The Queen v BA and Stanley [2019] VSC 90

2 In the proceedings in this Court on 29 November 2018, I heard the prosecution opening, Victim Impact Statements, submissions on behalf of each of you in relation to the sentence that I should impose, and legal submissions on that topic from all counsel.

3 The cause of the delay from 29 November until today has primarily been the notice of forfeiture filed by the prosecution in relation to real estate property connected with this matter. The sentence depended on the outcome of that application. That application has since been withdrawn.

4 The maximum penalty for the offence of manslaughter is 20 years' imprisonment, and it is now my responsibility to sentence both of you in relation to this offence.

5 The death of Mr Whimpey occurred in circumstances where he owed money to you, BA, in relation to what was effectively a drug debt. The attack on the deceased occurred in circumstances where you, BA, as the instigator, and you, Brendan Stanley, as his assistant, intended to physically confront the deceased man for the purpose of recovering the money that was owing to Mr A.

6 Mr Whimpey was, by trade, an automotive electrician. Between March 2016 and his death in October 2016, he had ceased working and, as is prevalent amongst all the participants in this case, had engaged in significant drug use during that period.

7 You, BA, had known the deceased since attending secondary school together. In more recent times, you and he were involved in the use of drugs and, as I follow it, you were his drug supplier.

8 You, Brendan Stanley, came to know Mr A through the drug scene in the western suburbs of Melbourne and your relationship with him also involved you, BA, assisting you, Brendan Stanley, to meet a drug debt that was owing to the extent of about $4,000.

9 During the prosecution opening, the Senior Crown Prosecutor detailed a number of communications between the two of you. That information leads to the conclusion that you, BA, arranged for you, Brendan Stanley, to assist in recovering the drug debt owed to you, BA, from the deceased and that your assistance, Brendan Stanley, was in lieu of payment of your own drug debt owing to Mr A.

10 So far as Mr Whimpey was concerned you, BA, had previously supplied drugs to him on credit. The drugs Mr Whimpey obtained from you was an amount of about an ounce of methylamphetamine. That quantity of the drug was apparently valued at about $4,000. In relation to the money you claimed was owed by him to you, he had made no payment of any kind. Again, during the course of the opening, the Prosecutor referred to a series of communications, that are not in contention, between you and the deceased over a period of time. They reflected your intention to contact him and obtain payment of the value of the drugs that you had provided to him.

11 On 23 October 2016, the deceased man was again contacted. During a conversation at about 8.38pm on that day, he agreed to meet with you, BA, at the Keilor Motor Inn apparently for the purpose of further discussing the money he owed.

12 According to the prosecution opening, at 9.08 pm on that day, you, BA, sent the following SMS to you, Brendan Stanley: "You asked if I needed your help, I need your help", which was immediately followed by, "Call me". After a series of other conversations, at about 10.15pm on 23 October 2016, you, BA, arrived at room 204 at the Keilor Motor Inn. You went inside where you smoked a small quantity of methylamphetamine with the deceased and his associates. You and the deceased then left a short time later in your vehicle. You drove the deceased to an address in High Street, Reservoir, arriving there at 10.45 pm to see an associate.

13 At 11.24 pm, the two of you spoke on the phone. At 11.31pm you, BA, sent two SMS messages to you, Brendan Stanley, which said "Bindowan Drive Hoppers Crossing" and, "Leave now. Message me when you get there. I'm leaving Reservoir now". There were then a series of further connections between the phones of the two of you.

14 RA, the older brother of you, BA, owned a one-acre property at 75 Bindowan Drive, Hoppers Crossing. That property had only one large shed on it. The shed was used to store two commercial charter fishing boats, one recreational boat, and various equipment. There was no dwelling on the property.

15 You, BA, told the deceased the reason for travelling to that property was to score some drugs, although, by this stage, the two of you had agreed that, as the deceased man had not repaid the debt, you would attend at that Bindowan Drive address in order to scare, intimidate and assault the deceased in relation to the payment of the claimed outstanding debt.

16 At 12.40am the following morning you, BA, sent an SMS to you, Brendan Stanley, stating, "Little does this fuck know". A short time later, all three of you arrived at that address and entered the shed where the boats were stored.

17 At some point after that, you, BA, demanded that the deceased repay the debt owed or he would be assaulted. The deceased apparently became upset and attempted to escape by running out the door. The two of you were standing between the deceased and that door to the shed. The deceased tried to run past you towards the door but you, BA, grabbed the deceased and struggled with him. You, Brendan Stanley, assisted Mr A and the two of you grabbed the deceased to prevent him from escaping.

18 According to the prosecution opening, the deceased attempted to break free and struck out at the two of you with his arms and legs and made contact with your face, Brendan Stanley. That caused superficial injuries, including scratches.

19 You, Brendan Stanley, then placed the deceased in a headlock and placed your arm around the head and neck of the deceased and applied pressure. You, BA, while keeping hold of the deceased, punched him several times to the head and body. You then tried to put handcuffs on the deceased but were unsuccessful.

20 After a short time, the deceased went limp and the attack on him ceased. He had lost consciousness, and you both realised that. He was lying on the ground not far from the door. You both then left the shed and went outside to talk about what to do next. At that stage, you were aware that the deceased was still breathing but, 10 minutes later when you returned, his breathing was considerably laboured and he was unable to be roused. He then stopped breathing. The two of you apparently attempted to perform CPR on the deceased but were unable to revive him and, in all likelihood, he died shortly thereafter. No attempt was made by either of you to engage the assistance of ambulance or police to assist in preserving the life of the deceased.

21 There was then a discussion between the two of you as to what to do, and the most unfortunate decision was made by you to attempt to dispose of Mr Whimpey's body, in order to conceal your involvement in his death. As the discussion continued, you decided to obtain items necessary to assist you with the disposal. The plan was that the body would be disposed of at a rural property owned by you, Brendan Stanley, and your family at 200 Valley Road, Mia Mia. That property is some 85 acres with a dwelling and sheds.

22 There were further communications and, after a time, the two of you returned to the Bindowan Drive property, and collected the body of the deceased. You wrapped the body of the deceased in thick, black plastic sheeting and then drove to Mia Mia.

23 On arrival, the two of you took the deceased's body into one of the sheds on that property and stripped the body of clothing. You then placed the body in a 44-gallon barrel, along with other personal items belonging to the deceased. You attempted to burn the contents of the barrel, including the body of the deceased. Although the attempt substantially failed, considerable damage was done. An attempt was made to place the body of the deceased in a second barrel you obtained. Some effort was made by the two of you to cut off the feet of the deceased to allow you to manoeuvre the body into the barrel so that the lid could be fastened. You made a further attempt to burn the contents of that barrel.

24 After these processes were completed, the two of you, together with a man named Adam Murphy, who was residing at the Mia Mia property, left and went to a car wash in Taylors Lakes, some considerable distance away. Attempts were made to wash the car and remove any sign of the presence of the body of the deceased from it.

25 On 26 October 2016, you, BA, visited an associate and asked for hydrochloric acid or similar. You also left your phone with this associate, asking him to make some calls from it.

26 Various other things were done by you, BA, including additional cleaning of the vehicle and the removal of data from your iPhone, including various communications between you and the deceased, which pre-dated 19 August 2016.

27 On 1 December 2016, the brother of the deceased, Daniel Whimpey, reported the deceased missing to police.

28 On 15 December 2016, police spoke to you, BA, about your knowledge of the whereabouts of the deceased. You gave an account, that was essentially a lie, denying any involvement in the disappearance of Mr Whimpey. You also provided a statement to police to the same effect.

29 Sometime later, police executed a further search warrant of the Mia Mia property and found the 44-gallon drums and the various items contained therein, including the body of the deceased.

30 The post-mortem was conducted on the deceased on 25 April 2017, and there were difficulties identifying the cause of death given the condition of the body both because of the injuries by burning and the decomposition. However, there were cuts along the lower leg, including the tibia, that indicated that the deceased's feet were only connected by ligaments. The cutting had been done with a circular saw or similar.

31 On 27 April 2017, you, BA, were again interviewed by police. As the prosecution have outlined in their opening, you again told lies about the disappearance of the deceased and, of course, claimed to know nothing about his death and denied any involvement. On 28 April 2017, you were charged with the murder of Mr Whimpey.

32 You, Brendan Stanley, were interviewed by police on 2 May 2017 and provided no comment to the questions you were asked as was your right. On 3 May 2017, you too were charged with Mr Whimpey's murder.

33 Following discussion between your lawyers and the Office of Public Prosecutions, you both pleaded guilty to the lesser alternative of manslaughter on 19 November 2018, following the filing of a fresh indictment.

34 Lest there be any doubt, it is clear, and perhaps obvious, that this offence of unlawful and dangerous act manslaughter was a very serious example of such offending. There was planning that led to the deceased being taken to a more remote location where he could be physically attacked by both of you, and all in relation to a debt claimed to be owing for the use of methylamphetamine. In my opinion, the objective seriousness of the offending is high and the culpability of both of you is likewise high.

35 On your behalf, BA, your counsel submitted that your consumption of methylamphetamine may have affected your "ability to perceive and calibrate the degree of danger of death"[1]. I am bound to reject that submission given your counsel's concession that you have a history of consuming that drug. There was also no expert evidence to support the submission and the level of your "intoxication" cannot be known. To make such a finding would be little more than guesswork.

36 In addition, your counsel submitted that the drug might have had a role in the cause of Mr Whimpey's death by causing a condition, such as arrhythmia, with such a condition being undetectable on autopsy. However, that submission is complicated by what you did to the body of the deceased after his death. I could not reach any reliable conclusion about that.

37 During the course of the proceedings on 29 November 2018, I received eight Victim Impact Statements, all of which came from the family or close friends of the deceased. As I observed to counsel appearing on your behalf during the course of the plea, this family has been devastated by the death of David Whimpey. It is obvious in the way they conduct themselves and in the emotional response they all have to any detail about this case. As is always the case, your actions have inflicted on this family pain and suffering that will last them for the rest of their lives. The Victim Impact Statements were very emotional. The reading of them was very emotional.

38 It is important that I say that there is little this Court can do in the process of sentencing the two of you to alleviate that family's suffering. I have taken those Victim Impact Statements and the impact of your offending on this family and their friends into account in determining the sentences I should impose.

39 BA, your criminal history began in 2011 and does you no credit at all. It began with theft and burglary offences, and graduated to offences of assault and recklessly causing injury. Your first custodial sentence was in September 2013, when you were sentenced to a partially suspended sentence for assault, criminal damage, breach of an intervention order, and stalking. In June 2014, you were sentenced for breaching a community corrections order and recklessly causing injury. In November 2015, you were sentenced to 180 days' imprisonment for possessing a prohibited weapon, stalking, breaching bail, intentionally causing injury, threatening to kill, burglary, and theft. There are also subsequent matters that have some relevance to your prospects of rehabilitation.

40 In addition, you have been charged with sexual offences, and will be standing trial in the County Court on those matters in March 2019. I only mention that because it is relevant to the conditions under which you are presently serving the sentences you are serving. You are being held as a 'protection prisoner' without access to programs or custodial employment, and I have taken that into account.

41 Brendan Stanley, your criminal history began in 1989 with dishonesty offences. Your offending then moved to drugs, including use and cultivation, as well as possession of a firearm. As your counsel submitted, your violent offending is relatively sparse; comprising an offence of resisting police in 1990 and a conviction for unlawful assault in 2015, which I am informed concerned an attack on the camera of a parking officer.

42 Though not a prior matter, only a few weeks after being involved in the killing of Mr Whimpey, you were involved in the offences of aggravated burglary, criminal damage and recklessly causing serious injury for which you were sentenced in the County Court on 7 June 2018. The total effective sentence was three years and three months with two years to be served before becoming eligible for parole. There were 561 days of pre-sentence detention.

43 As I said, you both pleaded guilty in this Court on the 19 November 2018 following discussions between lawyers that commenced on 18 October 2018. During that period, you offered to plead guilty to the charge of manslaughter, and there were discussions about the factual basis on which such pleas would be entered. However, neither of your pleas of guilty to manslaughter could be regarded as an early plea in any sense. No doubt because you had both been charged with murder, your pleas were not entered at the earliest possible opportunity. Importantly, they followed various attempts by both of you over the history of the matter to avoid responsibility for what you had done.

44 In your case, BA, your counsel submitted that you should receive a "full discount"[2] in relation to the entry of your plea - whatever that terms means. If it means that you should receive a discount as though you pleaded guilty from the earliest possible opportunity, I simply do not see how that can be applied in this case.

45 However, I am willing to accept that you have come to accept responsibility for what you have done and feel some remorse for it. Your counsel provided me with a letter you wrote to the Whimpey family, and it is an articulate expression of remorse and regret. I can only hope it is genuine.

46 As to you, Brendan Stanley, I accept that your plea of guilty also represents an acceptance of responsibility and, to some degree, reflects remorse for what you have done.

47 In addition, your pleas of guilty in this matter have a significant utilitarian value because a trial has been avoided and the emotional distress for the family of the deceased has been shortened though not totally eliminated. Of course, the trial was avoided primarily because the prosecution did not proceed with the charge of murder. Your pleas will be recognised subsequently in these reasons for sentence and my comments pursuant to s.6AAA of the Sentencing Act.

48 BA, you were born in Australia to parents who were of Maltese background. You have one brother who is 16 years older than you. You had an extended family network and, from what I can gather, your upbringing was satisfactory. Your parents continue to support you, and reside in St Albans.

49 When you were aged 18, your father was imprisoned for a period of six years. That had a significantly negative effect on you. It still has a distressing effect on you.

50 You attended primary school in St Albans and Brunswick Secondary College, ceasing your secondary education at Year 11. You commenced an apprenticeship as an electrician and qualified as an A-grade tradesman. You worked in that trade, establishing a successful business and, in your 20s, established a business of your own in Williamstown, which ultimately failed.

51 After your father was sent to prison, you began to use drugs, including methylamphetamine. Your methylamphetamine use became substantial, and has obviously had an effect on your life from that point onwards.

52 In a report provided by a consultant psychologist Ian McKinnon, he asserts that you are suffering with a chronic adjustment disorder with active suicidal ideation. There was apparently a suicide attempt by you in 2016 that resulted in hospitalisation. He says you have valuable workplace skills, and prior trade and business experience, but that your life seems to have run into substantial difficulties. In his opinion, your long-term rehabilitation prospects are favourable, and the likelihood of you reoffending in a serious manner is significantly reduced. I am guarded about that conclusion. As your counsel frankly conceded, your prospects of rehabilitation are contingent upon your success at dealing with your issues of drug addiction.

53 Your counsel submitted that, in addition to the utilitarian value of your plea of guilty, you were remorseful for what you have done - and, to a degree, I accept that.

54 Brendan Stanley, you are 47 years of age and the only child of your parents, who separated prior to your birth. You are apparently very close to your mother, and there are other members of the family through other remarriages. You have four children who are aged between 18 and six with two different women, and your mother is involved in the care of those children since you have been in custody.

55 You grew up in Sunshine and attended primary school. Your secondary education finished at Year 10. During that time, you suffered from learning disorders. After leaving school, you commenced as a cabinet-making apprentice and your employment history was reasonably chequered. For a time between 2003 and 2009, you operated a hydroponic shop in Queensland.

56 In 2008, you had a major motorcycle accident in Queensland. The result was that you were placed in a coma for a week and a half. You suffered very serious injuries that your counsel outlined for me. You still suffer from the consequences of that accident. During your treatment, you developed an addiction to painkillers, and you have never returned to work. You acknowledge that you have an ongoing issue with drug abuse, commencing with cannabis at the age of 15, moving to painkillers subsequent to your motorbike accident and then, more recently, a significant problem with methylamphetamine and alcohol.

57 You have been diagnosed by clinical psychologist Carla Lechner as having the symptoms of stimulant and cannabis use disorder, and with having a major depressive disorder.

58 Importantly, your counsel relied on your conduct in custody as being indicative of your desire to improve your life, rehabilitate yourself, and also as a display of remorse. You have been employed as a Disability Mentor in the Marlborough Disability Unit at Port Phillip Prison since 2 March 2017. Apparently, this is a highly regarded position, and you have been congratulated by various people for your efforts in assisting other prisoners, particularly those with a disability. You have been involved in assisting prisoners with a cognitive impairment to adopt behaviours and attitudes that would support a crime-free lifestyle and provide other support to such people. Your counsel provided me with notes of a speech you made on 28 November 2018 (of last year) and which indicate your commitment to the program and a desire to make good use of your time in custody.

59 You have also undertaken various courses, including a substance use program, horticulture, psychoeducational programs, and other similar courses.

60 As I have already expressed, the offending of both of you is very serious. You engaged in a carefully pre-planned arrangement to do harm to the deceased at an isolated location so that you could not be detected. That was originally to extract from the deceased the payment of a drug debt that you, BA, were endeavouring to enforce. This enterprise was at your initiative. The enforcement was to occur by the application of considerable violence that ultimately proved to be fatal to the deceased.

61 After the attack on him had occurred, it soon became obvious that Mr Whimpey was dead or close to it. Instead of assisting him, you both left him, planned and put into effect the disposal of his body. That occurred by dismembering it to some degree and then attempting to burn it. This produced grisly consequences, as was obvious at the post-mortem examination. This was all done to conceal what had occurred. In your case, BA, you later lied to investigating police about your involvement. In the case of you, Brendan Stanley, you chose, as was your right, not to reveal your involvement to police. The circumstances and treatment by the two of you of the body of the deceased are significant aggravating circumstances.

62 General and specific deterrence are significant sentencing considerations both as to the head sentence I should impose on each of you and the non-parole period. Specific deterrence refers to deterring you from committing offences of violence in the future. Hopefully you understand the consequences of doing that would be very severe indeed. General deterrence refers to deterring others from committing similar offences by illustrating through your sentences that the consequences for doing so are substantial.

63 As an example of manslaughter by unlawful and dangerous act, this is a very serious offence with the aggravating circumstances I have described. I am prepared to accept that, although more recently displayed, you are both now remorseful for what occurred. Also, you both have some prospects for rehabilitation, though in the case of you, Brendan Stanley, your prospects seem to be significantly more positive than the prospects of you, BA.

64 I have determined that the appropriate sentence to impose on you for this offence is as follows. You, BA, will be sentenced to be imprisoned for a period of 11 years.

65 At the time this offence was committed you were on bail for other matters. By the time you were charged with murder in this matter, you were on remand for those other matters and were later sentenced. In relation to a charge of attempting to pervert the course of justice, you were sentenced in the County Court on 21 August 2018 to three years and fourteen days' imprisonment with a minimum term of two years before being eligible for parole.

66 From this there are two results. First, there is no pre-sentence detention to be declared with your sentence in this matter. Second, pursuant to s 16(3C) of the Sentencing Act 1991 (Vic), the sentence I now impose on you must be served cumulatively on any uncompleted sentence you are presently serving unless I otherwise order, which, applying the principle of totality, I propose to do.

67 I will order that your sentence of 11 years be served concurrently with the remainder of the sentence imposed on you on 21 August 2018. In relation to all of the matters for which you are currently serving sentences and for this matter, I must fix a new non-parole period. I fix a period of nine years before you are eligible to apply for release on parole.

68 So far as you, Brendan Stanley, are concerned, the sentence I impose on you is a period of 10 years' imprisonment, and I fix a period of 8 years to be served by you before you become eligible to apply for release on parole.

69 In your case, it was also submitted there was no declaration to be made by me for pre-sentence detention bearing in mind the sentence that was imposed on you on 7 June 2018 in the County Court and to which I have already referred. I am told that the head sentence in that case will not expire until 16 January 2020. In those circumstances, and to the extent that it is necessary to do so, I direct that the sentence I now impose on you be served concurrently with the remainder of the sentence imposed on you on 7 June 2018.

Section 6AAA of the Sentencing Act

70 Section 6AAA of the Sentencing Act 1991 (Vic) is, in part, in the following terms:

(1) If -

(a) in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and

(b) the sentence imposed on the offender is or includes -

(i) an order under Division 2 of Part 3; or

(ia) an order that the offender serve a term of imprisonment; or

(ib) a community correction order for a period of 2 years or more; or

(ii) a fine exceeding 10 penalty units; or

(iii) an aggregate fine exceeding 20 penalty units -

the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

71 The application of the section creates difficulties[3]. In this case, you were both charged with murder. Had you stood your trials on the charge of murder and been acquitted of that charge, but found guilty of manslaughter, then the sentence I would have imposed would have depended, to some degree, on how the trial had been conducted.

72 A trial has been avoided but that has occurred primarily because the prosecution did not proceed with the charge of murder on the basis of your offers to plead guilty to manslaughter. There was never going be a trial on the charge of manslaughter. Your pleas of guilty entitle you to have the Court consider the mitigating factors that flow from them including remorse and acceptance of responsibility to which I have already referred. I have considered those matters and accepted them for the purpose of concluding a sentence pursuant to the intuitive synthesis approach to sentencing.

[10] Taken literally, s 6AAA requires me, as a hypothetical exercise, to ignore the plea of guilty, in order to determine what sentence I would have imposed on the prisoner if he had not pleaded guilty. Self-evidently, it is intellectually highly artificial, if not impossible, to carry out that exercise. Firstly, it is difficult to imagine how the prisoner could have pleaded not guilty, having made full and detailed admissions of his guilt in his record of interview. Secondly, if the prisoner had pleaded not guilty, that would necessarily have impacted on my findings of remorse, on my findings of cooperation, and on my views as to rehabilitation.

74 The only manner in which I can apply the section is to hypothesise that there could have been a trial on the charge of manslaughter in which you both pleaded not guilty before a jury.

75 If those circumstances had occurred, I declare that in the case of you, BA, had you not pleaded guilty to the charge of manslaughter, I would have imposed a sentence on you of 13 years' imprisonment and would have fixed a minimum of 11 years to be served before you were eligible for release on parole.

76 In the case of you, Brendan Stanley, had you not pleaded guilty to the charge of manslaughter I would have sentenced you to a period of 11 years' imprisonment and would have fixed a minimum period to be served before being eligible to apply to be released on parole of nine years.

[3] See for example R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305.