R v Stone [2019] VSC 452

2 The maximum penalty for murder is life imprisonment.

3 The motive for your particularly callous crime remains somewhat opaque, but it must find its roots in your relationship with Mr Reid.

4 You first met him when you were just 13 years of age. He was some five and a half years older than you. You later commenced a relationship and, between 1997 and 2008, that relationship produced five children. The family moved regularly. By 2016, the Bendigo suburb of Long Gully had come to be your home. At the time of his death, Mr Reid resided there with you and the youngest three of your children.

5 When later interviewed by police you said that you loved Mr Reid. You said that while there was occasional yelling, there was never any violence in your home. But, other evidence led in the trial is to the contrary.

6 Mr Reid's mother gave evidence that in November 2016 she received a reverse charge phone call from her son in which he told her that you had chased him down the street with a knife and that he was locked out of the house without his mobile telephone, keys or wallet. He said 'I'm really scared mum. I'm in fear of my life'. Mr Reid's stepmother also gave evidence, stating that on the afternoon of the day he died, Mr Reid visited her and said that he was going to leave you. She, together with her daughter, visited your home the evening of the same day. Again Mr Reid said that he was leaving and made arrangements to go and stay with his stepmother later that night. It is unclear whether he communicated that intention to you.

7 Two neighbours who lived next door to you gave evidence that during the three months prior to your offending, they frequently heard yelling, from both a man and a woman, coming from your house. On 18 December 2016 they each heard yelling and sounds consistent with physical fighting. Others passing your house on that evening also reported hearing a very loud argument.

8 Whatever your true motive was and whatever the exact trigger for your actions might have been, towards midnight on that December night, Mr Reid was on the back porch of his home. You doused him in a mixture of toluene and xylene, an enamel thinner, from a can routinely kept in your shed. You then ignited the highly flammable liquid.

9 Mr Reid's resulting injuries were horrific. He sustained burns to 95 per cent of his body, including his airways.

10 The fire burned intensely for several minutes. Your 16-year-old daughter later told police that she saw her father engulfed in flames and running inside to the bathroom and into the bath, which was partly filled with water. Her father told her that he was going to die. Your 11-year-old daughter later told police that she heard the smoke alarm, came out of her bedroom and then saw a trail of ash, smoke, burnt carpet and burnt clothes leading to the bathroom.

11 Emergency services were alerted by a call made by a neighbour after your 11-year-old daughter ran across the road screaming that her dad was on fire. Country Fire Authority and Ambulance Victoria units arrived a short time later. A small residual fire near the rear porch was extinguished.

12 Mr Reid was found in the bathtub. He was conscious. He could only have been in agony.

13 After some initial treatment and with some difficulty due to the nature of his injuries, paramedics placed Mr Reid in an ambulance and transported him to Bendigo Base Hospital. He remained conscious throughout that journey. En route he told a police officer in the ambulance that he was attacked by a man, whose name he did not know, but who had, with two others, attacked him and you a couple of weeks prior.

14 Mr Reid's condition was critical and a decision was made at Bendigo Base Hospital to airlift him to the specialist burns unit at the Alfred Hospital in Melbourne. He was, at that stage, placed in an induced coma. Mr Reid's injuries were non-survivable. His life support unit was turned off and he died in the Alfred Hospital Intensive Care Unit on the afternoon of 19 December 2016.

15 A later post mortem examination established the cause of death to be 'the effects of fire - extensive severe burns'.

16 The crime scene was examined on the morning of 19 December 2016. The seat of the fire was established to be the rear porch and sooting on the ceiling established that Mr Reid was still alight as he made his way from the back door to the bathroom. A fuel can containing a toluene/xylene mixture was found discarded in an adjacent neighbour's yard. A red lid from a fuel can was found inside your house on the dining room floor.

17 Upon your first contact with emergency services workers, you gave a false version of how Mr Reid came to be burnt. You repeated that version to Mr Reid's family, the media and the police. The real wickedness of that falsity is that you named the man you claimed to have witnessed throwing fuel over Mr Reid and igniting it with a cigarette lighter. Indeed in a sworn statement to police on 20 December 2016 you said that you and Mr Reid confronted Jason Baxter and 'Gibbo' near the shed in your well-lit backyard, while a third man was loitering near the side gate. You claimed this was after you heard Jason Baxter threaten to rape you and your children. You said that after an argument, both you and Mr Reid were doused in fuel before Mr Baxter set Mr Reid alight.

18 You told police that the same three men had previously attended your address and threatened you after an incident at the Long Gully Splash Park. On 27 November 2016 there had been an incident between children at that park. The son of Benjamin Thatcher and the daughter of 'Gibbo' (Paul Gibson) made an allegation against your son. The incident between the children and the subsequent confrontation at your house involving Mr Thatcher and Mr Gibson were both reported to police, but all parties declined further police involvement.

19 As a direct result of your false information, Mr Baxter, Mr Gibson and Glenn Anderson were arrested on suspicion of murder. When interviewed, all denied involvement.

20 On 20 December 2016 you failed to identify either Mr Gibson or Mr Baxter from photo boards. Your verbal description of Mr Gibson did not refer to the white shoulder-to-wrist plaster cast on his left arm that was plainly visible in contemporaneous photographs and CCTV footage of him. Your description of Mr Baxter was not consistent with his actual appearance. It was consistent with the appearance of Mr Thatcher. When then shown a photo board containing an image of Mr Thatcher, you positively but incorrectly identified Mr Thatcher as Jason Baxter and said that Mr Thatcher was the man you had seen in your backyard on two occasions and, specifically, as the man who threw fuel on Mr Reid and you.

21 But Mr Thatcher was in custody in Melbourne on 18 December 2016. And evidence led at the trial established that Mr Baxter and Mr Gibson were both elsewhere at the relevant time. Further, no trace of flammable liquid was detected on their clothing, nor on yours. Further still, the minor burn injuries that you suffered were inconsistent with your statement that both you and Mr Reid had been doused in fuel by Mr Baxter and that you were standing next to Mr Reid when he was ignited.

22 You were arrested on 4 January 2017. During a lengthy interview you maintained your false account that you had seen Mr Baxter, Mr Gibson and another man in your backyard and that you had witnessed Mr Baxter dousing Mr Reid in fuel and igniting him.

23 I have received and considered eight victim impact statements in this matter. They are deeply affecting.

24 Mr Reid's mother speaks of the almost unbearable grief of having to bury a child. The family photographs she shares depict her as a young mother with three grinning children, a family of three grown children with their proud parents, all still smiling, a family group in which you are included, and a beautiful image of Mr Reid and his young son. When these images were captured it was unimaginable that Mr Reid would die so brutally at your hand.

25 The contrast between the Darren Reid observable in the photographs and his mother's and sister's descriptions of their last image of him, so burnt and disfigured as to be unrecognisable, is one of the lasting cruelties of your behaviour.

26 Mr Reid's mother, brother, sister and her partner all speak of shattered lives: withdrawal from society, obligations and even each other. The personal and financial toll for them is high. Mr Reid's nephews, the youngest who is now just 12 years of age, all speak of missing a fun and loved uncle. And, your actions have created a chasm between Mr Reid's five children and his wider family.

27 In short, the fact and manner of Mr Reid's death weighs heavily on his family. Quite simply they are shattered.

28 Your offending is a most serious example of murder. The objective gravity of your conduct and your moral culpability for it are extremely high.

29 I find the following factors to be relevant to that characterisation.

30 First, the manner in which you murdered Mr Reid was vicious. You knowingly poured a highly flammable liquid on Mr Reid. You could not have been ignorant of the unbelievable terror and pain you would unleash upon him the moment you ignited the fuel. As the Court of Appeal has stated:

[I]t would be a futile exercise to attempt to imagine a death that more appals the conscience than death by burning. It is a form of death likely, in common knowledge, to be accompanied by extreme pain ... [It has been] aptly described ... as a form of death 'so brutal as to be beyond the understanding of most civilised human beings'.[1]

31 Your behaviour was barbarous. Mr Reid remained conscious throughout the ordeal. He was conscious as he was on fire and for the 30 minutes he was in the bath prior to arrival of the paramedics. He remained conscious as his clothes, which had burnt into his skin, were cut from him, as he was wrapped in glad wrap and placed in a wheelchair, and as he was transported to Bendigo Base Hospital. His last conscious hours were of agony and passed in the belief he would die.

32 Second, Mr Reid was your partner of some decades and the father of your five children. Whatever the state of your relationship in December 2016, whether you knew Mr Reid was going to leave or not, however angry you might have been, Mr Reid had a right to be safe in his own home and, above all, to be safe from violence from you. Your actions are a violation of the sanctity of the home and a massive breach of trust. Domestic murder is abhorrent.[2] It is the ultimate act of family violence.

33 Third, your merciless conduct towards your intimate partner occurred while two of your daughters were home.[3] They were aged just 16 and 11. You were utterly indifferent to the effect your brutal act would have upon them. While neither saw you commit the murderous act, each witnessed the distressing immediate consequences of it. Your 16-year-old saw her father, engulfed in fire, pass through the house and into the bath. She heard him say that he would die. Your 11-year-old saw the trail of burnt debris that Mr Reid had left as he made his way to the bathroom. At that age she had to run to a neighbour to say that her father was on fire and ask for help.

34 And, although neither had witnessed the actual incident, your two daughters both told police that Jason Baxter had caused the fire. The only reasonable inference to draw is that they did so under your influence.

35 Fourth, your extensive and elaborate lies blamed named individuals for the murder.[4] To deny your own guilt is one thing. To maliciously nominate others as responsible is wicked in the extreme. It is to be emphasised that you did not simply suggest that unknown others were responsible. You named them and said that you witnessed Mr Baxter set Mr Reid on fire as Mr Gibson stood by and a third man was present. On your word, three men were arrested, held in custody and interviewed. Police resources were unnecessarily spent. You spoke with a journalist, following which a newspaper article was published that repeated your claims that three men had turned up at your home on 18 December 2016 making threats to kill and sexually assault your family, before dousing you and Mr Reid with petrol and lighting the petrol on Mr Reid.

36 As I have said, while in the ambulance Mr Reid told a police constable that three men were responsible for his injuries. The jury were directed that they could not return a verdict of guilty unless satisfied that the Crown had excluded beyond reasonable doubt the reasonable possibility that Mr Baxter or someone else was responsible for the death of Mr Reid, and also satisfied beyond reasonable doubt, on the basis of all the evidence, that you were responsible for his death. It follows that the jury must have reasoned that the accounts given by you and Mr Reid were not truthful. While one may speculate why Mr Reid gave that account, and whether it may have been to protect you or his children, the fact of and reason for his statement is irrelevant to the sentence to be imposed upon you. Both as Mr Reid was dying and afterwards, you were vociferous and malicious in the laying of your trail of deceit.

37 It is necessary to say something about your personal circumstances. It is difficult to do so, as scant material has been presented to the Court.

38 You were born on 21 July 1977. You were 39 years old at the time you killed Mr Reid. You are now 41 years of age. A psychiatric report of Dr Leon Turnbull notes that you grew up in West Heidelberg as one of six children. Your father was a tram driver. Your mother was a homemaker. Your childhood was untroubled, but the economic situation of the family was tight. You believe that two of your siblings now suffer bipolar disorder and battle illicit drug use. You finished high school and completed a massage course. You had your first child at age 21. As I have already noted, you had been in an intimate relationship with Mr Reid since the early 1990s and together you had five children. It can be inferred that money was often scarce. You experienced a brief period of homelessness in 2016. You have a minor and irrelevant criminal history.

39 You deny any issue with drugs or alcohol. You suffer no psychiatric or psychological condition. Since being in custody, you have developed some mood disturbance and have been prescribed an anti-depressant medication. You attend psychological counselling sessions with Dr Delene Brookstein. The nature of those sessions was not explained.

40 No other information about your background or family has been provided. I have been given no information as to the custody and care of your three children who are still under 18 years of age, nor indeed any information as to the situation of the eldest two. There is scant information as to your relationships with your wider family. You have the support of your mother, who attended Court throughout your trial. No character references were tendered.

42 Given the extremely grave nature of your offending and the high degree of moral culpability you bear, it is incumbent upon me to express the condemnation of our community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. The deliberate taking of human life can never be regarded as anything other than a matter of the utmost seriousness. And yours is a particularly serious example of murder. Denunciation of your conduct is a primary sentencing consideration. So too is deterrence, both of you and of others who would destroy life through violence. Protection of the community is also relevant.

43 Your actions were despicable. For no obvious reason, you ended the life of the man you say you loved in an excruciating manner, making him suffer unimaginable pain and fixing him with the belief he would die. You did so in the sanctity of the family home and while two of his children were close by. You invented a patently false story and perpetuated it as far and wide as possible, thereby ensnaring three innocent men in a murder investigation.

45 I find assessing your prospects for rehabilitation to be a very difficult exercise. As I have noted, I have scant information about you. On the basis of the limited information I have, I characterise these prospects as not bad.

46 Notwithstanding the gravity of your offending, the Crown does not submit that a head sentence of life imprisonment is warranted. I agree. I have been referred to a number of authorities to assist me with the principles relevant to this sentencing exercise, if not the appropriate range of sentences.[5] I have considered the Sentencing Advisory Council Sentencing Snapshot.[6] I have had regard to current sentencing practices.

48 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 ('the Act') and having regard to the matters I have just discussed, for the offence of murder, I sentence you to 34 years' imprisonment. You must serve a minimum of 28 years before being eligible for parole.

49 I declare that you have already served 919 days (not including today) of that sentence by way of pre-sentence detention.

50 I make the disposal order in the terms sought by the Crown.

[1] Hopkins v The Queen [2015] VSCA 174, [28] (per Redlich JA).

[2] See Felicite v The Queen [2011] VSCA 274; (2011) 37 VR 329, [20] (per Redlich JA).

[3] See DPP v Nguyen [2010] VSCA 31.

[4] The Queen v Bangard [2005] VSCA 313, [16].

[5] DPP v Paulino [2017] VSC 794; R v Banek [2017] VSC 11; DPP v Browning [2016] VSCA 153; DPP v Daing [2016] VSCA 58; Hopkins v The Queen [2015] VSCA 174; McPhee v The Queen [2014] VSCA 156; Felicite v The Queen [2011] VSCA 274; (2011) 37 VR 329.

[6] Sentencing Advisory Council, Sentencing Snapshot: Murder, No 223, April 2019.