquaintance of yours, Mr Adrian Paul Krelekamp, arrived at the Dorset Road unit.

10 You opened the door for Krelekamp and invited him in. When Krelekamp arrived, Gibson was sitting in the living room. Krelekamp said it was obvious that you and Gibson were affected by drugs. Shortly afterwards, Gibson went outside the unit. Krelekamp heard loud voices, a female and a male yelling, but he could not hear what was said. You asked Krelekamp to go outside and tell them to come inside. Krelekamp went outside and saw Gibson and Ms Pratt close to the intersection of Alma Road and Dorset Road on the footpath yelling. Krelekamp asked them to come back inside. When they came back inside, Gibson and Ms Pratt were still arguing. Krelekamp said Penny wanted her money, there was a lot of swearing and a lot of yelling. Ms Pratt initially demanded her money from Gibson. Gibson told her to "shut the fuck up".

11 At this time, Krelekamp was sitting on one of two couches which were in the living room. You were sitting on the other couch. Ms Pratt started yelling at you, "Enough's enough, I want my money". Krelekamp said you were trying to calm her down by saying, "Don't worry about it, it'll be all right" and Ms Pratt was talking normally to you, not swearing. Gibson then produced a .22 rifle which had the barrel cut down and the stock cut back. He grabbed Ms Pratt with his right hand, grabbed the left hand side of her hair, swung the gun around and brought it up to the side of her face. At about that moment, Ms Pratt said, "You don't have to do this". Krelekamp gave evidence that you did not say anything or do anything at that stage. Then Gibson pulled the trigger and shot Ms Pratt. Ms Pratt put her hand up to the side of her head and said, "Take me to the hospital. I won't say anything". She took her hand away from the side of her head. There was blood on her hand. Gibson then said, "This is what you get when you fuck with us". Ms Pratt then sat down on the couch beside you. She said, "Take me to the hospital, I won't say anything. You don't have to do this, take me to the hospital". Krelekamp then said to you and Gibson that you were "fucking crazy". You told him to shut up.

12 Ms Pratt then stood up and went to walk away. Krelekamp said he thought she was going to leave.

13 Gibson grabbed Ms Pratt's arm and pushed her onto a chair beside the wall in the living room. He put the rifle to the side of her head and shot her in the head again. Ms Pratt remained in the chair, though she slumped down. In his evidence in chief at trial, Krelekamp estimated the time from the first shot to the second shot was probably a couple of minutes. Under cross examination, Krelekamp did not disagree that he had estimated 15-20 seconds at the committal hearing and after further questioning, said he couldn't be sure of the time which elapsed between the first and the second shot. After considering the evidence, I am satisfied that there was at least an interval of 15-20 seconds.

14 Gibson sat down beside you on the couch, still with the rifle in his hand. There was a discussion about what to do next. You said, "We'd better get her into the bathroom so she doesn't bleed everywhere". You and Gibson got up, took Ms Pratt by the arms and dragged her to the bathroom. Krelekamp stayed where he was. He did not move from the couch. You returned from the bathroom with Gibson and both of you sat down on the other couch. Gibson was still holding the rifle on his lap. Gibson said to Krelekamp, "This is what happens when you fuck with us Paulie".

15 Gibson said to you, something along the lines of either "Go in there and make sure she's dead" or "You'd better go finish it now". You got up, grabbed the rifle and went into the bathroom. Gibson remained sitting on the couch. Krelekamp heard the gun discharge. You returned to the living room, threw the gun down on the couch beside Gibson and sat down beside Gibson with the rifle between the two of you.

16 You then grabbed a stainless steel knife which was stuck upright into the table and returned to the bathroom. Gibson remained in the lounge room. A couple of minutes later Krelekamp heard you gagging. You came out of the bathroom and went to the kitchen and had a glass of water. Krelekamp said that the knife "was not dripping with blood or anything but... it wasn't as clean as it was when... [you] left". Krelekamp described you as pale and sweaty, looking like you were going to pass out. He recalls you said something along the lines of "The head's nearly off". Gibson got up, took an angle grinder from his backpack and went into the bathroom. You remained in the lounge room sitting on the couch opposite Krelekamp. Krelekamp said he heard the angle grinder going for a couple of seconds and then Gibson walked out with the angle grinder jammed up with hair.

17 You then said, "Nobody's leaving" and "If I go to gaol everyone's going to gaol, no-one's leaving the house. We have to get this sorted out". You and Gibson searched for spent cartridges. You then began to clean the unit. Gibson went into the bathroom. You cleaned the hallway floor and laundry areas. Krelekamp cleaned drops of blood from the walls.

18 You told Krelekamp that you were using his car to move Ms Pratt's body. You gave him a screwdriver so that he could remove a "sub-woofer" from the boot of his car. You directed that Ms Pratt's body should be put in the boot. You and Gibson went into the bathroom and wrapped Ms Pratt's body in a rug removed from the living room. You called Krelekamp over to give you a hand wrapping some tape around Ms Pratt's legs and wrapping some tape around the rug. Garbage bags were wrapped around Ms Pratt's head. You and Gibson then carried Ms Pratt out towards the car. Ms Pratt's body was further wrapped up in a sheet that you supplied and she was placed in the boot of Krelekamp's car which he had reversed into the car port. You took a shovel from the house which was put in the car.

19 You sat in the front passenger seat and directed Krelekamp to drive to central Victoria. Krelekamp refused and it was decided to drive to the Dandenongs. Eventually Krelekamp drove to bushland in Silvan Road, Olinda in the Dandenong Ranges National Park. Krelekamp and Gibson started carrying Ms Pratt's body into the bush. You took the shovel but dropped it somewhere and could not find it again. Ms Pratt's body was taken approximately 40 metres into the bush. She was placed behind a large tree and ferns and branches were put around her to conceal the body. It was decided to return the next day to bury Ms Pratt's body. On returning to the car, Gibson marked a red reflector on a white pole beside the road to indicate where the body was located. Krelekamp turned the car around, put the trip meter on to see how far you had driven down Silvan Road and drove back to your house in Dorset Road.

20 In the early hours of 29 November 2010, Krelekamp went to Safeway in Belgrave, purchased cleaning items, drove to a car wash at Tecoma and cleaned out the boot of his car. He used old clothes to wipe blood off the bumper bar.

21 A couple of days later, Krelekamp received a phone call from you about going for a drive to bury Ms Pratt. Krelekamp collected you and Gibson from your place at Dorset Road and you drove back to the bushland in Silvan Road. You searched for probably an hour and a half but could not find Ms Pratt's body. Krelekamp dropped you back to your place in Dorset Road. On a subsequent occasion, you and Krelekamp went back to try again. Krelekamp dropped you off and returned about an hour later. Again you were not able to find Ms Pratt's body. On that occasion you told Krelekamp that you would need to keep your mouths shut.

22 On Friday 17 December 2010, Krelekamp's vehicle was pulled over by an unmarked police vehicle. Police conducted a search. Inside the boot they found the clothing that Krelekamp had used to clean the back of his car and they found a plastic bag with blood on it. Two days later, Krelekamp attended the St Kilda Road Police complex to speak to the police about his involvement in the disposal of Ms Pratt's body. Krelekamp made a statement that day and took detectives to bushland in Olinda. After a short search, police located Ms Pratt's body.

23 On 1 December 2010, Mrs Julie Pratt, Penny's mother, reported her daughter missing. As a result of preliminary enquiries, police attended your home at Dorset Road, Boronia. You told the police that you had been to see Ms Pratt a couple of days earlier and that her neighbour had told you she was in the psychiatric ward at Maroondah Hospital. You denied having seen Ms Pratt.

24 In a police interview on 16 December 2010, the police advised you that Ms Pratt had not been seen since 28 November and that the police believed she had been killed. You told the police that the last time you saw Penny Pratt was on about 6 November and that you could tell the police nothing about her suspected death.

25 Dr Michael Burke, a senior forensic pathologist at the Victorian Institute of Forensic Medicine, conducted an autopsy on Ms Pratt's body.

26 The post-mortem examination revealed three gun shot injuries to the head. One injury was to the right side of the jaw with an associated comminuted fracture of the mandible. There was an injury to the left side of the head above the left ear. There was another gunshot injury which extended through the right eye shearing a bone from the base of the skull. There was a stab injury extending through the chest into the heart. Finally, there was a linear defect to the base of the skull. Dr Burke determined that the cause of death was multiple gunshot injuries with a stab injury to the heart.

27 At the time of the post-mortem examination, Ms Pratt's body was in an advanced state of decomposition and it was not possible for Dr Burke to confirm or refute whether there was an incised injury to Ms Pratt's neck. Dr Burke gave evidence that the gunshot injury to the left side of the head may or may not have been fatal; that the gunshot injury through the right eye would have been immediately fatal. Dr Burke gave evidence that the linear defect to the skull was consistent with an injury inflicted by an angle grinder. At the time of examination, Dr Burke found a piece of fragmented angle grinder disc matted within hair on the front of Ms Pratt's head. Dr Burke was unable to determine in which order the injuries had been inflicted.

28 The far-reaching consequences of your crime have been vividly revealed in victim impact statements provided by Ms Pratt's family.

29 Mrs Julie Pratt, Penny's mother, spoke of the terrible consequences to her family, particularly for Penny's two young children. Ms Pratt's sisters Melissa, Bianca and Nadine and her aunts Carolyn and Suzy, each provided compelling victim impact statements for consideration by the Court.

30 All speak of their profound sense of loss and grief. In these sentencing remarks I have not attempted to summarise the victim impact statements. To the extent that the contents are admissible, I have taken those statements into account. I have noted how confronting and painful the trial experience has been for family members who attended court.

31 Mr Potter you were born on 17 February 1986 in Victoria. At the time of the offence you were aged 24 years. You are currently 26 years old. You grew up in the Mildura region with your sister, who is two years younger than you. Your mother Elizabeth Potter and your father Darren Mendes separated when you were five years old.

32 After the separation, your mother formed a new relationship and had one daughter, your half-sister, who is now aged 17. You have instructed your counsel that your mother's new partner was violent towards your mother and yourself. After about five years the relationship ended. Your mother formed another relationship with a man with whom she had a son, your half-brother, who is now aged 12. You have instructed that this man was a particularly violent individual both to your mother and to his children, which I take to include yourself. You moved to Melbourne to live with your biological father at the age of 14.

33 You attended a number of different primary schools in the Mildura region. During your secondary education you attended Irymple Secondary College, Mount Waverley Secondary College and Highvale Secondary College in Glen Waverley. I was informed that you were not a particularly good student and there were issues on occasions including non-attendance and running away from home. You left secondary school during Year 9. Your father organised an apprenticeship for you as a tiler which you completed. You worked variously as a roof tiler and labourer for Eastern District Roofing, Eastern Roofing Contractors, Jackaroo Roofing, Heavens Roofing, Exact Plaster and Ozcan Concrete. Whilst you have had periods of unemployment and a period of incarceration, your counsel submits that you have worked for a reasonable period of time since you left school.

34 At the age of 16 you began to use amphetamines. Your usage increased and developed into daily dependence, including intravenous use of amphetamines. At the age of 22, you began using heroin intravenously and became a significant user. You have also used cocaine, ecstasy, benzodiazepines and, at times, a significant amount of alcohol.

35 In terms of your personal relationships, at the age of 18 you formed a relationship with Vanessa Fielding. You were both heavy drug users. The relationship continued until she went to live in Tasmania. You then formed a relationship with Bianca Clarkson. You were both dependent on drugs. You had two children together, your daughter who is now aged five and your son who was born after you were remanded in custody. Your daughter is in permanent foster care and you do not see her. On occasions your son is brought to see you.

36 You have made one attempt to overcome your drug difficulties by undergoing nine days of detoxification at Wellington House in your early 20s. This proved to be unsuccessful. Your counsel has not sought to put your drug use forward as a mitigatory circumstance, rather it was submitted as relevant background.

37 You have consulted Dr Cunningham, forensic psychologist, for a psychological assessment.

38 In your consultation, you reported nightmares, difficulty sleeping, night sweats and flashbacks of prior violent abuse. You were characterised as having an unstable mood with features of depression and anxiety.

39 Dr Cunningham concluded that you meet the diagnostic and statistical manual of mental disorders (DSM-IV) criteria for post-traumatic stress disorder (PTSD) and substance use disorder; that you had been exposed to trauma in which you felt intense fear and helplessness which you re-experienced through recurrent and intrusive distressing recollections of the events. Dr Cunningham states that you persistently avoid stimuli associated with the trauma and a numbing general responsiveness in the form of efforts to avoid thoughts associated with the trauma, diminished interest and participation in activities and feelings of detachment and estrangement from other people; that you experience difficulty sleeping and difficulty concentrating. You exhibit pervasive mistrust and hypervigilance, not solely explicable to the gaol environment because the symptoms appear to be longstanding.

40 In Dr Cunningham's assessment, your substance use disorder began as a method of coping with your symptoms of trauma and that it escalated into significant polysubstance abuse and that your offence behaviour occurred in this context and in the context of negative peer associations. Dr Cunningham states that you have not engaged with significant mental health treatment for your post-traumatic stress disorder. In Dr Cunningham's opinion, if your post-traumatic stress disorder is left untreated a term of imprisonment would weigh more heavily upon you compared to an individual without PTSD and that the prison environment may aggravate your experience of trauma. According to Dr Cunningham, ongoing long term engagement with psychological, psychiatric and drug and alcohol intervention would positively predict rehabilitation.

41 Senior counsel for the Crown submitted that I should place little or no weight on the opinion of Dr Cunningham, that the history you gave was self-serving and there was no clear probing by Dr Cunningham about what you told him; it was submitted that unfortunately the prison population is full of people with dysfunctional backgrounds and that it was a quantum leap to say that if you did have post-traumatic stress disorder, it would weigh more heavily upon you compared to another individual without it in the prison population.

42 I reject the Crown's submissions on this point for the following reasons.

43 First in applying the relevant principle distilled in Verdins case, the test I must apply is a comparison between the offender and a person in normal health, not a comparison between the offender and a person in the prison population.[1]

44 Second, Dr Cunningham was a qualified and experienced forensic psychologist. His academic qualifications included a doctorate in forensic psychology from Deakin University and honours degrees in psychology and psychophysiology. His work as a psychophysiologist included specialist training and research into psychopharmacology and the neurophysiological correlates of criminal behaviour. He has conducted research into the assessment of risk and rehabilitation. He has completed over 2,000 psychological assessment reports and his assessments include testing for the presence of mental impairment, intellectual disability, acquired brain injury and malingering. He has appeared as an expert witness in courts and tribunals.

45 Third, under cross-examination, Dr Cunningham denied that he did not probe or question you about the things you were telling him. He found there was a level of consistency between the symptoms you were reporting and that if you were someone making up a diagnosis, then you would have had to have made up a cluster of symptoms that occur together.

46 Fourth, in my assessment, Dr Cunningham sought to be objective. His evidence was not all favourable to you. At various times he said that you seemed to minimise your role in certain behaviours, including your role in the dysfunction of your personal relationships and there was no solid evidence of you taking responsibility for committing the offence. He agreed that you did not mention that you were sorry for what happened. In particular, he testified that he did not link your mental state or your trauma to the offence. Nor did he paint a particularly rosy picture of your future. He assessed your risk of future violent offending as moderate.

47 Overall, I have formed the view that Dr Cunningham's evidence should be accepted. Whilst his assessment suffers because there is no independent evidence of your personal circumstances,[2] on balance I accept it. The symptoms described by you are consistent with his diagnosis and the history you gave him.

48 I therefore accept that if your PTSD is left untreated, a term of imprisonment would weigh more heavily upon you compared to an individual without post-traumatic stress disorder, and that there is a serious risk that imprisonment will have a significant adverse effect on your health. Specifically, through your counsel, you do not rely on the Verdins principles one to four.[3]

49 Dr Cunningham concluded that you would benefit from mental health treatment in gaol and that long term engagement with psychological, psychiatric and drug and alcohol intervention would positively predict rehabilitation.

50 This conclusion about your prospects for rehabilitation is significantly qualified. Your prospects for rehabilitation are dependent upon you making yourself available for treatment and engaging in that treatment. At this stage, you appear disengaged and lacking insight into your offending behaviour.

51 I was informed that whilst in prison you have undertaken a course in occupational health and safety, a risk of re-offending course and a drug and alcohol course. In attending those courses, you have demonstrated a capacity to engage at some level. Dr Cunningham has given evidence that mental health intervention may be sourced whilst you are in prison through Forensicare, along with drug and alcohol intervention through DirectLine or The Salvation Army. I encourage you to seek out and obtain the benefit of such intervention. Unless you do so, I consider your prospects for rehabilitation are only fair.

52 Your personal circumstances and your criminal history to date do not suggest to me that you are beyond redemption. I also note that some days after the murder you exhibited a glimmer of decency when you told Krelekamp that "you needed to do the right thing" and bury Ms Pratt's body. One factor which Dr Cunningham described as a protective factor is the fact that your family remains supportive and your sister and half-sister have visited you in gaol. You are relatively young and I am conscious that the sentence I impose should not stifle your prospects for rehabilitation.

53 The offence of murder carries a maximum penalty of life imprisonment.[4] I have had regard to current sentencing practices, including statistics as to the average length of sentence and the median length of sentence for this offence.[5] I note that the sentencing statistics serve as a general guide, but do not distinguish between sentences imposed after a plea of guilty and those imposed after a contested trial.[6] I invited and considered submissions made by the Crown and the defence in relation to an appropriate sentencing range.

54 Your co-offender Gibson has been sentenced to 22 years' imprisonment with a non-parole period of 19 years. It is necessary that I have regard to that sentence for reasons of consistency. I have given careful consideration to the factual circumstances of the crime and the fact that in sentencing Gibson, the Court took into account as mitigating factors an early guilty plea, remorse, the fact that Gibson had no prior criminal history or history of violent behaviour and other matters relevant to Gibson. These factors are not applicable in your case.

55 I have been unable to distil any remorse for your actions.

• There was no remorse shown for what happened to Ms Pratt after she was initially shot. She pleaded to be taken to hospital and you did nothing.

• In the immediate aftermath of the murder, you methodically went about cleaning the crime scene and then disposing of Ms Pratt's body, all of which was calculated to avoid detection.

• Subsequently, you spoke to the witnesses Mr Pividor and Mr Dixon about what you had done without apparent remorse.

56 I am satisfied that you are unwilling to take responsibility for your actions. In particular, I note that in your consultation with Dr Cunningham, you said you felt helpless because you let the offence occur. I accept Dr Cunningham's evidence that during the consultation with him, you did not elaborate on your role in the offence or take responsibility for your crime.[7]

57 I also note that your plea has not been put on the footing that you are remorseful for your actions. Accordingly there is no scope for mitigation in this respect.

58 After Ms Pratt had suffered the fatal gunshot injuries, you mistreated her body by stabbing her in the chest and cutting her throat.

59 You were the driving force in relation to the disposal of her body. You directed Krelekamp to provide his vehicle for this purpose and directed him to drive to a remote location, initially central Victoria, then the Dandenong Ranges, where Ms Pratt's body was left unprotected in the open and well away from the road so that it would not be easily discovered. This conduct reflects a callous disregard for your victim and for her family and a high degree of moral culpability for your crime.

60 The mistreatment of Ms Pratt's body by the infliction of further injuries after her death and the unceremonious disposal of her body in bushland are aggravating features of your crime.[8]

61 At trial, the Crown put the case against you on two alternative bases: either that you were acting in concert with Gibson or aiding and abetting him in the murder from start to finish; alternatively that you were doing so at least by the time of the second gun shot being fired by Gibson. After careful deliberation, I accept the submission put by your counsel that you should not be sentenced on the basis that at the time Ms Pratt was picked up from the hospital there was an understanding or agreement in place between you and Gibson for the offence to be carried out. I propose to sentence you on the basis that your complicity in the murder occurs at least by the time of the second gun shot and that the relevant aggravating features of your crime occur after that point.

62 Whilst your prior criminal history is not extensive, there are relevant matters which I must take into account. In 2008, at the age of 22 years, you were convicted of theft, theft of a motor vehicle, failure to answer bail and common law assault. Later in 2008, it appears that you were again convicted of theft and theft of a motor vehicle, discharge of a missile to cause injury or danger arising from your actions in throwing a can of brake fluid out of a vehicle at a pursing police car. Your counsel informed the Court that you are "somewhat vague" in relation to whether these charges involved a separate theft of a motor vehicle or whether they came about because of a breach of a community based order.

63 In 2009, you were convicted of robbery, contravention of a family violence intervention order and failure to answer bail.

64 Your counsel submitted to the Court that your partner, Bianca Clarkson, had taken out the intervention order. Although you admit that you did attend the house where you had been living with Bianca Clarkson in contravention of the order, I was informed that the contraventions did not involve any violence towards Bianca Clarkson. In this context, your counsel drew my attention to the fact that you were fined in relation to the breach of the intervention order which he submitted, and I accept, gives some indication of the lesser severity of those breaches.

65 Overall, it was submitted that your criminal record is consistent with someone who has a drug problem and is seeking to gain items or money that can be used to obtain drugs and that it is consistent with having a tempestuous relationship with Bianca Clarkson. I accept these submissions. I note that your prior criminal history shows recent offending conduct. I accept the Crown's submission that specific deterrence should be given some weight. Unfortunately, there is no additional evidence before the Court which would show redeeming qualities in your character which I might have been able to take into account.

66 A just punishment for your crime also involves general deterrence. Other members of the community must be deterred from committing offences of the same or similar character. This is a serious example of the crime of murder. It was perpetrated in an extremely callous manner on a person who had done you no harm and was no threat to you. It warrants a severe punishment to appropriately manifest denunciation of conduct of this type. I entirely concur with Williams J who, when sentencing your co-offender Gibson, characterised the crime as "a serious example of a serious offence involving shockingly callous treatment" of your victim. In my opinion that characterisation applies equally to your crime.

67 Taking all matters into account, I sentence you to 24 years imprisonment. I fix a non-parole period of 20 years.

68 Pursuant to s 18(1) of the Sentencing Act 1991 I declare that a period of 682 days during which you have been in custody, including today, be reckoned as a period of imprisonment already served under the sentence I have imposed.[9] I order that this declaration be noted in the records of the Court.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 11 [32] Item 5.

[2] Dr Cunningham also conducted a brief telephone interview with the prisoner's step-father, although there is no evidence of the content of any information obtained from this source.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 11 [32].

[5] e.g. Sentencing Snapshot 109 published by the Sentencing Advisory Council in May 2011.

[6] Saleh v R [2012] VSCA 210, 3 [13] (T Forrest AJA; Neave and Weinberg JJA agreeing).

[7] I note that you did plead guilty at trial to the lesser offence of being an accessory after the fact.

[8] DPP v England [1999] VSCA 95; [1999] 2 VR 258, 265-267 [22]-[27], [30]-[31] (Brooking JA; Batt and Chernov JJA agreeing) ; DPP v Gibson [2012] VSC 363, 12 [59]-[60].

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Judgment (83 paragraphs)

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