R v Stott & D'Elio [2026] VSC 24

SENTENCE (KS) - As planned with DD, KS involved in kidnapping and assault of CG as retribution for informing police on TM - Manslaughter by KS limited to agreement that DD would assault CG by unlawful and dangerous act with retributive motive - KS told DD to "pull up" when he was assaulting CG - Serious instances of kidnapping and manslaughter - KS aged 37 at time; 40 now - Relatively modest criminal history (no priors for violence) - Offered to plead guilty to manslaughter before trial - Conceded to jury guilty of kidnapping - Remorse - Prison likely to weigh more heavily on KS than others because of mental conditions - Particular hardship of custodial conditions - Extra-curial punishment in having murder and burning CG's body and Territory hanging over head until verdicts - Good prospects of rehabilitation - Importance of general deterrence, just punishment, denunciation and rehabilitation - Less weight to specific deterrence and community protection - Parity - Totality - Mercy - Sentenced to imprisonment for five years on kidnapping and nine years on manslaughter - With cumulation, TES of ten years' imprisonment - NPP of six years - Crimes Act 1958 (Vic), ss 5 & 320; Sentencing Act 1991 (Vic), ss 5, 11 & 18.

SENTENCE (DC) - DC sentenced last year, prior to co-accused, because eligible to apply for parole forthwith - Imprisoned for three years on kidnapping and two years on plea of guilty to unrelated arson - With cumulation, TES of four years' imprisonment - NPP of two years and four months - See R v Clarke [2025] VSC 794.

1 Luck had not kissed Charlie Gander hello. On a mid-November afternoon in 2022, he was just visiting his friend Tyson May when police came knocking. They were there to check whether Mr May was complying with his firearm prohibition order. He wasn't. In a panic, Mr May hurriedly foisted upon Mr Gander a shopping bag with a homemade gun inside it and told him to get rid of it, quick smart. However, moments later, police caught Mr Gander - red-handed - tossing the gun over the fence. In the result, he and Mr May were each arrested and later charged with being a prohibited person in possession of a firearm.

2 But Mr Gander's luck went from bad to worse. When interviewed back at the station, police pressed him to tell them where he got the gun. It is all too obvious, from both his tone and his pained expression, that Mr Gander - an open-faced, callow 19-year-old - did not want to give up his friend. Sensing his unease, the police suggested that he might prefer to make a written statement instead of telling them in an audio-visual recording. Notwithstanding the incongruity inherent in that idea, the guileless Mr Gander went even further and ended up doing both. Tragically, in taking this course, he unwittingly set in train a series of events that led to his terrible demise.

3 For, the next day, Mr May's friend Kylie Stott and her friend Dimitri D'Elio watched a recording of Mr Gander's police interview. They were incensed that he had dobbed on Mr May, and determined to teach him a lesson, although not immediately. In fact, despite earlier talk of meeting him in Benalla, it was over a month later, on the night of 23 December, when, for the purposes of a drug deal but also with violence on their minds, Ms Stott and Mr D'Elio met Mr Gander at his cabin in a holiday village in Shepparton. However, it was not until the early hours of the next morning, Christmas Eve no less, when at the home of Danny Clarke (but in his absence), that Ms Stott and Mr D'Elio began to act on their plan to kidnap Mr Gander and rough him up as punishment for his snitching.

4 But far worse was to come. For not only did Mr D'Elio, pursuant to his agreement with Ms Stott, bind Mr Gander with duct tape, force him into the boot of his car, drive him in that state to another location, and assault him while there over a period of two hours, but he also went well beyond that agreement and ended up murdering him, although it is not clear precisely how, when, or where.

5 What is more, as if kidnapping and murder were not enough, Mr D'Elio tried to cover up his involvement in that offending by incinerating not only the Ford Territory Mr Gander had been driving, but also his body, which he had placed in the front seat of the vehicle before setting it alight. Dreadfully, after the fire had done its work, there was very little left of Mr Gander, certainly nothing recognisable. Only DNA comparison could identify him. It was a grisly scene, and a horrible thing to do.

6 Ms Stott, Mr D'Elio and Mr Clarke were all arrested six days later, on 30 December 2022. They were charged with kidnapping Mr Gander,[1] murdering him,[2] and arson of the Territory.[3]

7 In the middle of last year, after the matter was transferred from Shepparton, the three accused were tried jointly here in Melbourne before a jury.[4] Each accused pleaded not guilty to each charge. The Crown case was that all three were involved[5] in the kidnapping and murder of Mr Gander and the burning of the Territory with his body inside it. The motive for the offending was said to be retribution for Mr Gander's snitching to police on Tyson May.

8 In "cut-throat" defences, Mr D'Elio gave evidence mostly exculpating himself and implicating Mr Clarke and Ms Stott, whereas Mr Clarke gave evidence mostly exculpating himself (and Ms Stott, in part) and implicating Mr D'Elio (and Ms Stott, in part). Ms Stott did not give evidence.

9 It is likely that, in the main, the jury acted on Mr Clarke's evidence, for they found Mr D'Elio guilty of kidnapping, murder and arson; Ms Stott not guilty of murder and arson, but guilty of kidnapping and manslaughter; and Mr Clarke not guilty of murder, manslaughter and arson, but guilty of kidnapping.

10 At a joint plea hearing in December, I received heartfelt victim impact statements from Mr Gander's family, submissions on the sentencing facts I should find, a plea in mitigation on behalf of each accused, and a response to each plea by the Crown.

11 I adjourned Mr D'Elio and Ms Stott's matters until today for sentence, but sentenced Mr Clarke alone on 15 December for his role in the kidnapping and for an unrelated offence of arson committed on the same night. I took this course for two reasons. First, at that stage, I was in a position to sentence Mr Clarke, but not Mr D'Elio or Ms Stott, as I required more time to determine significant factual findings and their particular sentences. Second, given the sentences I had determined to impose on Mr Clarke, he was eligible to apply for parole immediately. Thus, every day I delayed sentencing him was a day he might have been released on parole.[6]

12 I shall announce Mr D'Elio and Ms Stott's sentences at the conclusion of these reasons. Necessarily, I shall be repeating some of the things I said when sentencing Mr Clarke. Both sets of reasons should be read together.

13 I turn, then, to a summary of the relevant facts as I have found them, commencing with something about each of the four protagonists.

14 While this story ended with a ghastly scene befitting a Stephen King novel, at the beginning, Mr Gander and the three accused might have been sympathetic characters in a Ken Loach film.

15 Charlie Gander was born on 31 August 2003. As I have said, he was therefore only 19 at the time of his death early on Christmas Eve 2022.

16 He left behind his parents, his two older brothers, his younger sister, his younger half-brother, and his grandparents.

17 Mr Gander's parents separated when he was aged six. After living in South Australia and Queensland with his family in his early years, between 2015 and 2022, he lived with his father, and sometimes his brothers too, in Wangaratta and Benalla. He commenced Year 8 at Benalla High School, and later completed Year 11 at Wangaratta High.

18 After leaving school at the end of Year 11, he started an apprenticeship as a diesel mechanic, although he later lost that job.

19 In July 2022, he moved back to Benalla with his father, but it was common for him to stay with friends for a couple of nights at a time. That said, his father, understandably, was concerned that Charlie was mixing with some undesirables. But he was not to know that his son was spending far too much time on the end of an ice-pipe (that is to say, smoking methamphetamine, also known as "ice" or "shard") or that he sometimes bought the drug for his mates.

20 As indicated earlier, Mr Gander and Tyson May were friends.

21 Kylie Stott was born on 24 February 1985. She was therefore 37 at the time of the offending, and is 40 now.

22 She has had grave misfortune with some of her menfolk, whereas others have been good to her. Sadly, she has been the victim of appalling family violence - physical, sexual, and emotional - at the hands of one previous partner in particular. I shall say more about this later.

23 Of aching concern to her, she had lost the care of her three younger children, who were living with their paternal grandparents in Shepparton at the time of the offending.

24 In 2022, Ms Stott was in such dire straits that she was living in a tent in bushland in Bunbartha, which is a hamlet just to the north of Shepparton. She then moved to her friend Jesse Michell's home, which he rented in Dear Court in Shepparton. Later, Dimitri D'Elio stayed there too.

25 In the days before the offending, because Mr Michell was being evicted from Dear Court, Ms Stott and Mr D'Elio, who were in a relationship of sorts by then, needed somewhere else to stay. Mr Michell raised this with Danny Clarke, whom Ms Stott had known since primary school. In late-December 2022, Mr Clarke allowed Ms Stott and Mr D'Elio to stay in a spare room at his home at Sunbury Road in Shepparton.

26 Like Mr Gander, Ms Stott had been using ice heavily. She was also selling the drug on the side. Plainly, however, in view of her straitened circumstances, this must have given her no more than a hand-to-mouth existence, if that.

27 Ms Stott and Tyson May were friends. It seems she knew Mr Gander through Tyson May, and perhaps from the drug milieu.

28 Dimitri D'Elio was born on 27 January 1998. He was therefore 24 at the time of the offending, and is 28 now.

29 Mr D'Elio had a good job in metal fabrication. However, towards the end of 2022, he had descended into such heavy use of ice that he had not been going to work, and he was afraid of going home and seeing his family in such a state.

30 While Mr D'Elio did not know Tyson May well, he was on closer terms with his older brother Brandon May. In healthier times, Mr D'Elio and Brandon May had trained together at the gym. Mr D'Elio had not met Mr Gander until the night of his murder.

31 Danny Clarke was born on 8 March 1984. He was therefore 38 at the time of the offending, and is 41 now.

32 He worked as a car detailer. However, in mid-2022, he stopped working because of grief over his mother's recent death.

33 Mr Clarke's then-girlfriend Rebecca Triffett was also living with him at Sunbury Road and providing him solace over his bereavement.

34 Like his two co-accused and Mr Gander, Mr Clarke was smoking ice regularly in the lead-up to the offending.

35 Mr Clarke did not know Tyson May or Mr Gander at all.

Mr Gander and Mr May's arrest on firearms charges on 17 November 2022

36 Turning next to a summary of the circumstances surrounding the offending, I shall commence with the arrest of Mr Gander and Tyson May.

37 As I said earlier, on the afternoon of 17 November 2022, Mr Gander was just visiting Tyson May at his home in Shepparton when the police came to the door to check on his friend's compliance with a firearm prohibition order. In a panic, Mr May handed Mr Gander a Coles shopping bag containing a homemade gun, and told him to get rid of it. Mr Gander did as he was told, but was caught in the act of doing so. Police arrested him and Mr May, and took them back to the police station.

38 When interviewed, after commencing with "no comment" responses, Mr Gander then reluctantly made admissions about what had occurred, including that Mr May had handed him the gun in a bag and told him to get rid of it. He also made a written statement to the same effect.

39 Mr Gander was charged with possessing a firearm as a prohibited person.[7] He was released on bail. While Mr May was charged with the same offence, he was remanded in custody.

Ms Stott, Mr D'Elio and others view Mr Gander's interview at Dear Court

40 Mr Gander was picked up from the police station by Mr Michell and taken to Dear Court. While it is not clear why, Mr Gander left the discs of his police interview at that address.

41 The day after the arrests, on 18 November 2022, Mr D'Elio made a recording on his phone of part of Mr Gander's interview being played on a television screen at Dear Court.

42 The same day, Mr Michell told Brandon May that Mr Gander's interview discs were at his premises.

Mr D'Elio plays Mr Gander's police interview to Brandon May and Ms Stott

43 A couple of days later, on an evening, Brandon May went to Dear Court to watch Mr Gander's police interview. Also present then were Ms Stott, Mr D'Elio and Mr Michell.[8]

44 Mr D'Elio played the discs through the television, fast-forwarding to certain parts. As this was occurring, Mr D'Elio said that Mr Gander was a "rat". He asked Brandon May whether he was going to do anything about it. Brandon May said that it was not his issue, that he had a little girl to care for, and that his brother was old enough to look after himself. Mr D'Elio called him a "pussy".

Phone calls between Tyson May (from prison) and Ms Stott

45 On 30 November 2022, in a telephone call by Tyson May from prison, Ms Stott told him that she had viewed Mr Gander's interview, which was on two discs.

46 In another call about 30 minutes later, Tyson May told Ms Stott that Mr Gander owed him $5,000. When he enquired as to Mr Gander's whereabouts, she said he was living with his father in Benalla.

47 On 12 December 2022, in another phone call to Ms Stott from prison, Tyson May called Mr Gander a "dog". Ms Stott responded, "Yep, I've got it covered."

Mr D'Elio and Ms Stott's text messages to Brandon May about "fishing"

48 On 17 December 2022, Brandon May received a text message from Mr D'Elio asking if he wanted to go to Benalla to go "fishing" with him and Ms Stott.[9]

49 The same day, Ms Stott messaged Brandon May asking whether he wanted to go on a "miss adventurous fishing trip" that morning. After he responded, "Where to," Ms Stott said, "Going to secret fishing spot to catch a big Charlie carp." Subsequently, she said, "We been waiting all night and morning for U to be finish with ya daughter before we left cos was Gunna go last night he was expecting me over there but thought U would like to come." In another message, she said, "We will bring him Bak for ya."

50 Later in the day, following a phone call from his brother Tyson, Brandon May texted Ms Stott: "Tyson just rang an i said charlie was getting a visit an he said not to because his bout to get the money off him he owes then go for it".

51 These text messages reflect the early stages of Ms Stott and Mr D'Elio's joint plan to confront Mr Gander and deal with him in some fashion over his dobbing on Tyson May.

52 On 21 December 2022, Mr Gander's father Richard, who had not heard from his son for a few days, jokingly texted him, "Are you alive, mate?" Thereafter, they made plans that Mr Gander would stay at his father's house on Christmas Eve so that they could attend a family gathering together on Christmas Day. Sadly, that was Richard Gander's last ever contact with his son.

Mr Gander's movements in Benalla on Friday 23 December 2022

53 On Friday 23 December 2022, Mr Gander went to his friend Tara Symes's house in Benalla. While there, he received a phone call from the Shepparton Holiday Village to organise the check-in at his pre-arranged cabin. (He had obtained this temporary accommodation through some form of flood relief.) Mr Gander arranged to collect his room-key from the afterhours lockbox at the holiday park.

54 Later, upon Mr Gander's request, his friend Regan Kilgannon agreed to lend him her Ford Territory.

55 At 6:43 p.m., Mr Gander contacted Ms Stott on Facebook messenger and said, "I'm gonna be in shepp tonight." The two exchanged messages during the evening, with Mr Gander asking her, "Have you got for cash."

56 After driving Ms Kilgannon and Kayla Marks to the Benalla Golf Club at about 7:20 p.m., Mr Gander returned to Ms Symes's house in the Territory. While there, he smoked ice with others and spoke about his accommodation in Shepparton. He said he was going to meet a girl there and get ice, and that he would be returning to Benalla that night. He also asked his friend Callan Orchard to go with him to check out the accommodation and then come back to Benalla, but Mr Orchard decided against this.

57 At 7:57 p.m., Ms Stott messaged Mr Gander, asking, "When U in town."

58 Mr Gander left Ms Symes's home in the Territory and headed to the Shepparton Holiday Village. On the way, he made two calls to Ms Stott's mobile phone, five seconds apart, at 9:02 p.m. Neither call was answered. He also messaged her on Facebook messenger, saying, "I'm on my way [over] now."

Three accused drive around with Brandon May on Friday evening

59 Meanwhile in Shepparton, at 8:44 p.m., Mr D'Elio called Brandon May and asked him to come to Dear Court. Mr May took a cab and arrived at about 9:13 p.m. Once there, he got into Mr D'Elio's Holden Caprice. Ms Stott was already in the car.

60 Mr D'Elio drove them around for a while, before arriving at Mr Clarke's home in Sunbury Road. Mr Clarke joined them in the car, leaving his mobile phone at home. He was hoping to obtain two points of ice from Ms Stott. Mr D'Elio, Ms Stott and Brandon May spoke about an unrelated matter involving another man.

61 All four left Mr Clarke's premises in the Caprice. They stopped for a period at an address in Shepparton so that Ms Stott could visit her three younger children, who lived with their paternal grandparents.

62 Later, with Ms Stott and Mr Clarke still in the car, Mr D'Elio dropped Brandon May at his home.

63 At some point after that, Mr D'Elio and Ms Stott dropped Mr Clarke in Patterson Road, which was near his home. He had not obtained any ice from Ms Stott at that stage. So, he then walked to a friend's house nearby to buy some ice, but his friend was not in. Then, Mr Clarke walked to his own home via a shortcut that led him over his back fence.[10] Ms Triffett was asleep on the couch, so he took her to bed.

Mr Gander arrives at Shepparton Holiday Village on Friday evening

64 Returning to the earlier narrative, at about 9:20 p.m. on the Friday, Mr Gander arrived at the Shepparton Holiday Village and accessed his cabin.

65 At 9:25 p.m., he made another unanswered call to Ms Stott.

66 At 9:48 p.m., he sent Kayla Marks a message in the following terms: "just come to check into the apartment thing quickly". Ms Marks and Mr Gander had been in a relationship for about a month.

Messages/calls between Mr Gander and Ms Stott and others late on Friday evening

67 At 9:52 p.m., Mr Gander rang his friend Annezeey Johnson and spoke with her for about 41 minutes.

68 At 10:23 p.m., Mr Gander messaged Ms Stott, saying, "I'm in shepp now." The two then exchanged messages in which he told her where he was staying. Ms Stott asked, "Who U with," and he replied, "Just me." Ms Stott then asked, "What number I just round corner seeinb my kids," and he replied that it was number 30.

69 At some stage while in the cabin, Mr Gander sent a Snapchat message to Ms Marks to the effect that he was about to have a shower and that he would be leaving to come back and see her.

70 At 10:44 p.m., Mr Gander messaged Ms Stott asking who was with her. She replied, "Just me andd my cusin." At this point, it was just Ms Stott and Mr D'Elio in the Caprice.

71 At about 10:48 p.m., Mr Gander told Ms Marks he would be "leaving now".

72 At 10:50 p.m., Mr Gander made another (shorter) call to Ms Johnson.

73 At about 10:48 p.m. and 10:50 p.m., Ms Stott and Mr Gander rang each other and spoke for about two minutes each time.

74 At 10:53 p.m., Mr Gander sent Ms Marks a Snapchat picture which depicted his feet in black Asics runners and the feet of two more people, one wearing red runners.[11] Mr Gander never opened the Snapchat message Ms Marks sent in response. The other two pairs of feet in the picture were those of Ms Stott and Mr D'Elio.

75 At 11:02 p.m. (for 23 seconds) and 11:07 p.m. (for 21 seconds), Mr Gander rang Ms Stott.

76 The last time Mr Gander's phone utilised a cell tower that day was at 11:36 p.m. Ms Stott's phone utilised the same tower at the same time.

77 Between 11:47 p.m. and 12:08 a.m., Ms Marks attempted to call Mr Gander over ten times, but the calls were not answered, and they went through to his message bank.

78 Between 11:47 p.m. and 5:24 a.m. the next morning, Mr Gander's mobile phone was switched off.

All four protagonists at Mr Clarke's home on Saturday between 1:44 a.m. and 5:18 a.m.

79 At about 1:44 a.m. on the Saturday morning (which was Christmas Eve), CCTV cameras picked up Mr D'Elio's Caprice and Ms Kilgannon's Territory driving in convoy along Poplar Avenue and into Sunbury Road in Shepparton, and then stopping at Mr Clarke's home.

80 Upon their arrival, Mr D'Elio, Ms Stott and Mr Gander went inside. They approached Mr Clarke, who was out the back working on a car. He had risen earlier because he had been unable to sleep. Ms Stott asked him if Mr Gander could "hang" there for a bit, because he was from out of town and was trying to "get on" (that is, buy ice). Mr Clarke agreed, but asked that they not be noisy. He saw no animosity towards Mr Gander.

81 Also at that time, Mr Clarke got two points of ice from Ms Stott, half of which he smoked in his back yard.

Mr Clarke's movements and actions between 5:18 a.m. and 6:21 a.m.

82 At some time while at his home before 5:18 a.m., Mr Clarke asked Ms Stott if he could borrow Mr Gander's Territory. He told everyone there that he would go to his cousin to see if he could "score" for Mr Gander. But the truth - which he did not reveal to the others - was that his intention was to go to Jason Garvey's place in Community Street to burn his car. He wanted to take Mr Gander's car because it was from out of town, and, he thought, it would not be traced back to him.

83 And so it was that, at 5:18 a.m., Mr Clarke left his home in the Territory and headed towards Community Street. He parked nearby. While wearing a mask and a hoodie, he walked to a Hyundai in the carport attached to the house at 35 Community Street. He lit a fire in the front passenger footwell of the car, using methylated spirits and a lighter he had brought from home. The Hyundai was significantly damaged by the fire.

84 Mr Clarke did this because Mr Garvey had threatened Ms Triffett over an unpaid debt and, further, that he would "shoot up" their home (meaning, he would fire gunshots at the house). He believed Mr Garvey had guns hidden in the Hyundai, and was hoping to damage them in the blaze.

85 After he set the car alight, Mr Clarke drove to the local fire station. He waited there until a truck left the station in the direction of Community Street, as he did not want the fire to get out of hand.

86 At 5:42 a.m., Mr Clarke rang Mr D'Elio in a call lasting 16 seconds. At 6:10 a.m., Mr D'Elio rang Mr Clarke in a call lasting 24 seconds. During one or both of those calls, Mr D'Elio told him that Mr Gander wanted $70 withdrawn from his bank account. Mr D'Elio said that Mr Gander's card was in the console of the Territory, and he gave him the PIN number.

87 At 6:15 a.m., Mr Clarke arrived at the Shepparton Plaza, and parked the Territory. He walked to the ATM of the National Australia Bank, where he inserted Mr Gander's card. He withdrew $60 from Mr Gander's account (after unsuccessfully attempting to withdraw $70). He took the money, and got back into the Territory.

88 He delayed leaving because he could see a police car nearby, and he was disqualified from driving at the time. After the police moved, he drove back to his home at Sunbury Road.

Three accused's actions at Mr Clarke's house between 6:21 a.m. and 6:59 a.m.

89 Mr Clarke arrived home at about 6:21 a.m. Once inside, Ms Stott told him that Mr D'Elio had put Mr Gander in the boot of the Caprice after a fight between them in the back yard.

90 Mr Clarke was concerned that Mr Gander was in the boot of a car, and that this had all been happening at his home. He told them that they had to take Mr Gander away from his home. He told Ms Stott she had to figure it out. Ms Stott asked if he would help them by driving the Territory. Mr Clarke agreed, and suggested a location along Wanganui Road in Shepparton North to which they could take Mr Gander.

91 Thus, at 6:59 a.m., Mr Clarke left his home in the Territory. Ms Stott and Mr D'Elio followed him in the Caprice, with Mr Gander in the boot, until their convoy arrived at an abandoned house along Wanganui Road.

Events at abandoned house on Wanganui Road between 6:59 a.m. and 9:12 a.m.

92 Once there, Mr D'Elio and Ms Stott took Mr Gander out of the boot. They then threw him to the ground in the carport area of the abandoned house. His hands and feet had been bound with duct tape, which Mr Clarke did not know until then. To him, Mr Gander appeared a bit groggy, as if affected by alcohol or drugs.

93 Mr D'Elio or Ms Stott, or both, said that Brandon May or his father was coming to deal with Mr Gander.

94 At some point at the abandoned house, albeit it is not clear when, Mr Clarke saw Mr D'Elio "getting into" Mr Gander, and Ms Stott was telling him to "pull up". Mr Clarke told them that he wanted to go, and walked away. He then returned to tell them again that he wanted to go. At this point, Mr Gander broke free and went to get Ms Stott from behind, so Mr Clarke grabbed him and threw him to the ground. He then yelled at the other two, saying that this needs to stop.

95 During most of the two hours they were at the abandoned house, Mr Clarke sat in the rear seat of the Caprice, where he smoked ice and played on his phone. He understood that, ultimately, Ms Stott and Mr D'Elio became sick of waiting for someone from the May family, and that they put Mr Gander in the Territory.

96 Then, all of a sudden, the Territory came flying out of the shed area and started to leave the property. Mr Clarke could see only Mr D'Elio in that vehicle. Ms Stott came running to Mr Clarke, saying that Mr D'Elio had had "a hissy fit" and just started taking off. She said they needed to follow him. So, with Ms Stott driving and Mr Clarke still in the back seat, they followed the Territory in the Caprice. This was at about 9:12 a.m.

97 Soon afterwards, Mr D'Elio stopped the Territory on the Barmah-Shepparton Road,[12] so Ms Stott pulled over in the Caprice too. Mr D'Elio and Ms Stott got out of the vehicles and were yelling at each other. Mr D'Elio went to the boot of the Caprice, but Mr Clarke, who was still in the back seat, could not see what he took out (if anything). Mr D'Elio then drove off in the Territory.

98 Ms Stott came back to the Caprice. As she too drove away with Mr Clarke still in the back seat, she told him that Mr D'Elio said that Mr Gander got loose and started hitting him in the back of the head, so he had to restrain him again. Ms Stott said that Mr D'Elio was not making sense. They followed the Territory, although it was out of sight at times.

The burning of the Territory, with Mr Gander's body inside it

99 Mr Clarke next saw Mr D'Elio when they neared the intersection of Loch Garry Road and Burgess Road in Bunbartha. He was running towards them, waving his hands. The Territory was already on fire.

100 Ms Stott pulled over in the Caprice, and Mr D'Elio got into the front passenger seat. She asked what was going on and where Mr Gander was. Mr D'Elio said not to worry about that, and that they needed to go. Ms Stott went to ring triple-zero for the fire brigade, but Mr D'Elio told her not to.

101 Neither Mr Clarke nor Ms Stott knew where Mr Gander was at that moment, but Mr Clarke assumed (correctly) that he was in the burning Territory.

The three accused head to Nathalia and then back to Shepparton

102 As they drove away, both Mr Clarke and Ms Stott were "freaking" at what had happened. Ms Stott said she would ring the police and make out Mr Gander had tried to rape her. Mr D'Elio said, "No, you're not," so she kept driving towards Nathalia.

103 At 9:57 a.m., Mr Clarke sent a text message to Ms Triffett saying, "Babi we are not far away I miss you love [heart emoji] we are gonna need showers etc."

104 They stopped at Nathalia at about 10:00 a.m. Ms Stott went to a supermarket. Mr D'Elio followed her into the shop, while Mr Clarke waited in the back seat of the Caprice.

105 At 10:10 a.m., Mr Clarke sent a message to Mr D'Elio saying, "Bro it's fucken hot," and he also sent him a selfie.

106 At 10:14 a.m., Ms Stott and Mr D'Elio paid at the checkout for the items they selected at the supermarket, including medicated soap, baby wipes, and alcohol. They returned to the car soon afterwards. Ms Stott then went to the bakery.

107 At about 10:18 a.m., Mr D'Elio used his phone to conduct Google searches, including for "a car wash near me" and "Numurkah car wash".

108 Thereafter, the three accused travelled in the Caprice back to Shepparton via Mooroopna, which is an indirect route.

109 Mr Clarke was dropped off at his home in Sunbury Road, and Ms Stott and Mr D'Elio left in the Caprice.

110 Mr Clarke did not tell Ms Triffett what had happened.

Google searches and other actions between 25 and 28 December 2022

111 The next day (which was Christmas Day), from 10:58 a.m., Mr D'Elio conducted several Google searches on his phone, including for "dead man toruched", "dead body in burned car", and "dead body in burned car shepparton Victoria". At 11:02 a.m., he sent Ms Stott a text message stating, "Be careful driving that need to get something out." At 11:05 p.m., Mr D'Elio conducted another Google search for "dead body in burned car shepparton Victoria".

112 On Boxing Day, at 2:06 p.m., Mr D'Elio conducted another Google search on his phone, this time using the term "murder shepparton".

113 On 28 December, at 9:40 p.m. and 9:41 p.m., Mr Clarke sent Mr D'Elio a selfie taken of the three accused, with the text message reading, "The funny cunt family." At 9:51 p.m., he sent Mr D'Elio a message saying, "Hey, bro," accompanied by a photo of Mr D'Elio in the driver's seat of the Caprice. And at 10:02 p.m., he sent Mr D'Elio a screenshot of a news article entitled, "Man's body found in car in Bunbartha."

Investigation of fire engulfing Ford Territory and Mr Gander's body

114 At around 10:00 a.m. on Christmas Eve, a resident of Bunbartha saw the burning Territory, and she alerted the authorities. The fire brigade and police attended.

115 Upon examination of the Territory by an expert, police determined that the source of the fire was ignition of combustible material in the passenger compartment.

116 The remains of Mr Gander were in an awkward position in the driver's seat, with his back inclined across that seat and his skull in the centre console.

117 After conducting a post-mortem examination on Christmas Eve, forensic pathologist Dr Paul Bedford concluded that a cause of Mr Gander's death could not be ascertained.

118 However, he also opined that it was likely that Mr Gander was dead before being burned. This is because there was no sooting in his airways and there were no carboxyhemoglobin or other compounds in his blood.

119 Dr Bedford also explained that what little of Mr Gander's organs remained (and were able to be examined) did not show evidence of traumatic injuries, such as stabbing or gunshot injuries. While there were several bone fractures, including of the skull and facial bones, these were consistent with the effects of the fire, rather than injuries caused by trauma.

120 However, he could not rule out the possibility that trauma of some kind caused Mr Gander's death. Nor could he exclude the possibility that the high level of methamphetamine detected in his system caused his death.

121 Early on 30 December 2022, police arrested all three accused at Mr Clarke's home in Sunbury Road. At that time, Ms Stott and Mr D'Elio were together in one bedroom, and Mr Clarke and Ms Triffett were together in another.

122 During a search of Ms Stott and Mr D'Elio's bedroom the same day, police found, among other things, the second disc of Mr Gander's police interview and a pair of runners with Mr Gander's blood on the heel of the right shoe.

123 At a further search of the same room on 2 January 2023, police found the first disc of Mr Gander's police interview, as well as a yellow exercise book and a black notebook containing handwritten notes referring to "Charlie Gandre" and/or "Charlie Gander".

124 Examination of Ms Stott's phone showed that Mr Gander's number had been saved under the name "Charlie Dead Dog Gandre".

125 On 6 January 2023, upon examination of Mr D'Elio's Caprice, police found under the front passenger seat a kitchen knife wrapped in a tea towel with blood staining.

126 DNA testing showed that blood on the edge of the blade of the knife was consistent with that of Mr Gander; that apparent blood near the handle contained DNA consistent with that of Mr Gander and Mr D'Elio; and that DNA consistent with that of Mr Gander and all three accused was present on the handle area.

127 A fingerprint found on the blade of the knife matched Mr D'Elio's right middle finger.

128 In his evidence at trial, Mr D'Elio admitted that the knife was his, and that he touched the blade, but he denied using it on Mr Gander.

129 Also in the Caprice was a bank debit card in the name of Mr Gander, an iPhone case belonging to him, and a roll of duct tape.

130 Swabs of the interior of the front passenger door contained DNA consistent with that of Mr Gander.

131 Next, I turn to the accused's interviews with police following their arrests on 30 December 2022, commencing with Mr Clarke. He lied to police, saying that he did not know anything about the incident or who Mr Gander was.

132 In her police interview, Ms Stott admitted that, on the evening of 23 December, she and Mr D'Elio gave a lift to Brandon May and that she visited her children. She also admitted that she was in possession of Mr Gander's interview disc, as he had left it at her house.

133 She asserted that, on 23 December, she also visited the address of another person (whom she named) until possibly before midnight, after which she went home.

134 Ms Stott lied by saying that she was picked up by Mr D'Elio and Mr Clarke from Dear Court on the morning of Christmas Eve to go to Nathalia for lunch; that they drove straight from Shepparton to Nathalia; and that she did not have her phone with her. She also lied by saying that she did not see Mr Gander on the Friday or the Saturday.

135 Ms Stott said she felt sorry for what happened to Mr Gander but asserted that she did not have anything to do with his death and did not know when he was killed.

136 In his interview, Mr D'Elio lied by saying that, on Christmas Eve, after waking at Sunbury Road, he did not go anywhere else. He lied by saying that he had not been to Nathalia in months. When told that he was captured on CCTV footage, he said it must be a doppelgänger. He also lied by saying he did not have a mobile phone. When asked about the car fire in Bunbartha, he lied by saying, "Couldn't tell you anything. I don't know nothin'."

137 When Mr D'Elio was at the police station waiting to be interviewed, an undercover operative was placed in a holding cell with him. They had a conversation, which was recorded covertly, during which Mr D'Elio said the following, among other things:

• Mr D'Elio's "clothes ... from the job [are] gone ... everything's gone."

• "Bro, he was crying, begging. He asked for a phone call and all."

• "Bro, he put himself in the car ... he done what he was told."

• "His legs didn't work all right ... they stopped working."

• "He [meaning Charlie] was sitting up in the back seat."

Ms Stott's call from prison to Brandon May on 4 February 2023

138 On 4 February 2023, during a call Ms Stott made from prison to Brandon May, when discussing the dropping of the charge against Tyson May (in respect of which Mr Gander was to be a witness), she said, "I knew they'd drop it ... I might have a little something to do with that one."

Conclusions on disputed aspects of offending and each accused's role therein

139 I turn now to my conclusions on some disputed matters of fact concerning the offending and as to each accused's role therein. In doing so, I shall set out what I have found or failed to find, both in accordance with the jury's verdicts and consistently with the evidence I have accepted, rejected or been unable to determine.[13]

140 However, in order to reduce the length of these (already long) reasons, I shall set out those findings without much (or, in some cases, any) reference to the viva voce evidence of Mr D'Elio or Mr Clarke, the submissions put by the parties, or my reasons for accepting or rejecting those submissions.

141 What I shall say now, though, is this. Where there were factual conflicts in respect of which Mr D'Elio's evidence, Mr Clarke's evidence and/or the Crown's circumstantial case could be regarded as germane, I have resolved those conflicts mostly by acting on Mr Clarke's evidence. I have done so for three reasons. First, his evidence was largely consistent with the jury's verdicts, whereas Mr D'Elio's was not. Second, the Crown's circumstantial case left open alternative views of the facts on some issues. Third, in the main, I accepted Mr Clarke's evidence and rejected Mr D'Elio's, and I failed to accept aspects of the Crown's circumstantial case on some disputed issues.

142 Dealing first with the kidnapping, I am satisfied that, well before Mr Gander came to Shepparton on 23 December, Ms Stott and Mr D'Elio had harboured thoughts of kidnapping him and also roughing him up in some fashion. Their motive for doing so was to teach him a lesson for snitching on Tyson May. Then, when Mr Gander wanted to come to Shepparton to buy drugs on that fateful night, Ms Stott and Mr D'Elio took up the opportunity to meet him at the holiday village and deal with him.[14]

143 However, I am not satisfied that they outwardly acted on their plan either at the holiday village or when they were first at Mr Clarke's home from 1:44 a.m. on Christmas Eve. Nor, at those times, did they give Mr Clarke or Mr Gander any clue that they were intending any such thing. Instead, they did not put their plan into action until they were alone with Mr Gander at some point between Mr Clarke's leaving his home at 5:18 a.m. and his return at 6:21 a.m.[15] I am satisfied this must have occurred by the time Mr D'Elio conveyed the message to Mr Clarke about withdrawing money from Mr Gander's account at 5:42 a.m. and/or 6:10 a.m. Equally, however, I am satisfied that Mr Clarke was not aware of anything untoward in that request.

144 I am also satisfied that Mr Gander was bound with duct tape and put in the boot of the Caprice before Mr Clarke arrived home. Then, once Mr Clarke returned and was informed about what had happened, Mr Gander, while still in the boot of the Caprice, was driven by Mr D'Elio and Ms Stott from Sunbury Road to the abandoned house at Wanganui Road,[16] was thrown to the ground by the two of them once there, and was assaulted by Mr D'Elio.[17]

145 Other than participating in throwing him to the ground upon their arrival at the abandoned house, I am not satisfied that Ms Stott personally assaulted Mr Gander. However, I am satisfied that she was a party to Mr D'Elio binding Mr Gander and putting him in the boot of the Caprice at Mr Clarke's home, to his being driven in that state to the abandoned house, to most of the assaults upon him while there, and to putting him in the Territory towards the end of the two-hour period at that address.[18]

146 I think I am bound to conclude that both Ms Stott and Mr D'Elio's involvement in the kidnapping ceased when Mr Gander was put into the Territory. This is because, as we shall see, I cannot exclude the reasonable possibility that the acts constituting the murder and the manslaughter were complete immediately before that event and that Mr Gander died immediately or soon thereafter. A dead man cannot be kidnapped.

147 Turning to the murder, on the evidence, it is unclear precisely how, when or where Mr D'Elio killed Mr Gander. It is possible that he assaulted Mr Gander further, and thereby caused his death, after he drove him away from the abandoned house (for example, just before or after he stopped the Territory briefly on the Barmah-Shepparton Road). However, I am not satisfied of those facts.[19]

148 Instead, I am satisfied that at least some of the assaults Mr D'Elio perpetrated while at the abandoned house must have caused Mr Gander's death.[20] It may be that he did not die from those assaults until well after he was taken from the abandoned house in the Territory, but I am unable to reach a definitive conclusion about that. As I said a moment ago, I cannot exclude the reasonable possibility that Mr Gander died immediately or very soon after he was put into the Territory.

149 These conclusions, I think, are also consistent with Ms Stott's acquittal of murder and arson and with her conviction of manslaughter. For, while the contrary is possible, I think it is unlikely that the jury would have convicted her of manslaughter if Mr D'Elio committed the act or acts causing death in her absence.

150 While Mr D'Elio may well have employed his knife in some fashion during the kidnapping and the violence generally, I am not satisfied of that fact or that he killed Mr Gander by stabbing him. Mr Gander's blood and the three accused's DNA could have ended up on the knife in any number of ways other than by Mr D'Elio's use of the knife to stab Mr Gander, including transference.

151 The Crown accepted that it might be that Mr D'Elio did not intend to kill Mr Gander. I accept that concession. I shall sentence Mr D'Elio on the basis that, when committing the assault or assaults that caused death, he intended to cause Mr Gander really serious injury, and he did not intend or expect that he would die.

152 Further, I am satisfied that he perpetrated that assault or assaults with the same base retributive motive he had when kidnapping him.

153 Turning to manslaughter, I am satisfied that, while at the abandoned house, Ms Stott was party to an agreement with Mr D'Elio that he would assault Mr Gander in a way that was unlawful and dangerous,[21] that he did assault him at that location and in that way (albeit that, unknown to her, he did so with an intention to cause him really serious injury), that she was present at that time, and that at least one or more of these assaults caused his death.[22]

154 I am also satisfied that her motive for being part of that agreement was the same retributive motive she had for the kidnapping.

155 However, I am not satisfied that she had the slightest expectation that Mr Gander would be gravely harmed or killed, or that she had any awareness that he was or may have been dead at the time he was put into the Territory.

156 Nor am I satisfied that Ms Stott was part of any plan to dispose of Mr Gander's body at any point. I am satisfied that her agreement with Mr D'Elio ceased the moment he drove away in a "hissy fit". Thereafter, it was Mr D'Elio alone who was responsible for the new venture of disposing of Mr Gander's body, which he did by burning the Territory with the body inside it, to which I turn now.

157 So, as for the arson, while I cannot say precisely when Mr D'Elio formed the intention to burn the Territory and Mr Gander's body, I am not satisfied that it was part of any pre-conceived plan on his part. Rather, his intention in that regard must have arisen at some stage after he realised Mr Gander was dead, and is likely to have resulted from panic.

158 His decision to do this could have been formed at any point between the moment after he and Ms Stott put him in the Territory and his stopping at the intersection at Bunbartha where the Territory was ultimately found. One possibility arising on the evidence is that this decision was made around the time he went to the rear of the Caprice when both vehicles stopped on the Barmah-Shepparton Road. A form of accelerant was found in the boot of the Caprice at a later stage, which is what he may have been looking for, and found, when he went to the back of his car. But I am not satisfied that he did take accelerant from the boot at that time or that his intention to burn the Territory and Mr Gander's body was necessarily formed then. However, I am satisfied that Mr D'Elio had formed this intention by the time he arrived at the intersection where the Territory was later found.

159 I am also satisfied that, while there, he first placed Mr Gander's body in the driver's seat and then set fire to the Territory. I am satisfied that he did this intending to destroy both the vehicle and Mr Gander's body in order to remove possible evidence of his involvement in the kidnapping and murder.[23]

160 I turn now to the victim impact statements from Mr Gander's family, which are compelling.

161 His mother Alison Gander spoke of receiving the dreadful news of her son's death on Christmas morning, news that no mother should ever have to hear. It was so shocking that it felt like a punch in the heart, leaving her gasping for breath. For her, there is no adequate way to describe the devastation of losing her child, especially under such horrific circumstances. Her nights are often sleepless, as she pictures her son begging for his life. She longs to hear his voice again, his laughter, to feel his hugs. It is now hard for her to find enjoyment in anything. She is broken. Some days, she doesn't want to be here any longer. She feels condemned to a lifetime of grief.

162 His father Richard Gander spoke of the gut-wrenching panic he felt when he first heard something terrible may have happened to his son. When he had to give the shocking news to his family on Christmas Day, it felt impossible. He would open his mouth, but no words would come out. He is angry that his son suffered until his very last breath. His son's birthday is a day he now dreads each year, as it is just another reminder of his loss. He said that people say that time heals, but he doesn't believe that for a second, not when it comes to losing a child. Sadly, I think he is right.[24]

163 Like his parents, Charlie Gander's siblings Samuel, Mitchell and Layla Gander are devastated by the sudden loss of their brother, and in such an atrocious way. They miss him deeply. Their lives have changed drastically. For example, whereas Christmas used to bring them so much joy and togetherness as a family, it is now a season of sorrow and heartache. Moments that remind them of their brother - whether it be a song or just a passing thought - bring home the reality that he is gone, and this triggers their overwhelming grief yet again.

164 His grandparents Helen and Lionel Chandler are overwhelmed with grief over the loss of their grandson, and in such an inhumane and appalling way. They are particularly concerned about the impact of his death on others in their family.

165 These and the other sentiments expressed by Mr Gander's family are both natural and profoundly moving.

166 In so far as it is permissible to do so, I have had regard to the contents of their victim impact statements in considering the appropriate sentences, especially on the murder and the manslaughter. They are also relevant to the arson, given the despicable way their loved one's body was treated in death. Further, I have had regard to the victim impact that necessarily must flow from knowledge of Mr Gander's terror during the kidnapping.

167 I wish to add this. The sentences to be imposed are not a reflection of the worth of Mr Gander's life or an adequate measure of his family's suffering. They cannot be. Rather, those sentences simply reflect the many and varied factors I am required by law to take into account, only one of which is the impact on victims.

168 I turn now to an assessment of the gravity of the offending, and of Mr D'Elio and Ms Stott's moral culpability for it, commencing with the kidnapping.

169 Kidnapping at common law carries a maximum penalty of 25 years' imprisonment.[25]

170 Like most offences, however, and notwithstanding that very heavy maximum penalty, kidnapping can vary markedly in its level of gravity. That said, the more serious instances of kidnapping are grave offences which can attract correspondingly heavy sentences.

171 In this case, the following factors are among those that inform the seriousness of Mr D'Elio and Ms Stott's instances of the offence.

172 First, as I have said, the motive held by Mr D'Elio and Ms Stott for the kidnapping was retribution against Mr Gander for breaking the code of silence. This is an especially base motive, one which strikes at the heart of the legal system. For Mr Gander did no more than tell the police the truth. And yet he was punished for it, mercilessly. As the Crown submitted, an offence - whether it be kidnapping, murder or manslaughter - committed with that motive requires particular weight to be given to denunciation as a purpose of sentencing, to which I shall return later.

173 Second, there was also pre-meditation by Mr D'Elio and Ms Stott, as they had planned the kidnapping, and the related roughing-up, for a considerable time.

174 Third, the manner of the commission of the offence was serious. For it involved binding Mr Gander with duct tape and putting him into the boot of the Caprice, the driving of him from Sunbury Road to Wanganui Road in that state, and the violence involved in the assaults perpetrated upon him.[26]

175 Fourth, the duration of the kidnapping was also extensive. It began at Mr Clarke's house in his absence at some point before 6:21 a.m. and continued at the abandoned house in Wanganui Road until the assault or assaults that caused Mr Gander's death, which must have been towards the end of the two hours or so spent there.

176 Fifth, Mr Gander was outnumbered, and he must have been terrified throughout the ordeal. As Mr D'Elio told the undercover operative, he was crying, begging, and asking for a phone call.

177 The gravity of Ms Stott's offence of kidnapping is reduced to some extent by her telling Mr D'Elio to "pull up" when he was assaulting Mr Gander at the abandoned house, for this shows some restraint, some mercy. Further, to the extent that any violence involved in the kidnapping (or the killing) went beyond her agreement with Mr D'Elio, she is not responsible for that.

178 Thus, overall, I regard their offences of kidnapping as objectively serious and as involving a high degree of moral culpability, albeit Ms Stott's offence is less serious, for the reasons just mentioned.

179 Both of Mr D'Elio and Ms Stott's instances of kidnapping are substantially more serious than Mr Clarke's. In contrast, his offence was spontaneous; it lacked pre-meditation and the sinister motive held by his co-accused; it commenced later and concluded earlier than theirs; and it did not involve actual violence by him or any assent to the violence by Mr D'Elio (other than his own act of throwing Mr Gander to the ground when he was advancing on Ms Stott and his implicit assent to the violence inherent in his being taken from Sunbury Road to Wanganui Road in the boot of the Caprice). Further, when at the abandoned house, Mr Clarke told the others that this must stop.

180 Turning to murder, it carries a maximum penalty of imprisonment for life and a standard sentence of 25 years' imprisonment.[27]

181 It is the most serious offence in the criminal calendar, although the level of gravity of murder can vary a good deal from case to case.

182 Here, included among the factors informing the gravity of Mr D'Elio's offence of murder are the following.

183 First, every offence of murder has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

184 Second, as we have seen from the victim impact statements, the loss to Mr Gander's loved ones of his young and cherished life is profound yet incalculable.

185 Third, while, as I have said, I cannot say precisely when, where or how Mr Gander was killed, I am satisfied that Mr D'Elio physically assaulted him for a substantial period while at the abandoned house. I am also satisfied that his death must have been caused by at least one or more of those assaults.

186 Fourth, to the extent that Mr D'Elio, for some considerable time, had planned to "rough him up" or assault him, at least that aspect of what became a murder was planned.

187 Fifth, again, Mr Gander was outnumbered, vulnerable, and must have been terrified.

188 Sixth, I am satisfied that Mr D'Elio's motive for assaulting him so seriously as to cause his death was the same base retributive motive he had for the kidnapping. However, it is not clear to me why he went beyond the agreement he had with Ms Stott, albeit I accept that he did so spontaneously. He may have wanted to impress her, but I am not satisfied of that. Instead, I think there is some explanation in his father's violence to which Mr D'Elio was exposed in his formative years, which I shall address later.

189 Notwithstanding the absence of an intention or an expectation in Mr D'Elio that Mr Gander would die as a result of his assaults, despite the presence instead of an intention to cause really serious injury, and despite the spontaneity of his departure from his plan with Ms Stott, the other factors I just mentioned still make this a serious example of murder committed with a substantial degree of moral culpability.

190 However, the Crown submitted that Mr D'Elio's destruction of Mr Gander's body was an aggravating feature that made this murder even more serious.

191 I accept that, absent the arson offence, and despite the principle in R v De Simoni and related cases,[28] it would be conventional and necessary to treat the destruction of the body as an aggravating factor of the murder.[29] I also agree that that destruction and the motive for it - i.e. to cover up his involvement in the offence - would make it a substantially more serious instance of murder.

192 However, where, as here, the burning of the body is inextricably bound up in the arson of the Territory, as is the motive for doing so, I think it is preferable to deal with those matters as aggravating factors of that offence, and then to reflect those factors both in the individual sentence for arson and in the extent of cumulation of that sentence upon the sentence for murder. That is what I shall do.

193 Another reason supporting that approach is to ensure a proper relativity between the sentences for the offences of murder and manslaughter in circumstances where the same aggravating factors do not apply in Ms Stott's case. While the great differences between murder and manslaughter mean that the parity principle does not strictly apply, there still must be an appropriate relativity between the sentences when those two homicide offences concern the one deceased and are so closely related in their commission. And, in this particular case, that relativity is more likely to be distorted if those aggravating factors are applied to the murder and not to the arson.

194 Further, were I to treat the destruction of Mr Gander's body and his motive for that behaviour as aggravating features of both the murder and the arson, there would be a risk of double punishment, although that might be offset adequately by directing less cumulation of the sentence for arson upon the sentence for murder.

195 That said, as I understood the Crown's position, the preferable course would be to impose a heavier sentence for the murder on account of these aggravating factors; to refrain from taking those factors into account on the arson; and then to impose lesser cumulation of the arson sentence upon the murder sentence than I might otherwise.

196 In the end, whichever course is taken, the contribution of the sentences for those two offences to the total effective sentence would be the same.

197 Turning to manslaughter, it carries a maximum penalty of 25 years' imprisonment.[30]

198 Offences of manslaughter can vary a great deal in their level of gravity.

199 In this case, the same six factors I considered in relation to the murder by Mr D'Elio - but as adapted to the lesser offence - are among those that inform the gravity of Ms Stott's offence of manslaughter. Thus, to repeat, first, the law must maintain a special concern for the sanctity of human life. Second, the loss to and impact upon Mr Gander's loved ones is incalculable. Third, Mr Gander was assaulted for a substantial period. Fourth, to the extent that Ms Stott had planned with Mr D'Elio for a considerable time to have Mr Gander assaulted, at least that aspect of what became a manslaughter was premeditated. Fifth, Ms Stott was one of those responsible for outnumbering Mr Gander, thereby rendering him more vulnerable and all the more terrified. Sixth, her motive for agreeing with Mr D'Elio that he should assault Mr Gander in an unlawful and dangerous manner was the same base motive they shared for the kidnapping.

200 On the other hand, like her offence of kidnapping, Ms Stott's moral culpability for this offence of manslaughter is lessened to some extent by her telling Mr D'Elio to "pull up" when he was assaulting Mr Gander at the abandoned house. Had Mr D'Elio heeded her admonition, Mr Gander might not have been killed.

201 Notwithstanding the latter point, overall, I still consider this to be a serious example of manslaughter with a substantial degree of moral culpability.

202 Turning to arson, it carries a maximum penalty of 15 years' imprisonment.[31]

203 Like many other offences, arson also can vary a great deal in its level of seriousness.

204 The following factors are among those that inform the gravity of this instance of arson.

205 First, it is a serious thing to destroy another person's car by intentionally burning it.

206 Second, as discussed earlier, Mr D'Elio's offence is aggravated to a very substantial degree by his deliberate placing of the deceased Mr Gander in the driver's seat and thereby intentionally causing his body to be destroyed by the fire. This was a horrible thing to do.

207 Third, that the motive for destroying both the car and Mr Gander's body was to cover up his involvement in kidnapping and murder is another substantial aggravating factor of the arson.

208 On the other hand, I accept that there must have been a degree of spontaneity and panic in Mr D'Elio's decision to commit this offence.

209 Notwithstanding the latter points, overall, I regard this as a very serious instance of arson for which Mr D'Elio has high degree moral culpability.

210 Next, I turn to Mr D'Elio's personal circumstances, as detailed in the psychological report of Dr Hannah Dawson[32] and in the submissions of his counsel, Ms Strugnell. I shall commence with his family background.

211 Mr D'Elio's parents separated when he was aged six. In consequence, he was thereafter raised by his mother alone, and then, from the age of 12, also by his stepfather. He has two younger siblings.

212 His father[33] was in and out of his life in his early years. Mr D'Elio had ceased contact with him prior to his arrest, and it had been years since they last spoke. He described his father as "not a very nice person" and as "very abusive towards" his mother. In fact, he witnessed him assault her. He has a particular memory of hiding while his father chased her with a knife. He also received "some floggings" from his father when he was a child.[34]

213 Mr D'Elio recalled that there were periods when professionals were involved in attempts to support the children's contact with their father. However, supervised contact was short-lived, with his father failing to show up, and he and his siblings did not want to attend anyway.[35]

214 The file compiled by the Department of Families, Fairness and Housing ("DFFH"),[36] confirms that, in Mr D'Elio's early family life, there was a good deal of police and professional involvement, dislocation and instability, including the need for a recovery order. This was all on account of his father's violence and use of illicit drugs.

215 Ms Strugnell explained that Mr D'Elio tends to minimise issues around his own upbringing but shows some limited insight into their potential impact.[37] He considers that he is ultimately to blame for his own step into methamphetamine addiction.

216 He regards his relationship with his mother and stepfather as a healthy one.[38] He is close to them and has their strong support.[39]

217 As for his education, Mr D'Elio attended four different primary schools and two secondary schools. This was because his family relocated several times, out of necessity. He was also sent to a special secondary school for children considered by the DFFH to be at risk.

218 His best subject at school was mathematics, but he struggled with English. He acted out in class, particularly at times when contact with his father was in the offing. Despite this, he ultimately completed the equivalent of VCAL, and left school at the end of Year 11.

219 As for his employment, Mr D'Elio worked at the Overlander and at McDonald's while at school.

220 After leaving school, he commenced an apprenticeship as a metal fabricator and engineer. He remained employed with the same company after he completed his apprenticeship.

221 Later, he moved to Melbourne to do something different. He lived there with his father and extended family. However, it was an ill-fated experiment, because he fell into illicit drug use and did not have work there once the Covid-19 pandemic hit.

222 He then returned home - first to Mooroopna, and he had a job in Tatura for 12 months, and then to Shepparton, where he was employed by the same employer at which he did his apprenticeship. He believes he was due for a promotion at the time of his arrest. He had always maintained good relationships with his employers and colleagues.

223 However, Mr D'Elio has not been employed since being in custody. Instead, he has spent much of his time on remand reading the Qu'ran and learning Arabic in furtherance of his conversion to Islam. He tells Ms Strugnell that his conversion has provided a foundational and philosophical change in the way he views the world. He also instructs that it has been instrumental in understanding his poor choices (including his drug use) in the time leading up to the offending.

224 Turning to his relationships, Mr D'Elio had a significant intimate relationship between the ages of 18 and 21. He and his former partner ultimately went their own separate ways, but they remain on friendly terms.

225 He was once in a relationship with another woman whose ex-partner was so disapproving that he kidnapped Mr D'Elio at gunpoint, put him in the boot of a car, and dumped the car in the river. He managed to escape, but did not press for the man to be charged, as he feared further consequences. (As the Crown submitted, it might have been thought that that experience would deter him from doing a similar thing to another person, but, sadly, it didn't.)

226 Mr D'Elio had some previous history of recreational drug use, but this did not become a significant problem until the weeks leading up to the offending.

227 At 18, he began using ice as part of the nightclub culture in Shepparton. He then abstained for two years, when he focused on his health and fitness.

228 It seems that, after a brief flirtation with drugs when living with his father in Melbourne, he was reintroduced to ice by a peer at the gym in Shepparton in the months before his arrest. He is at a loss to explain why he took up the drug again at that time or why his use escalated so quickly. He ended up at what he calls a "drug house" (meaning Dear Court) and kept taking ice, such that he felt that he was in a perpetual state of intoxication. He was offered that address as a place to stay to straighten up, but his time there only resulted in him taking more drugs and not wanting to go home or to work because he was ashamed of the state he was in.

229 He last used drugs the day before his arrest. He has had no interest in seeking illicit substances while in prison. That said, Dr Dawson considers that it is likely that he has a drug dependency.[40]

230 As for his mental health, Mr D'Elio was diagnosed with depression a few years ago and was prescribed the anti-depressant venlafaxine (or Effexor). He remained on that medication until he started abusing ice. However, since being on remand, he has returned to the same prescribed anti-depressant, with reasonable effect.[41]

231 Latterly, he has also been prescribed buprenorphine, an opioid substitute. He is not sure he needs it, but he accepts that medication, simply because it is easier to take that course than it is to "[fall] into the prison politics of substances". It has helped him sleep too.[42]

232 Turning to the factors in mitigation, the first concerns Mr D'Elio's relatively young age at the time of his offending.

233 In my view, it is significant that he was only 24 at that time, and a good deal younger than his co-accused. In Azzopardi v The Queen, after referring to several authorities on the relevance of youth to sentencing, Redlich JA said this:[43]

[44] The general propositions which flow from these authorities [are] that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

234 While these remarks were made in the context of a case involving three 19-year-old offenders, they still have some application here, especially given Mr D'Elio has no prior criminal history and, as we shall see shortly, is otherwise previously of good character. But they apply with less force, given the gravity of his offending and given also the fact that, at 24, he was nearing (or perhaps at) what seems to be the upper threshold age for the application of these principles.

235 In those circumstances, while I do not consider that Mr D'Elio's relatively young age at the time of offending renders rehabilitation more important than other sentencing purposes (such as general deterrence, denunciation and just punishment), it nevertheless remains a significant consideration in sentencing him.

Absence of prior convictions and presence of previously good character

236 The second mitigating factor concerns Mr D'Elio's prior good character.

237 He has no prior convictions. He has only a single appearance in 2017 for a driving offence, for which he received an adjourned undertaking, without conviction. He has had no other appearances at all, and, therefore - and more significantly in the present context - none for offences of violence.

238 Further, I received in evidence two references that properly acknowledged the jury's verdicts but then went on to describe Mr D'Elio's previous character in very positive terms.

239 Simonetta Musolino has known Mr D'Elio and his family for over 25 years. He has cared for her children on many occasions. He has consistently displayed qualities of kindness, patience, and reliability, and has always been respectful, family-oriented, responsible, calm, thoughtful, and one who avoids conflict. In her view, the offending is completely out of character from the Dimitri D'Elio she has known for over two decades.

240 Karena Stone has known Mr D'Elio for five years through his mother, who is also a former colleague. Ms Stone would see him regularly, sometimes on a daily basis. In the time she has known him, he has been reliable, trustworthy and decent, and was always caring, considerate and respectful. She often witnessed his love of and loyalty to his family. She believes him to be a person of good moral character and one who is very compassionate.

241 In light of this evidence of his positive character traits, which I accept, and notwithstanding his descent into heavy use of ice in the period leading up to the offending, I shall sentence Mr D'Elio on the basis that he is otherwise of previously good character.

242 Third, in her report, Dr Dawson said that, after applying a structured risk assessment and case management tool, she assessed Mr D'Elio as having a "low risk of recidivism of general reoffending without treatment".[44]

243 She went on to say that individuals in this risk category have only a six percent chance of recidivism (i.e., of being incarcerated within one year). She explained that "[v]ery few factors elevate [Mr D'Elio's] risk profile, which largely relates to past substance use issues, as well as some issues with school behaviour, and related family dissatisfaction".[45]

244 I accept Dr Dawson's opinion in this regard, which was unchallenged.

Imprisonment likely to weigh more heavily on Mr D'Elio than others

245 Fourth, Dr Dawson also opined that "imprisonment is likely to weigh more heavily on Mr D'Elio than a person without his history, even without the presence of any particular diagnosable condition".[46]

246 She went on to explain her reasons for that opinion in the following way:[47]

[110] ... This is due to his vulnerability with regard to a false sense of community acceptance within antisocial peer groups, particularly given the circumstances of his alleged offending, his young age, and his naivety with regard to the prison environment. He presents with a higher vulnerability to experiencing issues with other offenders, as well as drug-seeking behaviours for the purposes of self-medicating and finding a place of familiarity and safety, as evidenced by his current use of buprenorphine and his multiple relocations, despite efforts to isolate himself and "keep his head down".

[111] A custodial sentence is likely to be a negative experience for Mr D'Elio; he is considered to be at risk of exploitation by other offenders in custody, and his naivety to the prison environment places him at a much higher risk than others. It seems fair to opine that imprisonment is likely to have a negative effect on Mr D'Elio's development and future behavioural outcomes through loss of positive social structures and educational and vocational access.

247 Again, I accept Dr Dawson's unchallenged opinion.

248 Equally, however, I accept the submission of Mr Gibson, who appeared with Ms Moran and Ms Sargent for the Crown, to the effect that this factor should not attract the same weight as it might have were imprisonment to weigh more heavily upon him as a result of a diagnosable mental impairment.

249 A fifth matter in mitigation concerns the particular hardship involved in the conditions of Mr D'Elio's remand for significant periods during the last three years.

250 For much of his time on remand, Mr D'Elio has been placed in a management unit, a high security unit, or protective units. In practical terms, this has meant that, for extended periods, he has been allowed out of his cell for only two hours a day. Also, he has had limited access to programmes. He has been told that he will not be able to access the employment-related programmes he desires to complete until he is sentenced.

251 Further, as I explained when sentencing Mr Clarke,[48] for the two-and-a-half weeks spent in pre-trial hearings in Shepparton, all three accused were housed in police cells overnight during the week. At these times, the lights in their cells were kept on all night, and police roused them from their sleep (if they could sleep at all) almost every hour on the hour. This, it was said, was done pursuant to a Victoria Police policy directed at the welfare of those in custody. Whatever the reason, these were inhumane and unnecessary conditions that made each accused's time in custody at Shepparton unduly onerous. The conditions were such that, because Victoria Police would not yield in the application of their policy, I ruled that a fair trial could not be conducted in Shepparton and that the trial must be moved to Melbourne instead.[49]

252 The sixth matter in mitigation concerns Mr D'Elio's prospects of rehabilitation.

253 Notwithstanding the gravity of his offending, that he maintains his innocence, and his counsel's related acceptance that he has no remorse, there is a range of other factors that, when balanced against the foregoing, convince me that his prospects of rehabilitation are very good.[50] Those factors include his relatively young age when he offended, the absence of prior criminal convictions, his positive character traits, the absence of an entrenched criminal belief system and orientation,[51] his insight into the poor choices he made with respect to drug use, his above average intelligence (despite his limited education),[52] his positive history of employment, his strong family support, and his low risk of recidivism.

254 A seventh, and final, matter urged in mitigation concerned Mr D'Elio's exposure, by his father, to family and personal violence and illicit drug use in his early childhood, as well as the resulting instability and dislocation. Ms Strugnell submitted that, against that background, the principles in Bugmy v The Queen[53] have some application in reducing Mr D'Elio's moral culpability for his offending.

255 There is some support for that submission in Dr Dawson's report, where she said this:[54]

[104] The links between an avoidant pattern of attachment organisation[55] and violent offending behaviour in adulthood can be made through the identification of unresolved childhood trauma, emotional detachment, and substance misuse, all of which are present for Mr D'Elio. That is, although he presents as "unfazed" by his upbringing, this is seen as a protective strategy, which without, he may experience emotions that he has no resources to deal with.

[105] This detachment from his emotions would be amplified by stressors, a decompensation in his mental state (such as depression), and by substance use. To some degree, these inherent difficulties explain Mr D'Elio's reported involvement in offending that he was otherwise not connected to, going along with peers and accepting substances, due to an air of apathy regarding his personal circumstances. However, it is noted that these factors have not previously predisposed Mr D'Elio to offending or violence.

256 As I understood him, Mr Gibson submitted that, while some weight could be accorded to so-called Bugmy considerations, that weight must be reduced to the extent that the offending was planned for a considerable period.

257 I accept that submission. It is difficult to see how the deprivation suffered by Mr D'Elio in his early childhood could have much, if any, effect on his moral culpability for offending that was planned and in contemplation for a considerable period, as the violent kidnapping was. There was plenty of time for him to reconsider and desist from this planned behaviour, and I am satisfied he had the wherewithal to do so.

258 However, I think that the Bugmy principles have some application to the more spontaneous aspects of his offending - namely, the fact that he went beyond the planned violence to Mr Gander and attacked him so seriously as to commit murder, and his subsequent decision to burn the body. In particular, consistently with the principles articulated in Bugmy, I accept that Mr D'Elio's "experience of growing up in an environment surrounded by [illicit drug use] and violence [has left] its mark on [him]", and it in part explains his "recourse to violence"[56] on these occasions, "such that [his] moral culpability for the inability to control that impulse [is] reduced".[57]

259 However, I consider that his moral culpability is reduced by only by a moderate degree. For, as damaging as his father's example is likely to have been, he also had the appropriate modelling of his mother and, later, his stepfather, for a large part of his formative years.

260 On the other hand, given his positive character traits and his lack of criminal history, I do not think that there is any - or any corresponding - need to increase the weight to be given to the protection of the community from Mr D'Elio on account of his early childhood depravation and the mark it has left on him.[58]

261 Next, I turn to Ms Stott's personal circumstances, as recorded in the psychological report of Patrick Newton[59] and other documents, and in the submissions of her counsel, Mr Sala. I shall commence with her family background.

262 Ms Stott is an only child to her parents, but her father has three older daughters from a previous relationship.

263 She was born in Shepparton. When she was three, her family moved to the Gold Coast, where she spent part of her childhood.

264 Her father worked in a timber yard until he was injured in a truck accident. He then worked as a cleaner and a labourer. Her mother worked as a ward clerk at the local hospital, as well as in hospitality and retail. Their relationship was strained at times but was free from serious conflict.

265 Ms Stott's mother died in 2020 from complications associated with the pandemic. Her father has multiple health problems. Consequently, he no longer visits her in person at the prison, but they have occasional video-link contact.

266 As for her education, Ms Stott went to primary school on the Gold Coast and in Shepparton. Initially, she was a good student academically, and was School Captain in Year 6, but she could be a bit rebellious.

267 Ms Stott's secondary schooling was at McGuire College, which is a former technical school. She enjoyed the practical focus there. However, she was bullied at times, and she would lash out in response and stick up for her friends, who were bullied too. She got into some fights, her behavioural adjustment deteriorated, and her engagement with studies faltered. She moved to Notre Dame College in Year 9, but was asked to leave partway through Year 10 because of her fighting and other behavioural problems.

268 After doing some labouring work, she completed Year 10 through a TAFE college. She ultimately returned to Notre Dame to do her Year 12 when she was pregnant with her first child.

269 As for employment, Ms Stott trained as a hairdresser in her mid-20s and worked intermittently in that field. She also worked on and off in a range of jobs, including in a fruit factory, as a floor manager in retail, and as a salon manager. She has also spent significant periods as a stay-at-home mum.

270 While in prison, she has worked as a team leader in textiles, albeit she is limited to two-and-a-half days a week because of her health conditions. Her supervisor has given her a glowing reference for her peer leader qualities, communication, problem-solving ability, self-management, and eye for detail, and for her great work ethic.[60]

271 Turning to her relationships, Ms Stott had relationships, when aged 15 and 16, that ended amicably. A later teenage relationship ended after six months, in the context of distress caused by the suicide of her boyfriend's brother.

272 Ms Stott and the father of her first child had a relationship that ended when he had an affair with another woman. At that time, their child was aged only two months.

273 She then had a series of relationships, many of which were marred by violence (some of it extreme), infidelity, and the impact of mutual substance abuse. One of those relationships was with Mark Shandley between 2012 and 2015, and it was particularly toxic and violent. He repeatedly assaulted and injured her. Further, he sexually assaulted her, and drugged her so that "he and his mates could have their way with [her]". She lived in a state of intense fear. She tried to leave him multiple times, but he would belt her when she did so. When she was finally able to escape his clutches, she did so at the cost of being homeless.

274 In 2017, Mr Shandley pleaded guilty in the County Court to offences connected with him driving at Ms Stott in a jealous rage and viciously jamming her between his vehicle and another. While police encouraged her to do so, Ms Stott did not pursue the vile sexual offences he committed against her during their relationship. However, at the same hearing, he was also convicted of the abduction and rapes of another woman. In total, he was sentenced to over 13 years' imprisonment with a non-parole period of ten years.[61]

275 Ms Stott and the father of her three younger children (who are aged nine, five and four) were together from 2015 to 2021. While their relationship was unstable because of their mutual drug use, she describes him as "a good guy". They had argued, but he was not violent. Their three children are in the care of his parents.

276 Ms Stott was in a brief relationship of sorts with Mr D'Elio at the time of the offending.

277 Ms Stott has a lengthy history of substance use dating to her teens. She has abused a wide range of substances and has been reliant upon them to escape her problems. She has also been physically addicted. Further, in Mr Newton's view, she has been deeply integrated into drug-using and criminal subgroups so that her substance use has been maintained by a combination of physical, emotional and social factors.[62]

278 She began drinking alcohol in her early years at school. She did so to "numb the grief" associated with the deaths of friends. Her drinking became especially heavy after her mother's death in 2020. She regards herself as an "alcoholic on the outside", and considers that she was "not a functioning person" at that time.

279 In her teens, she commenced cannabis use, which helped her sleep. Also, she had been prescribed "medical marijuana" to assist with pain management.

280 From her mid-20s, as part of "the party scene", Ms Stott used MDMA, amphetamines (or "speed"), and cocaine.

281 As the supply of speed decreased, she started using ice. Within a brief period, she was using ice on a daily basis, and she became dependent on it. One of her partners injected her with the drug against her will.

282 She began using GHB after her relationship with Mr Shandley. She did so as a substitute for alcohol and as a means of "coming down" from ice use.

283 Ms Stott also used prescription benzodiazepines, including alprazolam (Xanax or Kalma) and others. She was also prescribed less potent variants of these drugs, including diazepam (Valium) and temazepam, but took these at frequencies or doses that exceeded those prescribed. She was also prescribed opiate analgesia, including Oxycodone, but she did not abuse this drug.

284 In Mr Newton's opinion, Ms Stott's drug use has been sufficient to meet the criteria for a diagnosis of a substance-use disorder, and that this was at severe levels with respect to ice, GHB and alcohol at the time of her offending.[63]

285 Ms Stott had had no treatment for her drug use prior to her arrest. In the early stages of her incarceration, she went through withdrawal, which she found "a bit rough". Since then, she has regularly attended Alcoholics Anonymous and Narcotics Anonymous meetings, but has had no other drug-related treatment.[64]

286 In Mr Newton's opinion, Ms Stott demonstrated some insight into the negative impacts of her drug use upon her. She commented that drugs "destroyed" her life, had been instrumental in undermining the stability of her relationships, and had led her to make poor decisions and "stupid choices".[65]

287 She is determined to remain abstinent from drugs. To this end, she has engaged with self-help groups, which Mr Newton regards as positive. However, he considers that her understanding of what might be required to make her desire for abstinence real was incipient at best, and that she requires intensive, focused education and treatment prior to her release into the community.[66]

288 As for her mental health, Ms Stott gave Mr Newton a history of longstanding chronic emotional distress and trauma. In the past, she turned her distress upon herself in self-harming behaviours, such as "punching walls" and risky drug use and sexual behaviours, and turned it outwards through angry outbursts and "brawling" with others.

289 The Justice Health notes record a history of a suicide attempt in the context of "poor distress tolerance". This occurred after a traumatic relationship. It involved her walking into traffic, in the hope of being struck by a passing vehicle. She was stopped by either a friend or a passer-by.[67]

290 Ms Stott has attracted a variety of diagnoses over the years. The primary diagnosis has been post-traumatic stress disorder ("PTSD"), with secondary diagnoses of depressive disorder and borderline personality disorder also being noted.[68] Mr Newton considers a diagnosis of PTSD in partial remission is appropriate at the moment.[69] He also notes that Ms Stott is anxious generally, and more particularly about the impact of being separated from her children.[70] In his opinion, her depressive symptoms are such that she has a major depressive disorder.[71]

291 Mr Newton also opined that Ms Stott has maladaptive personality traits, which are an entrenched part of her personality. He agrees with the views of previous treating clinicians that she has a borderline personality disorder, but he would add that her disorder also has antisocial features.[72]

292 As for treatment of her mental ill-health, Ms Stott first participated in counselling at school as a teenager, but it was brief and her engagement was perfunctory. She next had counselling as part of a community correction order ("CCO") in 2014, but she engaged only superficially.

293 Her primary way of "managing" her emotional problems in the community has been her recourse to illicit drugs. While this brought her some relief, it has done so only at the cost of entrenching her problems further, destabilising her life more generally, and immersing her ever more in a dysfunctional sub-culture.[73]

294 Since her remand in late-2022, Ms Stott has been prescribed a range of medications, including the antidepressants sertraline, escitalopram, fluvoxamine, duloxetine and amitriptyline. She has also taken prazosin (Minipress) in an effort to control nightmares, and she has been trialled on the major tranquilisers olanzapine, chlorpromazine and quetiapine.[74]

295 While in custody, Ms Stott also had 32 sessions with a forensic psychologist prior to her trial. The focus of these sessions was upon her borderline personality disorder. She found this treatment to be helpful.

296 However, since the trial, she has been "taking a break" from this treatment in order to engage in trauma-focused counselling with WestCASA. This counselling commenced in 2023. By the time of the plea hearing, she had had nine sessions, which, encouragingly, she found to be "really good".[75]

297 Notwithstanding her poor school performance, Mr Newton is of the opinion that Ms Stott's use of language indicates that her intelligence falls within the high-average range. In his view, she would be likely to benefit from further education and training. He added that, all else being equal, such good intelligence would usually be considered to be a positive prognostic indicator.[76]

298 Ms Stott has a relatively modest criminal history for a range offences, most of which involve driving cars or "street" offences.

299 In 2010, when she was 25, she received a fine for driving while suspended and using an unregistered vehicle, and a one-month suspended sentence for another instance of driving while suspended.

300 In 2014, she was placed on a CCO for various offences, including possessing cartridge ammunition, carrying a prohibited weapon, handling stolen goods, possessing amphetamine, using an unregistered vehicle, failing to answer bail, and four instances of driving while suspended.

301 In 2015, she was placed on another CCO for breaching the previous CCO and for other offences, including going equipped to steal and four instances of shoplifting. In addition, on that occasion, she was convicted and discharged on multiple instances of driving while suspended, driving an unregistered vehicle, and failing to answer bail, as well as other driving, bail, drug and weapons offences. The magistrate also directed that she might see a solicitor about victims of crime assistance. Presumably, this related to her being a victim of Mr Shandley's violence.

302 In 2016, she was fined for driving offences and failing to answer bail. Later that year, after breaching her previous CCO, that order was confirmed.

303 In 2019, she was placed on an adjourned undertaking, without conviction, for unlicensed driving.

304 In 2022, she was again placed on an adjourned undertaking, but with conviction this time, for offences including receiving stolen goods and possessing cannabis.

305 Significantly, Ms Stott has no prior convictions for offences of violence, a matter to which I shall return.

306 Turning to the factors in mitigation, the first concerns Ms Stott's offer - which was made in April 2025,[77] well before the trial - to plead guilty to the principal offence of which she was found guilty, namely manslaughter. But that offer was rejected by the Crown.

307 In my opinion, this is a very significant mitigating factor. As well as showing her acceptance of responsibility for her role in Mr Gander's death, her offer meant that a trial against her could have been avoided. For she was acquitted of the arson. And while she pleaded not guilty to the separate charge of kidnapping, a plea of guilty to manslaughter could have taken into account the substance of the lead-up behaviour forming the basis of her offence of kidnapping.

308 While she did not plead guilty to manslaughter before the jury, it would have been forensically unrealistic for her to have done so, particularly in circumstances where she was still facing the charges of murder and arson as well, both of which she denied and in respect of which the jury has vindicated her.

309 Thus, in all the circumstances, I regard her offer to plead guilty to manslaughter as the equivalent of her pleading guilty to that charge.[78]

Conceded (to jury) should be found guilty of kidnapping

310 Second, and relatedly, despite Ms Stott's plea of not guilty to kidnapping, Mr Sala conceded in his final address that the jury should act on Mr Clarke's evidence and find his client guilty of that offence.[79] Ms Stott was not to know that Mr Clarke would give evidence, or that, if he did, what he would say about her behaviour on that night. While, after hearing Mr Clarke's evidence, she might have applied to change her plea on kidnapping, Mr Sala's concession to the jury was the next best thing.

Remorse and willingness to facilitate the course of justice

311 Third, these two foregoing matters lead me to two further factors in mitigation. In particular, given her offer to plead guilty to manslaughter and her concession to the jury that she was guilty of kidnapping, I am satisfied that Ms Stott is genuinely remorseful for her role in both of those offences, and that she has shown a willingness to facilitate the course of justice. That she is remorseful is also consistent with my observations of the way she conducted herself during the trial and the plea hearing.

Modest criminal history (no priors for violence)

312 Fourth, as we have seen, Ms Stott's criminal history is relatively modest, and does not include any convictions for offences of violence. While this is a mitigating factor in and of itself, like some other mitigating factors, it also tends to inform other important considerations, including her prospects of rehabilitation, to which I shall come shortly.

Imprisonment likely to weigh more heavily on Ms Stott than others

313 Fifth, in response to a specific question asked of him, Mr Newton offered the following opinion in the conclusionary part of his report:[80]

[85] Ms Stott's pre-existing [mental] conditions are such that she is likely to be more vulnerable to quotidian stressors than 'ordinary' prisoners: experiencing greater emotional lability which in turn could lead to interpersonal tension and other challenges within the custodial environment. While virtually any prisoner is likely to experience bouts of emotional distress, in Ms Stott's case these would be expected to be both more intense and more frequent. She is likely to experience a higher level of interpersonal problems with other prisoners and to have a greater need to access mental-health and other supports than is commonplace. Given the limitations on resources in [a] custodial environment, it is considered likely that her treatment needs will only partially be met and that she will therefore face episodic periods of elevated distress. To this extent, Ms Stott's experience of incarceration is likely to be somewhat more onerous than that of a 'typical' prisoner undergoing sentence.

314 I accept Mr Newton's opinion in this regard, which was unchallenged.

315 While I did not understand Mr Sala to raise this point directly on the plea, he did rely on the contents of Mr Newton's report. In any event, I am satisfied that there is some mitigation of sentence in the fact that Ms Stott's experience of incarceration is likely to be somewhat more onerous than that of a typical prisoner undergoing sentence.

316 Sixth, I accept that there is also some mitigation in the added hardship of three aspects of Ms Stott's particular custodial conditions while she has been on remand.

317 First, in her affidavit before the Court, Megan McClelland, who is the Assistant Commissioner of Corrections Victoria, deposed that, for most of her time on remand at the prison, Ms Stott has been housed in "protection" units.[81]

318 Second, Ms McClelland also addressed prison "lockdowns". In particular, she explained that, between April and October of last year, on 68 occasions, for an average of about six hours a time, Ms Stott was confined to her cottage accommodation during the usual daytime out-of-cell hours. Most of these lockdowns were attributable to staff absenteeism.[82]

319 Third, for the two-and-a-half weeks of the pre-trial hearings in Shepparton in May last year, Ms Stott, like Mr D'Elio and Mr Clarke, was subject to the same unduly onerous and inhumane regime of being woken or roused every hour at night while in the police cells.

Extra-curial punishment in having murder and arson hanging over head until verdicts

320 The seventh factor in mitigation is that, up until the jury's verdicts on 15 July 2025 - so, for over two‑and‑a‑half years after her arrest - Ms Stott had the strain and indignity of widespread reporting of allegations that she murdered Mr Gander and that she callously destroyed his body (and the Ford Territory) by fire. Yet she has been vindicated by her acquittal of those charges.

321 I accept that this has been a form of extra-curial punishment that has weighed heavily on Ms Stott, and all the more so when she lives in a small regional city.[83]

322 The eighth, and final, matter in mitigation concerns Ms Stott's prospects of rehabilitation.

323 Notwithstanding the gravity of her offending, her borderline personality disorder, her history of substance abuse, and her (modest) criminal history, there is a range of other factors that convince me that her prospects of rehabilitation are good.[84] Those factors include her offer to plead guilty to manslaughter, her concession that she was guilty of kidnapping, her remorse, the absence of any violence in her criminal history, her intelligence, her excellent work and compliance[85] in prison, her good progress with trauma-focused treatment,[86] and her strong desire to undertake further treatment (including drug and alcohol treatment).[87]

324 I am fortified in that assessment by a reference from Ms Stott's oldest child, her son Baily, who is now aged 22. He said this:[88]

... [My mother] has definitely had her ups and downs in life and has been through it all. Definitely made a lot of poor choices, but there has been a lot of good that she has done. I've known her to never give up, and [she] always pushes through adversity to try get to the light at the other end, but others have factored in to influence poor choices. She is a very outgoing person with a full heart there to help anyone in need. In the last [three] years, I've ... grown to have a very strong [bond] with [her] and [have noticed] a massive difference in her ways of life, and even thinking. [She] has made a huge change for the good, and I've never had so much faith in her success going onwards. She is a completely different person now to what she was then, and I've never been [prouder] of her pushing through all the hard times to finally start the right track and move on to a better life.

325 As Mr Sala submitted, notwithstanding the hardships of prison, Ms Stott's remand over the last three years or so appears to have operated as a catalyst for significant positive change in her. In his submission, there is good reason to accept that her rehabilitation has commenced in prison and that it can be fostered further through her eventual release on a substantial period of supervised parole. I agree, and shall say more about this later.

326 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, just punishment, denunciation, specific deterrence, protection of the community, and rehabilitation.

General deterrence, just punishment, and denunciation

327 In my view, general deterrence, just punishment and denunciation are important sentencing purposes for all of the offences in these matters.

328 Anyone minded to kidnap another in the manner Mr Gander was kidnapped by Mr D'Elio and Ms Stott must understand that, upon conviction, just punishment will be meted out by way of a substantial prison sentence. The same is true of the murder and manslaughter of Mr Gander. The law places great weight on the sanctity of human life. Further, those three offences must be denounced by the Court, and all the more when the motive for the kidnapping, and, in part, for the murder and the manslaughter, is retribution for informing on another to the police.

329 Similarly, where, as Mr D'Elio did, a person intentionally destroys another's car by fire, and by the same fire intentionally destroys the body of his kidnap and murder victim, and does so with the motive of getting rid of evidence of those offences, general deterrence and just punishment are important sentencing purposes that conduce to a substantial prison sentence. The sentence must also reflect the Court's strong denunciation of such a crime.

Specific deterrence and protection of the community

330 While the nature of Mr D'Elio's offending requires that specific deterrence and community protection be given some weight, I think that that weight is reduced considerably by his lack of criminal history, his previously good character, his low risk of recidivism, his very good prospects of rehabilitation, the weight of prison upon him, and the particular hardships he has experienced in custody.

331 Similarly, specific deterrence and community protection are of some weight in Ms Stott's case, but that weight is reduced considerably by her offer to plead guilty to manslaughter, her concession that she was guilty of kidnapping, her remorse, her lack of criminal history for offences of violence, her good prospects of rehabilitation, the weight of prison upon her, the particular hardships she has experienced in custody, and the extra-curial punishment she has already endured.

332 I consider it unlikely that either Mr D'Elio or Ms Stott would involve himself or herself in offences of these kinds again.

333 Rehabilitation remains an important purpose in sentencing both Ms Stott and Mr D'Elio, for at least two reasons. First, because I am satisfied that their prospects of reform are respectively good and very good, rehabilitation is a sentencing purpose that must be afforded significant weight in the sentencing calculus. Second, it is necessary to recognise the interplay between rehabilitation and protection of the community in the longer run. Ms Stott and Mr D'Elio will be released eventually. It is therefore in the community's interests that their prospects of rehabilitation be maximised, so that, when they are released, their risk of reoffending is as low as it reasonably can be, and their chances of successful reintegration into society are not crushed by unduly heavy sentences but that those chances are as strong as they reasonably can be.

334 Next, I note that all aspects of the sentences I shall pass are intended to conform with the principle of parsimony, as they must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

335 Next, I note that, in considering the appropriate sentences, I have considered current sentencing practices for these offences, as far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but, where known, they are nevertheless important in the sentencing synthesis.

336 In order to gauge current sentencing practices for these offences, I have had regard to sentencing statistics.

337 Kidnapping: Statistics kept by the Sentencing Advisory Council ("SAC") show that, for the period from July 2019 to June 2024, of the 64 charges of kidnapping (at common law) that were dealt with in the higher courts, the most common sentence was imprisonment (59 charges or 92 percent); the shortest term was less than a month; the longest was seven years; the median was two‑and‑a‑half years; and nearly 68 percent were under three years.[89]

338 Murder: For the period from 2019-20 to 2023-24, the SAC's statistics show that the average term of imprisonment imposed for murder under the standard sentence regime[90] (excluding life sentences) ranged from 20 years and one month (in 2021-22) to 24 years and ten months (in 2023-24). The average term over the five years of the survey was 23 years and two months.[91]

339 Manslaughter: For the same period, the SAC's statistics show that prison sentences for manslaughter averaged terms of between seven years and eight months (in 2019-20) and eight years and eight months (in 2021-22). The average term over the five years of the survey was eight years and four months; the median term was eight years and three months; and the most common term was seven to less than eight years.[92]

340 Arson: For the period from 2018-‍19 to 2022-‍23, the SAC's statistics show that, of the 138 people sentenced in the higher courts for arson, most (about 86 percent) received a term of imprisonment. The shortest term was one month, and the longest was eight years. The median term was two‑and‑a‑half years; the average term was two years and four months; and the most common term was less than one year.[93]

341 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether there were relevant prior convictions or not, and so on. Nevertheless, they do give some guidance.

342 Sometimes, case comparisons are useful in assessing current sentencing practices.

343 With this in mind, the Crown, helpfully, provided a table of sentences imposed for murder under the standard sentencing regime. Counsel also referred to some specific sentences for kidnapping,[94] manslaughter,[95] and arson.[96]

344 However, while some cases had a similar feature here or there to the present matters, I found none to be sufficiently similar to make a meaningful comparison. That said, while other sentences are not precedents to be applied or distinguished, those cases did give some general guidance.

345 Recognising the limitations of the foregoing sentencing statistics, the case comparisons offered, and the process of comparison itself, I am satisfied that the sentences I am about to impose are consistent with what I understand to be current sentencing practices for the four different offences.

346 In considering the sentence for murder, I have also had regard to the standard sentence for that offence, which, as I noted earlier, is 25 years' imprisonment.

347 The period specified as the standard sentence is "the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness".[97] The objective factors affecting the relative seriousness of an offence are to be determined "without reference to matters personal to a particular offender or class of offenders" and "wholly by reference to the nature of the offending".[98] Thus, the "matters personal" to Mr D'Elio - which include the mitigating factors - are not to be included in that assessment of relative seriousness.

348 As will be seen, the individual sentence I am about to impose for the murder is less than the standard sentence. However, I can say that, without regard to Mr D'Elio's personal matters (including the mitigating factors), the sentence on murder would have been a good deal longer.[99]

349 As required by the principle of parity among co-offenders, when determining the sentences to be imposed upon Mr D'Elio and Ms Stott for kidnapping, I have had regard to the relevant similarities and differences in each case, and also to those matters in relation to Mr Clarke and the sentence I imposed upon him for that offence (which was three years' imprisonment).[100]

350 In addition, in determining the sentences on both accused, I have had regard to the totality principle, particularly in considering the level of cumulation of the individual sentences and the resulting total effective sentences to be imposed. In considering the level of cumulation between the sentences for kidnapping and each homicide, I have also paid particular regard to the overlap between the assaults both forming part of the kidnapping and contributing to Mr Gander's death.

351 Finally, I turn to pass sentence, commencing with Mr D'Elio.

353 Balancing all matters as best I can, Dimitri D'Elio is convicted and sentenced as follows:

• for the kidnapping of Charlie Gander, six years' imprisonment;

• for the murder of Charlie Gander, 22 years' imprisonment; and

• for the arson of the Ford Territory, seven years' imprisonment.

354 I direct that one year of the sentence for kidnapping and three years of the sentence for arson be served cumulatively upon the sentence for murder, making a total effective sentence of 26 years' imprisonment.

356 This non-parole period amounts to about 65 percent of the total effective sentence, which is less than the ratio of at least 70 percent otherwise required by s 11A of the Sentencing Act on account of murder being a standard sentence offence.[101] However, while all matters both aggravating and mitigating affect the individual sentences, the directions for cumulation, the resulting total effective sentence and the non-parole period, the fact of, and the matters informing, Mr D'Elio's very good prospects of rehabilitation have especial weight when fixing the non-parole period. In those circumstances, but also allowing for the matters conducing to a longer non-parole period, I consider it to be in the interests of justice to depart from the minimum of 70 percent and to fix this particular non-parole period.[102] In my opinion, Mr D'Elio's chances of reform and successful reintegration into society will be improved by the potential for a long period on parole, which this non-parole period will allow. This, in turn, is likely to redound to community's benefit as well in the longer run.

357 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 1,137 days of pre-sentence detention be reckoned as served under this sentence.

358 Thus, not allowing for any emergency management days with which Mr D'Elio may be credited, his non-parole period should expire near the end of December 2039, when he will be 41, and his total effective sentence should expire near the end of December 2048, when he will be 50.

361 Balancing all matters as best I can, Kylie Stott is convicted and sentenced as follows:

• for the kidnapping of Charlie Gander, five years' imprisonment; and

• for the manslaughter of Charlie Gander, nine years' imprisonment.

362 I direct that one year of the sentence on kidnapping be served cumulatively upon the sentence for manslaughter, making a total effective sentence of ten years' imprisonment.

364 This non-parole period is towards the lower end of the conventional range of periods that might have been selected, both in absolute terms and as a proportion of the total effective sentence. However, again, while all the mitigating and aggravating factors have affected all aspects of the sentences, the fact of, and the matters informing, Ms Stott's good prospects of rehabilitation have especial weight when fixing the non-parole period.

365 As indicated earlier, I accept Mr Sala's submission that there is good reason to think that Ms Stott's rehabilitation has commenced and that it can be fostered further through her eventual release on a substantial period of supervised parole.

366 Further, on the material before me, I am satisfied that the appalling physical, sexual and emotional violence to which Ms Stott was subjected for three years at the hands of Mr Shandley, and some of the other damaging relationships she has suffered, are among the reasons she has had a somewhat dysfunctional life since then, one punctuated with the misery of homelessness and heavy use of illicit drugs. In turn, these are matters that have contributed to the context in which she came to commit the current offences.

367 For these reasons, and notwithstanding the gravity of Ms Stott's offending, and particularly her responsibility for complicity in acts that ended up killing Mr Gander, I think there is room for an element of mercy to be brought into account in sentencing her generally and particularly in fixing the appropriate non-parole period. It has been said many a time that there must always be a place in sentencing for the exercise of mercy "where a judge's sympathies are reasonably excited by the circumstances of the case".[103]

368 By fixing this non-parole period of six years on a total effective sentence of ten years' imprisonment, in addition to exercising an element of mercy,[104] I have sought to potentiate the fostering of Ms Stott's rehabilitation, which in turn should redound not only to her benefit but also to that of the community in the longer run.

369 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 1,137 days of pre-sentence detention be reckoned as served under this sentence.

370 Thus, not allowing for any emergency management days with which Ms Stott may be credited, her non-parole period should expire near the end of December 2028, when she will be 43, and her total effective sentence should expire near the end of December 2032, when she will be 47.

[3] Pursuant to ss 197(1) and (6) of the Crimes Act 1958 (Vic).

[4] As to the need for a change of venue from Shepparton to Melbourne, see R v Stott & Ors (Ruling 7) [2025] VSC 793.

[5] By way of agreement to commit the offences, pursuant to s 323(1)(c) of the Crimes Act 1958 (Vic).

[6] See R v Clarke [2025] VSC 794 at [6].

[7] Contrary to s 5(1) of the Firearms Act 1996 (Vic).

[8] Mr Michell was not a witness at the trial, as he had passed away well before then.

[9] In what follows, I have reproduced the relevant parts of the texts as written. However, when delivering these reasons, I shall attempt to read the texts aloud with obvious spelling and other corrections in mind, and by employing usual punctuation conventions.

[10] This explains why the CCTV camera in his street did not pick him up arriving home via the front door.

[11] This Snapchat image was never recovered, but I accept that it showed what is described.

[12] In his evidence, Mr Clarke sometimes referred to this as the Shepparton-Nathalia Road (see T 2575-2577), but he also accepted that he meant the Barmah-Shepparton Road (see T 2575.5-10). In my reasons for sentencing Mr Clarke, I too mistakenly referred to this as the Shepparton-Nathalia Road (see R v Clarke [2025] VSC 794 at [33]).

[13] I have applied the criminal standard of proof to matters potentially in aggravation and the civil standard of proof to matters potentially in mitigation.

[14] So much is apparent from the evidence detailed earlier concerning their viewing of Mr Gander's police interview and their communications with others.

[15] In coming to this view, I have had regard to, among other things, the evidence that Mr Gander's phone was turned off from late on the Friday evening, and the Crown's submission that I should be satisfied that the kidnapping commenced from Ms Stott and Mr D'Elio's attendance at the cabin. However, this is inconsistent with Mr Clarke's evidence of the lack of any animosity towards Mr Gander when at his house from 1:44 a.m. the next morning. Further, I cannot exclude the reasonable possibilities that, from late on the Friday evening until their arrival at Mr Clarke's house at 1:44 a.m., Mr D'Elio, Ms Stott and Mr Gander were driving about the place in the two cars trying to buy drugs and that Mr Gander's phone was turned off voluntarily by him as a precautionary measure. While I cannot be sure, it seems likely - or at least reasonably possible - that the calls between Mr Gander and Ms Stott at 11:02 p.m. and 11:07 p.m. on the Friday were made when the they had left the holiday village in separate cars (i.e., after the Snapchat image of the three pairs of feet was sent at 10:53 p.m.), which is also consistent with the hypothesis that there was no kidnapping on foot at that time.

[16] Led by Mr Clarke in the Territory.

[17] This is the effect of Mr Clarke's evidence, which, as I have said, I accept.

[18] Again, this is consistent with Mr Clarke's evidence and the inferences to be drawn from it and the Crown's circumstantial case.

[19] In any event, while Mr D'Elio's alleged admissions to Mr Stott, as she conveyed to Mr Clarke when they stopped on the Barmah-Shepparton Road, might support that view, they are hearsay as against Mr D'Elio and therefore are not admissible in his separate trial and plea hearing.

[20] In doing so, I am satisfied that the effects of the high level of methamphetamine found in his system did not cause his death. If the jury had not excluded that possibility on the criminal standard, they could not have been satisfied of either murder or manslaughter.

[21] By dangerous, I mean such that a reasonable person in Ms Stott's position would have realised that, in Mr D'Elio assaulting him as agreed, there was an appreciable risk of serious injury to Mr Gander (see, e.g., Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325 & 332-333 (per Mason CJ, Toohey, Gaudron and McHugh JJ)).

[22] Again, this is consistent with Mr Clarke's evidence and the inferences to be drawn from that evidence and the Crown's circumstantial case.

[23] Again, this is consistent with Mr Clarke's evidence, which I accept, the Crown's circumstantial case, and inferences to be drawn from that evidence.

[24] Experience tells that similar thoughts are often held by the parents of homicide victims. They always strike a chord, and achingly so. As I have observed previously, thoughts of this kind echo the words attributed to the late Rose Fitzgerald Kennedy: "It is sometimes said that 'time heals all wounds'. I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone" (see, e.g., R v Lucas [2021] VSC 81 at [150], fn 33). Mrs Kennedy had an extraordinary life, one filled with great joy and privilege, but marred by the horrible personal tragedy of the murders of two of her famous adult sons less than five years apart. Despite this, she lived to the remarkable age of 104 (22 July 1890 to 22 January 1995).

[25] See s 320 of the Crimes Act 1958 (Vic).

[26] To the extent that the same assaults contributed to his death, the kidnapping overlaps with the offences of murder and manslaughter, which is part of the reason there must be a substantial degree of concurrency between the sentences for those offences. See further below.

[27] See s 3 of the Crimes Act 1958 (Vic).

[28] R v De Simoni (1981) 147 CLR 383; and see also, e.g., R v Newman & Turnbull [1997] 1 VR 146.

[29] See, e.g., DPP v England [1999] VSCA 95; [1999] 2 VR 258 at 263[16]-268[37] (per Brooking JA; Batt JA and Chernov JA agreeing (at 268[41]-269[42])). More recently, see also, e.g., DPP v Timalu [2024] VSCA 192 at [64]-[65] (per Emerton P, Priest and McLeish JJA); and my reasons in R v Lynn [2024] VSC 635 at, e.g., [91] & [93].

[30] See s 5 of the Crimes Act 1958 (Vic).

[31] See s 197(7) of the Crimes Act 1958 (Vic).

[32] Report of Dr Dawson (22 September 2025).

[33] That is to say, his biological father.

[36] And presumably its predecessor departments.

[37] See also the report of Dr Dawson at [104] (which is extracted below for another purpose).

[38] Report of Dr Dawson at [21]-[23].

[43] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43 at 57[44] (Coghlan and Macaulay AJJA both agreed with Redlich JA).

[44] Report of Dr Dawson at [98]; and see generally at [91]-[99].

[47] Report of Dr Dawson at [110]-[111].

[48] See R v Clarke [2025] VSC 794 at [115].

[49] See R v Stott & Ors (Ruling 7) [2025] VSC 793.

[50] In assessing his prospects of rehabilitation as very good, I have done so in the context of employing a taxonomy of prospects ranging from hopeless, to poor, to reasonable, to good, to very good, and to excellent.

[53] Bugmy v The Queen (2013) 249 CLR 571.

[54] Report of Dr Dawson at [104]-[105] (footnotes omitted).

[55] Which, in her opinion, he had developed (report of Dr Dawson at [101]-[103]).

[56] While the burning of Mr Gander's body may not be the type of "violence" the High Court had in mind on the facts in Bugmy, I consider it is the sort of behaviour that is capable of falling within those principles. While many a human being is cremated after death, that, of course, is a decision taken by the deceased's family, usually in conformity with the deceased's known wishes, and occurs as part of a solemn ritual. But it strikes me as a horrible thing for a murderer to do - for not only does it deprive the deceased and his or her family of that decision, as well as denying the family the opportunity to see their loved one for the last time, but it is so disrespectful to the deceased and his or her family, so destructive, so lacking in human dignity, as to be something akin to violence. Yet, as I have said, I accept Mr D'Elio made this decision in a panic, albeit with a motive of self-protection.

[57] See Bugmy v The Queen (2013) 249 CLR 571 at 594[43]-595[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[58] See Bugmy v The Queen (2013) 249 CLR 571 at 595[44]-[45].

[59] Report of Mr Newton (4 October 2025).

[60] See the report by Angela, Women's Employment Specialist, Employment Pathways Team, Reintegration and Engagement Services Division, Corrections Victoria, Department of Justice and Community Safety (1 December 2025).

[61] See DPP v Shandley [2017] VCC 279 (Judge Maidment).

[64] Report of Mr Newton at [46]; see also the affidavit of Megan McClelland, Assistant Commissioner, Corrections Victoria (7 November 2025) at [31].

[70] Report of Mr Newton at [53]-[56].

[71] Report of Mr Newton at [58]-[59].

[72] Report of Mr Newton at [66]; see also [62]-[67].

[75] Report of Mr Newton at [33]; see also WestCASA report (5 December 2025).

[77] Mr Sala could only speak of the offer made while he was briefed for the trial. He was unsure whether an offer had been made before he became involved in the matter.

[78] There is no equivalent s 6AAA of the Sentencing Act 1991 (Vic) in respect of a declaration of the sentence that would have been imposed but for an accused's offer to plead guilty to an offence when that offer was rejected by the Crown and the accused has been found guilty of that offence. And courts must not engage in two-stage sentencing, which I won't. Nevertheless, to give some idea of the weight I have accorded to Ms Stott's offer to plead guilty to manslaughter, including the effect of that offer on other mitigating factors (such as remorse and her prospects of rehabilitation), I can indicate that, had Ms Stott not made that offer, her sentence for manslaughter, and therefore her total effective sentence (given that the manslaughter sentence would be the base sentence), are both likely to have been about three years longer (or perhaps as much as three-and-half or four years more) than the individual sentence on manslaughter and the total effective sentence I am about to impose.

[81] Affidavit of Ms McClelland (7 November 2025) at [7]-[8].

[82] Affidavit of Ms McClelland at [13]-[14] & [18]-[19].

[83] When sentencing Mr Clarke, I took the same matter into account in his favour. See R v Clarke [2025] VSC 794 at [116].

[84] In assessing her prospects of rehabilitation as good, as I did when assessing Mr D'Elio's prospects, I had in mind a taxonomy of hopeless, poor, reasonable, good, very good, and excellent.

[85] Affidavit of Ms McClelland at [30.

[88] Reference of Baily McCormack-Stott (10 December 2025) (I have made some minor edits to the text).

[89] Sentencing Advisory Council, SACStats, Kidnapping (common law), Higher courts, 1 July 2019 to 30 June 2024.

[90] Section 5B(2)(b) of the Sentencing Act 1991 (Vic) provides that, "[in] sentencing an offender for a standard sentence offence, a court[,] ... despite s 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied".

[91] Sentencing Advisory Council, Sentencing Snapshot 294: Murder - Sentencing tends in the higher courts of Victoria 2019-20 to 2023-24.

[92] Sentencing Advisory Council, Sentencing Snapshot 295: Manslaughter - Sentencing tends in the higher courts of Victoria 2019-20 to 2023-24.

[93] Sentencing Advisory Council, Sentencing Snapshot 287: Arson - Sentencing tends in the higher courts of Victoria 2018-19 to 2022-23. In addition, for the period from July 2019 to June 2024, of the 207 charges of arson dealt with in the higher courts, the most common sentence was imprisonment (178 charges or 86 percent); the median term was one‑and‑a‑half years; and about 78 percent of those terms were of less than three years (Sentencing Advisory Council, SACStats, Kidnapping (common law), Higher courts, 1 July 2019 to 30 June 2024).

[94] On kidnapping, Mr Terry and Ms Skvortsova, who appeared for Mr Clarke, referred to DPP v Morley-Corrin [2016] VCC 1559 (2 yrs 8 mths); DPP v Odisho [2021] VCC 325 (2 yrs 2 mths; NB: kidnapping under s 63A, Crimes Act 1958 (Vic), not at common law); DPP v Collison & Garratt [2021] VCC 2189 (2 yrs on C; 12 mths on G as part of aggregate sentence); DPP v Lukic [2016] VCC 359 (16 mths x 2); and DPP v Ghadami & Samimi [2019] VCC 1146 (12 mths); and Mr Gibson referred to DPP v Thorn [2023] VSC 702 (11 yrs); and DPP v Bottom & Smith [2023] VSC 717 (7 yrs & 7½ yrs for false imprisonment).

[95] On manslaughter, Mr Sala referred to R v Murphy & Watson [2001] VSC 347 (for W, 8 yrs for manslaughter; also 8 yrs for kidnapping plus sentences for other offences, including aggravated burglary and false imprisonment; TES of 10 yrs; NPP 8 yrs).

[96] On arson, Mr Terry and Ms Skvortsova, who appeared for Mr Clarke, referred to Hach v The Queen [2018] VSCA 196 (12 mths + CCO 5 yrs); DPP v El Kinouni [2019] VCC 431 (9 mths); DPP v Secombe [2016] VCC 1158 (8 mths); DPP v Carter [2019] VCC 2243 (307 days + CCO); DPP v Perez [2021] VCC 756 (15 mths + CCO; 12 mths + CCO); and DPP v Payne [2017] VCC 347 (512 days).

[97] See s 5A(1)(b) of the Sentencing Act 1991 (Vic).

[98] See s 5A(3) of the Sentencing Act 1991 (Vic).

[99] See ss 5B(4)(a) and (5) of the Sentencing Act 1991 (Vic).

[100] See R v Clarke [2025] VSC 794 at [141].

[101] In particular, see ss 11A(1)(b), (4)(b) and (5)(b) of the Sentencing Act 1991 (Vic).

[102] See ss 5B(4)(b) and (5) of the Sentencing Act 1991 (Vic).

[103] Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589 at 590[1] (per Maxwell P, Nettle, Neave, Redlich and Weinberg JJA), citing R v Osenkowski (1982) 30 SASR 212 at 212-213 (per King CJ). Their Honours also referred to Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269 (per Windeyer J); R v Kane [1974] VicRp 90; [1974] VR 759 at 766 (per Gowans, Nelson and Anderson JJ); R v Clarke [1996] VicRp 83; [1996] 2 VR 520 at 523 (per Charles JA, with whom Winneke P and Hayne JA agreed); DPP (Cth) v Carter [1998] 1 VR 601 at 607 (per Winneke P); R v Miceli [1997] VSC 22; [1998] 4 VR 588 at 592 (per Tadgell JA) & 594 (per Charles JA); and DPP v Najjar [2009] VSCA 246 at [11] (per Coghlan AJA, with whom Ashley JA and Weinberg JA).

[104] A week last Friday, I saw a tribute gig to the great American singer-songwriter Lou Reed. When the band played Caroline Says II, which I had almost forgotten (although I was only nine when it was released, in 1973), I couldn't help but think of Kylie Stott. The song could have been written about her (and many other women who suffer such harrowing abuse), for among its lyrics are these: "Caroline says/as she gets up off the floor/Why is it that you beat me/it isn't any fun; Caroline says/as she makes up her eyes/You ought to learn more about yourself/think more than just I". They are dark and confronting thoughts, but they must be all too real for those in similar situations. Two nights later, I saw more musical genius, this time in the form of the (mostly) Australian band Nick Cave and The Bad Seeds. Like Lou Reed, Nick Cave has written many dark songs. As it happens, he also knows the pain of losing a child, twice. As a solo on the piano, he closed with the beautiful Into my Arms, with all of us singing along. And I found myself thinking of this case again. The song starts like this: "I don't believe in an interventionist God/But I know, darling, that you do/But if I did, I would kneel down and ask him/Not to intervene when it came to you/Oh not to touch a hair on your head/Leave you as you are/If he felt he had to direct you/Then direct you into my arms/Into my arms, O Lord/Into my arms, O Lord/Into my arms, O Lord/Into my arms". We know Charlie Gander was cherished by his family. But I wondered whether Ms Stott has known love like that from any of her partners. If she hasn't, I hope she gets to experience something similar one day. It wouldn't be that much to ask.