R v Verdins [2005] VSC 479

1 Mark Verdins you have pleaded guilty to the murder of Leanne Elliott and the manslaughter of Kevin James Bertram on 17 September 2003.

2 Ms Elliott had been your girlfriend for a number of years. You murdered her by shooting her twice in the chest, using a home made pen pistol. It is unclear when or where you shot her, but she was found dead in the front seat of your Holden Senator vehicle which had run off the Monash Freeway at Chadstone, in the vicinity of the area between the High Street Overpass and Warrigal Road.

3 Mr Bertram died as a result of injuries he sustained after your car which was travelling at speeds of between 180 and 200 kilometres per hour had driven into the rear of his vehicle which was travelling at approximately half that speed. Mr Bertram's vehicle burst into flames after the collision and rolled, before stopping upside down on the median strip. Passing motorists were unable to free Mr Bertram from his burning car and Dr Michael Burke, the forensic pathologist who examined his body, considered that he died whilst being incinerated inside the burning vehicle.

4 You were charged with murdering both Ms Elliott and Mr Bertram. You pleaded guilty to the charge of murder of Ms Elliott at the earliest opportunity and offered to plead guilty to a charge of culpable driving in relation to Mr Bertram's death. Eventually, you pleaded guilty to a charge of manslaughter by unlawful and dangerous act, shortly before your trial was to commence. The unlawful and dangerous act was constituted by your dangerous driving at speeds of between 180 and 200 kilometres per hour shortly before the collision.

5 The chronology of events is unclear and should be considered in the context of your life generally and your relationship with Ms Elliott.

6 You were born on 20 May 1980 and so, were 23 years old at the date of your offences. Your parents separated when you were 11 and you lived with each of them over the years. Your mother suffered from post-natal depression and has said that you had a difficult childhood as a result. She told Mr Watson- Munro the psychologist who gave evidence in the plea, that she was far from adequate as a mother and felt that her failure to protect you may have resulted in your vulnerability as an adult.

7 You were living at your father's house when you met Ms Elliott while you were still at school at Salesian College. She moved into your father's house in 1998 to live with you whilst you were finishing your Year 12 studies. She was studying psychology at Swinburne TAFE. In 1999 you studied engineering and computer systems at RMIT. In the year 2000 you began work for the Kingston City Council as a data entry operator. You remained working there until your offences in September 2003.

8 In 2002 Ms Elliott moved out into an investment property which you had bought. You ended your relationship with her that year, on the basis that you thought it was important that you each spend time with other people. She was upset with the decision. However, you did not establish any new relationship and were devastated when you found her with another man. You resumed your relationship, but remained suspicious of her afterwards. She did not live with you, but spent several nights each week with you at your father's house. She complained to her mother and sister that you were controlling and demanding.

9 About six weeks before her murder Ms Elliott met another man with whom she was happy. She told you that your relationship was over on 19 August 2003. You could not accept her decision. Your father noticed a change in your behaviour very soon after she left the house. You cried frequently, lost interest in your normal activities and stopped eating the meals he had prepared for you. He was concerned enough to refer you to the local doctor who gave you some days off work, but did not prescribe any medication. He said that your friends rallied and tried to distract you by organising activities. Your close school friend, Mr Michael Bukraba said that you had been a cheerful and reliable person throughout the time he knew you but that become different after the break up with Ms Elliott. You were emotional and he became concerned that you were suicidal.

10 Your manager, Mr Chan, noticed you looking sick and unfit for work, about a month before 17 September. You wept when he enquired as to what was wrong. He stopped asking questions as the month progressed because they would provoke an emotional outpouring. He suggested that you take advantage of the counselling services offered by your employer, but you did not avail yourself of the opportunity. Mr Chan noted that your performance improved about two weeks before 17 September 2003.

11 You wrote letters to Ms Elliott expressing your love. You rang her mobile phone so often that she threatened to change her number. On 1 September 2003, she told a friend that she had 99 missed calls on her mobile phone. On 5 September 2003, you told a friend that you had emailed her 50 times over a three week period, sent her 150 text messages and called her 400 times. She urged you not to let the break up ruin your life, reassuring you that you had much to live for. She was concerned that you were suicidal. You even wept when stopped by police for erratic driving on 10 September. You began to drink to excess. Senior counsel said on your behalf that you were a young man not coping with the reality of the breakdown of your relationship.

12 Finally, on the day of the murder, you had begged Ms Elliott to meet you, so that you could both express your anger and settle matters between you. You told her about a letter and a videotape you wanted to return to her. You agreed to meet at 8.00 pm. Your father told the Court that he had tried, unsuccessfully, to comfort you that evening before you went out. He described your eyes as glazed, lifeless and unemotional. Before you left home you had neatly spread out on your bed the gifts given to you by Ms Elliott. At 7.57 pm you sent a message to your friend, Mr Aaron Brenner, which disturbed him. It said:

"My name is Mark Verdins. You know I am a good person, please don't think otherwise."

13 Mr Brenner contacted your father and tried to contact you but your phone was diverted. You were seen at about 8.07 pm by witnesses near Sunmore Close Heatherton, driving at speed, with Ms Elliott's car following. Both cars were seen to have parked. Ms Elliott's car was ultimately found parked in Sunmore Close.

14 When or where you shot Ms Elliott is not known. I am only satisfied that it occurred at some point in time before your car collided with that of Mr Bertram. I am also satisfied that you shot Ms Elliott twice in the chest and that one of the shots was a contact shot, in other words that you placed the pistol directly against her clothing and fired. After the first shot, you were obliged to unscrew the homemade pistol, in order to remove the fired cartridge and to insert another bullet, to be in a position to fire a second into her chest. I also find that after leaving the place where your car had been seen parked, you drove to where you were first seen on the Monash Freeway near the High Street Overpass, driving erratically, at a speed of about 160 kilometres per hour, with one hand on the steering wheel, just before 8.50 pm. I am not satisfied as to what transpired in the meantime.

15 I am satisfied that at some point between the time when your car was parked and when it collided with Mr Bertram's car, you also shot yourself in the mouth. The bullet ricocheted off the hard palate of your mouth and ended up in your oesophagus. I have considered the submissions made in relation to the place and time of what is accepted to be a suicide attempt on your part, but am not satisfied as to where or when that event occurred.

16 Witnesses saw you swerve, changing lanes and driving across the outbound lanes of the freeway to avoid vehicles in your path, before you drove straight ahead into the rear of Mr Bertram's car causing it to burst into flames. His vehicle was travelling at a speed in the vicinity of between 89 and 100 kilometres per hour or around half your speed. Your car then left the road.

17 You were taken to the Alfred Hospital by ambulance. An ambulance officer reported that you were co-operative and conscious, but confused and displayed signs of retrograde amnesia consistent with some earlier loss of consciousness. On the way to hospital, you frequently asked what had happened and whether you had hurt anybody. A bullet was removed from your oesophagus by operation. Twelve rounds of .22 calibre ammunition were found in your clothing at the hospital and the gun was found on the floor of your car.

18 You were admitted to the psychiatric unit at Port Phillip prison and were kept on suicide watch subsequently at the prison. You have been housed in the Alexander South Youth Remand Unit at the prison for young offenders between the ages of 18 and 25 who have never been in prison before.

19 You were found to have suffered a closed head injury. I accept the medical opinion to the effect that, if the head injury was caused by your gunshot wound, it was reasonably possible that you were driving your vehicle at some time before the collision with some impairment of your conscious state which resulted in some degree of confusion and decreased ability for thought processing. There was insufficient evidence to satisfy me that your head injuries were caused in any other way.

Victim Impact statements

20 Before I go on to deal with the submissions that were made on your behalf I will refer to the victim impact statements tendered to the Court. These statements describe in the most moving terms the impacts of the deaths of Ms Elliott and Mr Bertram upon those who loved them.

21 Ms Elliott's parents and her sister have written about the terrible effects of their loss of a beautiful young woman in the prime of her life.

22 Mr Bertram's wife and sister and parents describe the huge gap left in their lives by their loss of a fine man, the father of a young son.

23 They have suffered and continue to suffer in so many different ways. It is impossible to adequately describe the extent of their pain but I have taken into account all that they have said.

Mitigating factors

24 Senior counsel making the plea on your behalf submitted that the Court should take into account that you were depressed at the time of your crimes. I accept the medical evidence confirming your depressed state from Dr Jenkins, a psychiatrist at the Alfred Hospital, who diagnosed you to be suffering from major depression some two days after the incident and Dr Lester Walton, a psychiatrist, who agreed with Dr Jenkins . Dr Walton concluded that you were properly described as having suffered from a major mental disorder.

25 Mr Watson-Munro examined you on 25 August and 9 September 2005. It was his opinion that you were suffering from a major psychological decompensation as a result of your inability to come to terms with the end of your relationship with Ms Elliott. He said that your downward spiralling mood had been exacerbated by substance abuse involving ecstasy, amphetamines and alcohol. Your anxiety in his view would have impacted on your ability to function in the community and to solve problems. Mr Watson- Munro told the court that you were perhaps more vulnerable than most people to the effects of the breakdown of a relationship.

26 I have taken your depression into account in sentencing you. The authorities make it clear that your depressed condition moderates the requirement for general deterrence in this case, even though no psychiatric condition has been identified.

27 The importance of your relative youth and immaturity as sentencing considerations was also emphasised in the course of the plea. It was submitted to be an important and perhaps a very important factor given your lack of any relevant prior convictions and what were said to be your strong prospects of rehabilitation. The weight to be attached to your youth is to be considered in the light of all the circumstances of the case.

28 I accept the evidence that your prospects of rehabilitation are good. Mr Watson-Munro noted that you have the strong support of your parents which, in his view, would be significant in relation to your rehabilitation. Ms Anne Hooker, the manager of the Youth Remand Unit for young offenders at Port Philip Prison and Mr Rodney Boyd, a businessman, gave evidence about your involvement in educational and training programs at the prison and spoke positively about your achievements.

29 I also accept the evidence from your father, Mr Bukraba, Ms Hooker, Dr Walton and Mr Watson-Munro that you are genuinely remorseful.

30 Others in the community must nevertheless be deterred from responding to the breakdown of a relationship in the way you reacted. Behaviour such as yours is totally unacceptable.

31 Ms Elliott died because she had decided to move on and you would not accept her decision to end your relationship. Your attack on Ms Elliott was premeditated. You brought a pistol and ammunition to a pre-arranged meeting. You then shot Ms Elliott not once, but twice, and there was an interval in between the shots, during which you got rid of the fired cartridge and reloaded the weapon.

32 In relation to the manslaughter of Mr Bertram, Mr Dunn submits that it should be taken into account that the collision occurred after you had shot Ms Elliott and had also tried to kill yourself by shooting yourself in the mouth. I accept his submission that these circumstances are significant in relation to your sentence for this offence. I must also take into account the background matters to which I have already referred.

33 Mr Dunn submits that the court should find that your driving was compromised and, therefore, less blameworthy than the driving of someone not so affected, although he acknowledges that you had the requisite intent required to be guilty of the crime of involuntary manslaughter by unlawful and dangerous act.

34 Whilst your driving may have been compromised, as senior counsel for the prosecution points out you chose to shoot yourself in the mouth and to drive dangerously on the freeway. You did not choose to kill yourself in a way that would not endanger others. As a result of your choice, another innocent man driving home that night was killed. Once again, it is important that other members of the community must be deterred from using their vehicles on a public highway in such a way.

35 I have considered the appropriate penalty for your offence of manslaughter bearing in mind the sentences to which I was referred. I am also conscious that sentences imposed in other cases are of limited assistance in differing factual circumstances.

36 I have taken into account the mitigating factors I have mentioned including your depressed state, your relative youth, your prospects of rehabilitation, and your remorse, together with your early plea of guilty in relation to the charge of murder, your offer to plead guilty to a charge of culpable driving and your plea in relation to the charge of manslaughter. I do not consider that the relatively minor offences for which you have been convicted in the past are relevant to your present sentence.

37 I sentence you to 18 years' imprisonment in relation to the murder of Ms Elliott and 9 years' imprisonment for the manslaughter of Mr Bertram.

38 It has been argued that, whilst it would be proper to order a degree of cumulation, the degree of cumulation should be moderate because the behaviour all occurred in one episode and as a result of the effects of the principles of totality and the need to avoid a crushing sentence.

39 The incidents are linked in the sense that they occurred within a relatively short space of time and I am satisfied that your state of mind whilst driving was affected by the fact that, at some point, you had murdered Ms Elliott and shot yourself in the mouth. However, I consider it significant that you placed yourself on the freeway at the relevant time, rather than somewhere else where the effects of those things would not have impact on someone else. Accordingly, I will order that 5 years of your sentence for manslaughter be served cumulatively upon the sentence in relation to the crime of murder.

40 I sentence you to a total of 23 years' imprisonment. Bearing in mind the matters to which I have referred in fixing your sentences and, in particular, balancing the need for general deterrence on the one hand, and your relative youth and good prospects of rehabilitation, on the other, I fix a minimum non-parole period of 18 years.

41 I declare under s.18 of the Sentencing Act 1991 that the period of 801 days you have spent in detention be reckoned as the period of imprisonment already served under the sentence.