The Queen v Considine & Anor [2019] VSC 386

1 Jason David Considine, on 16 November 2018, you pleaded guilty to the murder of Ashley Wayne Phillips. The maximum penalty for the offence of murder is life imprisonment.[1]

2 Natasha Krystal-Ly Hogan, also on 16 November 2018, you pleaded guilty to the charge of assist offender. The maximum penalty for this offence, where the principle offence is murder, is 20 years' imprisonment.[2]

3 At the time of his death, Mr Phillips was 45 years old. He was working as a storeman and living at his mother's house in Broadmeadows in a converted garage.

4 At the time of the offending, Mr Considine was 34 years old, Ms Hogan was 25, and you had been in a relationship with each other for approximately nine years. Ms Hogan became pregnant with your first child while completing Year 11, and gave birth in 2010. Your relationship has been interrupted on several occasions, when Mr Considine served periods of imprisonment. During these periods, Ms Hogan formed relationships with other men and, in 2012, had another child. I am told Mr Considine has treated this child as his own, despite not being the biological father.

5 Your relationship has involved homelessness, drug use and domestic violence. Nevertheless, you remain supportive of each other, and are currently permitted weekly phone calls.

6 In September 2015, while Mr Considine was serving a term of imprisonment, Ms Hogan and Mr Phillips met on Facebook. They commenced an intimate relationship soon after. This ended in April 2016, when Mr Considine was released from prison and returned to live with Ms Hogan. Mr Considine later became aware of the relationship when he looked through Ms Hogan's phone.

7 In about March 2017, Ms Hogan and Mr Phillips resumed social media communication.

8 Soon after, Mr Considine and Ms Hogan started to discuss the possibility of having a threesome together with another male. It was discussed on the basis that, if Ms Hogan were to engage in sexual activity with another man, this arrangement would ensure Ms Hogan would not be cheating or going behind Mr Considine's back. It was decided that Ms Hogan would approach Mr Phillips with a proposal to join you both. On discussing the idea with him, Mr Phillips expressed concern as to Mr Considine's attitude towards it, but ultimately agreed to participate.

9 On 25 May 2017, Mr Phillips drove to your unit in Walton Avenue, Preston and parked in the street. At 10.24pm, he sent a text message to Ms Hogan stating he had arrived and entered the unit shortly after. Over the next couple of hours, the three of you engaged in sexual activity, during which Ms Hogan and Mr Phillips exchanged further explicit text messages. Some of these events were filmed on Ms Hogan's iPhone, and the final video depicts her and Mr Phillips in the lounge room at 1.44am on 26 May 2017.

10 Shortly after, Mr Considine became jealous of sexual activity occurring between Ms Hogan and Mr Phillips. He attacked Mr Phillips in the lounge room, causing a laceration to his head. Mr Considine then strangled Mr Phillips on the lounge room floor until he stopped breathing. These events found the charge of murder against Mr Considine.

11 Once Mr Considine realised Mr Phillips was dead, he went outside and collected a recycling bin from another flat and wheeled it inside. Ms Hogan assisted to manoeuvre Mr Phillips' body into the bin head first. Mr Considine threw some clothes on top and wheeled the bin a few streets away, leaving it in Butler Street, Preston. Meanwhile, Ms Hogan cleaned Mr Phillips' blood on the floor. Mr Considine returned to the flat and you both went to bed.

12 It is the acts of assisting Mr Considine to lift Mr Phillips' body into the bin, cleaning the floor, and subsequent lies to police about Mr Considine not being involved in the death of Mr Phillips, that amount to the charge of assist offender against Ms Hogan.

13 At approximately 8.00am on 26 May 2017, a nearby resident observed a garbage bin on his nature strip. He lifted the lid and saw some loose clothing and black plastic garbage bags on top, and contacted the Darebin Council to arrange collection.

14 On the morning of 27 May 2017, as a waste disposal truck emptied the bin, the driver observed what appeared to be a human body being tipped into the truck. He pressed the emergency stop button and exited the truck, observing blood in the bin. He telephoned the police, who attended the scene.

15 That same morning, Belinda Considine, Mr Considine's sister, visited your unit to collect money for rent. Mr Considine stated, 'I've done something really bad. I want to talk to someone about it', but Ms Considine responded that she just wanted her money and left.

16 After arriving at the scene on 27 May 2017, police were unable to immediately identify the deceased body. They released images of a distinctive T-shirt worn by the victim to the media. This resulted in Mr Phillips' mother contacting police on 29 May 2017 and his body was formally identified soon after.

17 Police identified the mobile number used by Mr Phillips at the time of his death and found that, on 25 May 2017, it was in regular contact with a number registered to Ms Hogan.

18 The recycling bin used to dispose of Mr Phillips' body was numbered, connecting it to a unit nearby to the one you both occupied in Walton Avenue, Preston. This led police to identify Mr Phillips' car, which was still parked close to your unit.

19 On 30 May 2017, the police executed a search warrant at your unit. Enquiries had revealed that you were both residing there, and that it was leased to Belinda Considine, the sister of Mr Considine. In the unit, police observed blood on the lounge room carpet. A swab was taken, and DNA analysis provided extremely strong support for the proposition that the blood originated from Mr Phillips.

20 On 30 May 2017, you were both arrested and interviewed regarding Mr Phillips' death.

21 Mr Considine, you told police that you and Ms Hogan had engaged in a threesome with Mr Phillips the previous week. You stated that Ms Hogan had cheated on you with Mr Phillips in the past, but you consented to the planned activity, as it meant she was not going behind your back.

22 You said that after Mr Phillips arrived at the unit, you used cannabis, and the three of you engaged in sexual activity. You reported you then started to feel unwell, so you apologised and said that you needed to lie down. You told police that Ms Hogan showed Mr Phillips to the door and you went to sleep.

23 You denied any altercation with Mr Phillips, stating there was no reason for his blood to have been found in the unit. You stated that he left of his own accord, and that you were unable to explain his body being located nearby in a bin. This account was clearly untrue.

24 Ms Hogan, you participated in two formal police interviews. During your first interview on 30 May 2017, you denied any contact with Mr Phillips since August 2016, and specifically denied contact during the week he was murdered. After being shown Mr Phillips' phone records from 25 May 2017, evidencing frequent contact with your phone, you admitted you had initiated contact approximately two months prior.

25 You stated that you arranged the threesome, and while Mr Considine was initially wary, he had become excited. You said that after Mr Phillips arrived, you all watched a movie, smoked cannabis, and engaged in sexual activity. You reported that afterwards, Mr Phillips shook Mr Considine's hand and gave you a kiss, and you walked him to the door.

26 When informed that Mr Phillips' car was parked close to your unit and his body had been found nearby, you said neither of you hurt Mr Phillips and you did not know who did. You were released pending further investigation. It is clear this account of how Mr Phillips left your unit is entirely false.

27 In a second interview on 2 June 2017, you told police that after you engaged in sexual activity in the early hours of 26 May 2017, Mr Considine hit Mr Phillips over the head and strangled him. You said this occurred while you were in the bathroom, and you returned to see Mr Considine crouching on top of Mr Phillips, strangling him. You stated Mr Phillips was gasping for air as Mr Considine released and tightened his grip about three to four times before he died.

28 You admitted to helping Mr Considine lift the bin when the body was in it, and cleaning some of the blood on the floor while he wheeled the bin outside. You participated in a re-enactment at the premises, demonstrating how Mr Considine killed Mr Phillips and how you assisted afterwards by holding the bin while he put the body in. You also signed a statement outlining your actions.

29 On 27 May 2017, forensic pathologist Dr Paul Bedford conducted a post-mortem examination. He observed a laceration to Mr Phillips' scalp with underlying bruising, consistent with blunt force trauma. There was some bruising on his brain, but no skull fracture. During pre-trial evidence in October 2018, neuropathologist Dr Linda Iles gave evidence that it was highly unlikely that the injuries to Mr Phillips' brain caused his death.

30 Dr Bedford also observed an abrasion across the front of his neck, associated with bleeding into the underlying muscles. He stated he could not rule out the possibility that some of Mr Phillips' injuries were caused when the waste disposal truck moved his body from the bin. Toxicology analysis of Mr Phillips' blood detected the presence of methylamphetamine, cannabis, alcohol and Viagra.

31 Dr Bedford opined that the blunt force trauma to Mr Phillips' head, as well as his intake of alcohol and drugs, may have led to a decreased conscious state. Ultimately, Dr Bedford reported the cause of death as 'unascertained'. He presented two possibilities: first, that Mr Phillips was deceased before being placed in the bin; and second, that he was unconscious but still alive at this time, and subsequently died due to his position in the bin restricting his breathing. During the committal hearing, he gave evidence that it was more likely that Mr Phillips' death was caused prior to being placed in the bin.

32 I note that the prosecution opening put the cause of Mr Phillips' death as strangulation inflicted by Mr Considine. The submissions of all parties during the plea proceeded on that basis.

33 On 8 June 2017, you were both charged with the murder of Mr Phillips. On 22 September 2017, approximately one month after the committal mention, Ms Hogan made an offer to plead guilty to the charge of assist offender and give evidence against Mr Considine. The prosecution rejected this offer.

34 On 27 March 2018, you were both committed to stand trial following a contested committal hearing. On 4 April 2018, Mr Considine made an offer to plead guilty to manslaughter, but this was rejected by the prosecution. On 12 November 2018, you both pleaded not guilty to the charge of murder in this Court and preliminary argument began.

35 Three days later, Ms Hogan again offered to plead guilty to the charge of assist offender. This was accepted by the prosecution and on 16 November 2019, you pleaded guilty to that charge.

36 On the same day, Mr Considine, you pleaded guilty to the murder of Mr Phillips. This plea was accepted by the prosecution on the basis that when you choked Mr Phillips, you intended to render him unconscious and to cause really serious injury, but that you did not intend to kill him.

37 I received five Victim Impact Statements, all of which I have carefully read and considered. These statements and accompanying photographs, express the profound impact of your offending. Both of your actions have caused immense suffering to Mr Phillips' family and friends, the effects of which will be felt for a long time.

38 Ms Phillips, the mother of Mr Phillips, described how she misses her only child and feels a little lost without him. She described how events such as Christmas, birthdays and family occasions have changed without him.

39 Mr Bray, a cousin of Mr Phillips, stated Mr Phillips was a brother to him. He described sharing life milestones and how his death has left a hole in his family than can never been filled. Mr Bray stated he feels physically drained and struggles to concentrate at work, and has been forced to reduce his hours of employment. He explained losing passion for former activities, and worrying about his sons if they are out at night. Mr Bray stated the memory of identifying Mr Phillips' body will remain with him for the rest of his life.

40 Ms Dixon, the partner of Mr Bray, described her sadness at remembering the last time she saw Mr Phillips and how happy he was. She explained the toll this has taken on her health, and how she lacks energy to work or leave the house. Ms Dixon explained that while Mr Phillips had his issues, he always saw the good in people and had a kind heart.

41 Ms Tossell, another cousin of Mr Phillips, described her treasured memories of him. She wrote of her shock and how she felt sick upon discovering that the victim she had heard about on the news was Mr Phillips. Ms Tossell described how birthdays are especially sad occasions now, as she continues to be reminded of Mr Phillips' death.

42 Mr Virgona signed a statement on behalf of the staff at MAS Imports, Mr Phillips' former workplace. The statement explained that Mr Phillips had worked there on and off for the last ten years. Mr Phillips' former colleagues were shocked and devastated to learn of his death. They stated that he cannot ever be replaced and is greatly missed.

43 Jason Considine, you were born on 4 June 1982 and are 36 years old. You are one of fifteen children, including full and half siblings, and grew up in Reservoir, Victoria. During your childhood, you experienced physical violence, perpetrated by your father against your mother and you. This reportedly continued until you were 15 years old and began to fight back. When you were aged 18, you left the family home due to your behaviour and drug and alcohol abuse. You have experienced unstable housing situations since then, including long periods of homelessness.

44 During school, you reportedly struggled with attention to detail, and were bullied and socially isolated until you left in Year 9. You then worked as a factory hand, and undertook traineeships in mechanics and a spray painting apprenticeship. You did not complete these studies and were receiving a disability support payment prior to being incarcerated.

45 You began consuming alcohol at 14 years old, which escalated between the ages of 18 and 23, but over later years you rarely drank. You also commenced using drugs at age 14, including daily cannabis use that continued until your incarceration. You report having been addicted to heroin since age 19, though note periods of abstinence when you were on opioid substitution programs. You were abusing OxyContin and methamphetamine up until your incarceration, and are currently prescribed methadone.

46 I received a psychiatric report dated 3 March 2019 and a supplementary report dated 7 March 2019, authored by consultant forensic psychiatrist, Associate Professor Andrew Carroll.

47 Associate Professor Carroll diagnoses you with Borderline Personality Disorder, primarily due to your significant childhood trauma. He opines that you have most likely experienced this condition since adolescence, and it may be permanent. He also concludes that you have been diagnosable with a severe mixed substance use disorder, with dependence on methamphetamine, cannabis and heroin, since your teenage years. He reports this is treatable and you are currently in remission.

48 Associate Professor Carroll further opines there is a significant likelihood that you have a neurocognitive disorder, also known as an Acquired Brain Injury (ABI). He strongly recommended you undergo formal neuropsychological testing to clarify this.

49 He concludes it is likely you were experiencing severely impaired impulse control at the time of offending due to your intoxication with multiple substances, in conjunction with your Borderline Personality Disorder and probable ABI. He states you would have been very vulnerable to enacting rage in the form of interpersonal violence. Dr Carroll opines there is a link between your emotionally neglectful and abusive upbringing, and your long history of substance abuse and consequent offending.

50 I also received a report of clinical neuropsychologist, Jane Lofthouse, dated 8 March 2019. Ms Lofthouse notes that you demonstrate mild to moderate intellectual impairment, and your IQ score of 77 is significantly below average, within the borderline range. She opines that your intellectual deficits may be the result of limited education, a likely verbal learning disorder, and impairment related to an ABI. Ms Lofthouse notes that you reported several incidents that may have resulted in a traumatic brain injury, but there are no medical reports in respect to these events. She observes that your chronic drug and alcohol use should also be considered as a factor that may have contributed to an ABI.

51 Ms Lofthouse also reports that you identified with symptoms consistent with a moderate level of depression, severe level of anxiety and mild level of stress. She concludes that your intellectual impairment and psychological issues, compounded by your drug use, were all contributing factors to your offending.

52 Your counsel acknowledged that you have an extensive criminal history, however, noted very few of your convictions involved violence. Your criminal history predominantly includes property, driving and drug related offences.

53 Natasha Hogan, you were born on 30 November 1991 and are now 27 years old. Your parents separated when you were three years old, and you grew up in Thomastown with your mother. You report a happy childhood, including a good relationship with your stepfather, who separated from your mother two years ago. You report sadness as to the lack of relationship you have with your father, and do not have a close relationship with your stepmother. You have one older half-brother.

54 You reportedly experienced sexual abuse as a child, perpetrated by a relative. You have not sought counselling for this, nor discussed it with your family.

55 Your first relationship was with Mr Considine. You report that when you fell pregnant after completing Year 11, you did not continue your education as he told you not to. This relationship has been tumultuous and volatile. You have been the victim of domestic violence and report being worried for your safety.

56 You commenced drug use when you were 17 years old, the same time your relationship with Mr Considine began. You started smoking cannabis and, at age 18, began using amphetamine and heroin weekly. This gradually increased to daily use. You stopped using drugs when you were pregnant, but resumed in the months after giving birth. You report not having used illicit substances since being incarcerated, which is supported by the negative results of nine urine screens. It was submitted on your behalf that you now have a solid platform to continue your life drug free.

57 You have a minor criminal history, involving theft and drug possession offences. Your counsel notes that you received financial penalties, two with and one without conviction, reflecting that those offences fell towards the lower range of seriousness. You have no prior convictions for any violent offences.

58 I will discuss sentencing factors as they relate to each of you separately.

59 Your counsel concedes your offending is serious, but submits it should be assessed in light of the following:

(a) it is accepted that you did not have an intention to kill Mr Phillips, but rather, intended to cause a really serious injury;

(b) the offence was not premeditated and you had no prior animosity towards Mr Phillips;

(c) the sexual activity that occurred prior to the offence was consented to by all parties;

(d) the assault that caused the laceration and the strangulation were spontaneous reactions to a feeling of jealousy as a result of perceived activity between Ms Hogan and Mr Phillips; and

(e) the act of strangulation said to have caused Mr Phillips' death was relatively brief and involved the use of moderate force.

60 Your counsel noted the case of R v McCullagh,[3] in which the offender caused the victim's death by manual strangulation exercising moderate force, for a period of approximately 15-30 seconds. In that case, Gillard J held that the accused fell to be sentenced on the basis he intended to cause really serious injury, and that 'this is relevant to the seriousness of the offence'.[4]

61 The prosecution concedes your offending was not premeditated, and cannot be put in the upper end of seriousness for the offence of murder. However, it submits this was a particularly senseless killing, aggravated by your treatment of Mr Phillips' body afterwards. It is argued Mr Phillips was unsuspecting and so somewhat vulnerable.

62 The prosecution submits the evidence as to the duration of your act of strangulation is inconclusive. While there is some evidence suggesting you inflicted a blow to his head, the prosecution are unable to identify how you caused the laceration.

63 Although the evidence remains inconclusive, I accept your assault upon Mr Phillips was relatively brief. Further, there is no evidence that you planned his death. Instead, it appears you perpetrated a spontaneous burst of extreme violence, due to jealousy over Ms Hogan. This was a grossly inappropriate overreaction to those feelings.

64 As was conceded on your behalf, your actions after you killed Mr Phillips aggravate the seriousness of your conduct. You did not seek any medical assistance or make attempts to help him. Instead, you deliberately found a bin and disposed of his body in a manner that suggests you intended he be taken as part of rubbish collection and never be found. Moreover, in an attempt to avoid being brought to justice, you then lied to police and provided a false account of Mr Phillips leaving your unit.

65 The taking of a human life is self-evidently a very serious matter. In killing Mr Phillips, you acted in jealous rage and lost control. Having regard to all the relevant circumstances I have discussed, your offending should be regarded within the mid-range for the offence of murder.

66 The prosecution accept you did not intend to kill Mr Phillips, but rather, intended to cause really serious injury. Your counsel submits this is of significance when assessing your culpability.

67 It is submitted the facts of your case are distinguishable from those considered in Walters v The Queen ('Walters'),[5] in which the Court of Appeal held the offender's culpability was not lessened by his intention to cause really serious injury not death. Your counsel notes that the offender in Walters inflicted a prolonged assault upon a victim with whom he had previous animosity. It is submitted that your actions were spontaneous and of relatively brief duration, and these factors distinguish your case from Walters and reduce your culpability. I accept this submission.

68 Additionally, your counsel submits your psychological state reduces your moral culpability to some extent, though not to such a degree that the relevant Verdins principles are enlivened. Your counsel cited DPP v O'Neill ('O'Neill'),[6] in which the Court held a complex personality disorder is capable of having a limited impact on moral culpability, if it goes some way to explaining the offending conduct. Relying on the reports of Associate Professor Carroll and Ms Lofthouse, it is submitted that your complex personality makeup, involving an ABI and Borderline Personality Disorder, goes some way to explaining your offending.

69 The prosecution refers to your act of placing your hands forcefully around Mr Phillip's throat as an inherently dangerous action, thus making you highly culpable.

70 The prosecution did accept that your Borderline Personality Disorder and low intellectual functioning provide relevant contextual background to your offending. However, it was submitted that any assessment of the degree to which these matters contributed to your offending is uncertain, as the experts did not apportion the level of contribution of these factors.

71 I accept the opinion of Associate Professor Carroll that at the time of your offending you were likely to have been experiencing severely impaired impulse control due to your intoxication with multiple substances, in conjunction with your Borderline Personality Disorder and ABI. I further accept that you would have been very vulnerable to enacting rage in the form of interpersonal violence. I also accept that you have a mild to moderate intellectual impairment, within the borderline range. I note the opinion of Ms Lofthouse that there were a number of other features of your personality and some impairments that were contributory factors in your offending. Your offending involved a spontaneous episode of violent rage brought about by feelings of jealousy. Taking all these factors into account I accept that they are of importance in making an informed assessment of your moral culpability. In my opinion they tend to lessen your moral culpability, albeit to a limited extent.

72 While your counsel accepts that your plea of guilty was relatively late, it is submitted that you should be afforded appropriate mitigation. Relying upon the authorities of Cameron v The Queen,[7] and Phillips v R,[8] your counsel submits:

(a) you should be given a significant discount due to the utilitarian benefit of your plea - in this case, a contested trial would likely have been complex, with the possibility of separate trials, and preliminary argument had not yet occurred;

(b) the plea reflects a willingness to facilitate the course of justice; and

(c) the plea is also a reflection of remorse.

73 It is further noted that after the committal, you offered to plead guilty to the offence of manslaughter. While you have now pleaded guilty to murder, I accept this shows a willingness to accept responsibility for Mr Phillips' death at any earlier stage. It is also an important feature of your plea that you have spared Mr Phillips' family and friends from the ordeal of facing a contested trial.

74 Your counsel submits you have demonstrated remorse in your plea of guilty and your statement to your sister on the morning after your offending that, 'I've done something real bad. I want to talk to someone about it'. I note Associate Professor Carroll also observes that you appeared 'appropriately distressed by [your] offence and indicated bewilderment as to why it had occurred'.

75 The prosecution submits that, if it is accepted you are remorseful, it has been demonstrated a long time after your actions. The prosecution argues that your disposal of Mr Phillips' body demonstrates you initially had no remorse for what you did.

76 I accept you are now sorry for having killed Mr Phillips, although this has taken some time to fully evolve. Up until you lost control, you appear to have not borne him animosity. You barely knew him and you have expressed bewilderment about why you killed him.

77 Your counsel notes you are currently a protection prisoner due to a classification from a past period of incarceration in 2007 when you were assaulted in custody. This classification is not due to the nature of your offending or any other relevant reason.

78 Your counsel urged me to consider your situation in custody when sentencing you. It was submitted you will likely remain in protection due partly to your psychological state, including your significant anxiety regarding safety. This setting involves greater restrictions on movement within the prison, as well as reduced access to programs and work. I was referred to comments of the Court of Appeal in R v Rostom,[9] as to the way in which protection is served in the Victorian prison system. I take these comments into account in sentencing you.

79 Following the hearing of this plea, I received an affidavit of Jennifer Hosking, Acting Assisting Commissioner of the Sentence Management Division of Corrections Victoria, sworn on 15 April 2019. This outlines your history of incarceration for this offence. Ms Hosking reports that after being told of your transfer to Port Phillip Prison on 26 June 2017, you threatened self-harm and, on the day of your transfer, made several light cuts to your forearm. I note this affidavit does not provide any evidence as to your likely future conditions in custody, or whether you will remain in protection for the duration or a significant part of your sentence. No party sought to make further submissions on this issue following the production of this affidavit. I am unable to be certain about the extent to which you may remain in protective custody. Nevertheless, I have taken into account the possibility that a significant part of your sentence may be served in circumstances of protection.

80 It was further submitted on your behalf that the fifth of the principles articulated in R v Verdins ('Verdins')[10] applies to you, that is, that your impaired mental functioning will mean your experience of imprisonment will be more burdensome than that of someone without such conditions. Your counsel submits that even if I am not satisfied that this Verdins principle applies, it remains a mitigatory factor that prison will be more onerous for you.

81 The prosecution concedes prison may be more burdensome for you to some extent, due to your hyper-vigilance and psychological makeup. However, it is noted that Associate Professor Carroll opined you do not report any great problems in coping with other prisoners or officers in the protection unit. It is submitted that any weight given to this factor in mitigation, should reflect that you appear not to have experienced significant issues in custody so far.

82 Whilst in custody, you have been monitored by a psychiatric team that observed your medication, mood, and thoughts of self-harm. You are currently prescribed anti-depressant and anti-psychotic medication, and have few visitors.

83 In the circumstances I accept that due to your mental health issues and low intellectual functioning, your sentence of imprisonment will likely be more burdensome for you. I will take this into account to a limited degree in moderating the sentence I will impose.

84 Your counsel submits that the following factors should be considered when assessing the nature and gravity of your offending:

(a) the context and nature of your turbulent relationship with Mr Considine;

(b) that you possessed no animosity towards Mr Phillips, rather there was evidence of mutual sexual desire leading up to his death;

(c) the limited time and nature of your offending conduct, which included your act of cleaning the carpet, as compared to cases where persons have used chemicals and laboured extensively; and

(d) the relatively short amount of time between your offending and your later admissions and assistance to police, being three days.

85 In all the circumstances, I assess the nature and gravity of your offending as being in the mid-range of seriousness for this kind of offending.

86 It was submitted your role in this offending cannot be divorced from the nature of your relationship with Mr Considine, which your counsel stated was 'marred by domestic violence, control and drug use'. Attention was also drawn to the evidence given in pre-trial proceedings and the filed tendency notice, which describe past episodes of choking and other violent acts by Mr Considine. It is submitted this provides vital context as to why you assisted Mr Considine, and why you told police that neither of you were involved in Mr Phillips' death during your first interview. Your counsel submits these circumstances reduce your degree of culpability.

87 In contrast, the prosecution submits your moral culpability is fairly high, pointing to your presence during the murder of Mr Phillips and your assistance in helping remove his body. It is submitted that the method of disposing of Mr Phillips' body was such that, if successful, it would have kept the truth of his death hidden from his family forever and prevented his body being recovered. It can be reasonably inferred you would be aware of this when assisting to place his body in the bin.

88 However, it is conceded that your act of cleaning the carpet was not so grave, nor was it particularly successful or prolonged, though it is submitted it appears to have been of your own volition.

89 The prosecution also acknowledges your experiences of domestic violence, and that your offending occurred in the context of a complex relationship with an imbalance of power. However, it is submitted that you did not, in your record of interview, suggest that your offending was due to any threats of Mr Considine.

90 I do consider it likely that you committed your offending due to a sense of misplaced loyalty to Mr Considine, and that your offending was committed when you were shocked and scared at having witnessed Mr Phillips being killed. I also consider that your experience of domestic violence is a matter that goes some way in establishing your state of mind and mitigating the circumstances of your offending.

91 Your counsel submits that you offered to plead guilty to this charge at the earliest stage in proceedings, on 22 September 2017, approximately one month after the committal mention. Your counsel thus submits you should be given the full benefit of a plea of guilty at the earliest stage, due its utilitarian benefits, including the effect of sparing witnesses the impact of being cross-examined before a jury.[11]

92 It is further noted that your early plea offer was accompanied by an offer to give evidence against Mr Considine. It is submitted this shows your willingness to advance the course of justice, and should be considered a significant factor in mitigation. You also participated in a re-enactment of events shortly after your decision to assist the police, in keeping with a willingness to advance the course of justice.

93 The prosecution accepts that your offer is capable of demonstrating remorse and shows you were willing to facilitate justice, and concedes that you should be afforded some mitigatory benefit in this regard.

94 I accept that you made a decision to cooperate with the investigating police and then offered to plead guilty at an early stage, to the offence which was ultimately charged. As a result of the prosecuting rejecting this initial offer, you have spent a considerable period in custody awaiting the resolution of your case, to eventually proceed on an offer the same as which you had made at a much earlier point.

95 It is submitted that you have demonstrated genuine remorse for your offending by making full admissions in your second interview, participating in a re-enactment and providing a written statement. These actions are said to be of particular significance as they required you to implicate the father of your children. It is put on your behalf that you needed to unburden yourself. Your counsel submits you have reported experiencing distressing memories of Mr Phillips' murder and feelings of blame, which is further evidence as to your remorse.

96 I accept you are genuinely sorry for the death of Mr Phillips and are remorseful for the part you played. I accept you felt no ill-will towards him.

97 Your counsel notes that this is your first experience in custody and while you have daily phone contact with your parents, you have been unable to contact your children due to the involvement of the Department of Health and Human Services. It is submitted that this situation has increased your feelings of anxiety and guilt.

98 Moreover, it is submitted that you have used your time in custody productively, engaging in regular work and various programs. I was provided with supporting documentation that shows you have attended weekly counselling and completed various educational courses.

99 Ultimately, your counsel submits that the time you have spent in custody, which was 659 days at the time of the plea, is sufficient. This is rejected by the prosecution, who submit that this would be an insufficient non-parole period.

General deterrence, denunciation and just punishment

100 Mr Considine, your counsel acknowledges that the sentencing purposes of general deterrence, denunciation and just punishment, are all central factors to be taken into account in the assessment of your sentence. This is an entirely appropriate approach.

101 Your conduct in killing Mr Phillips was completely unacceptable and unjustified. You and Ms Hogan had invited him to your unit, and he did not expect to be harmed. You killed him for no obvious purpose other than that you lost control in a state of jealousy. Your acts were a senseless and violent over-reaction to the circumstances, and should be strongly denounced. You killed Mr Phillips by strangling him at very close range, which would have been a very distressing way to die.

102 Your counsel concedes the sentencing purposes of community protection and specific deterrence are important considerations in your sentence. You have prior convictions of some significance, have ongoing issues with the abuse of drugs, and suffer a number of disorders which will require future management. These factors lead to a conclusion that the sentence imposed on you must reflect the need to deter you from committing future offences, and place some weight on protection of the community.

103 However, I note your prior convictions do not involve a significant history of violence. Although there was some acceptance between parties that your relationship with Ms Hogan involved violence, there is insufficient evidence before me on the plea to draw any adverse conclusions from these assertions in the task of sentencing you. Further, the current matter involved a highly unusual set of circumstances. Accordingly, I do not conclude the sentence to be passed upon you should contain an inordinately significant component directed towards specific deterrence or protection of the community.

104 Your counsel acknowledged that your extensive criminal history suggests your prospects for rehabilitation are somewhat guarded. It was submitted that due to your substance use, low intellectual functioning, psychological makeup and cognitive impairments, you will require significant support when you are eventually released into the community. Associate Professor Carroll states in his supplementary report that 'a period of prolonged support and supervision post-release may go some way to assisting [you] and reducing the risk of relapse into substance use and itineracy'. Your counsel submits this is a sensible view, and that a somewhat longer period of parole, with a shorter non-parole period, is therefore appropriate to assist you to reintegrate into the community. I agree with this submission.

105 I conclude your prospects of rehabilitation remain unclear, and will depend greatly on your response to psychological treatment and ability to remain drug free.

106 I have had regard to current sentencing practices for the offence of murder to which you have pleaded guilty.[12]

General deterrence, denunciation and just punishment

107 Ms Hogan, you were involved in an attempt to cover up a most serious offence, which resulted in Mr Phillips' death. Your conduct was intended to enable Mr Considine to avoid detection and escape punishment. Conduct of this kind undermines and frustrates the proper administration of justice. It also has the potential to endanger the community by allowing violent offenders to remain at large.[13] It must be discouraged and denounced in strong terms.

108 Given your circumstances, background and prospects of rehabilitation, I do not consider that the sentence to be imposed on you requires particular emphasis to be placed on specific deterrence or protection of the community. You have a criminal history that is appropriately described as minor, and has not involved violence.

109 Your counsel submits that you were 25 years old at the time of offending, and you should be sentenced as a youthful offender. Your counsel relies on the principles expressed in Azzopardi v R, namely that:

(a) young offenders may not fully appreciate the seriousness and consequences of their conduct;

(b) there is generally a greater potential for rehabilitation of young people, which is in the community's interest; and

(c) the effect of an adult prison on a young person, particularly in relation to exposure to corrupting influences, may undermine and impair rehabilitation.[14]

110 It is submitted that the principle of rehabilitation should be given significant weight in your case, due not only to your age, but also to the facts that you have two young children, your criminal history is limited, you are remorseful, and you gave assistance to police. It was noted your children are currently cared for by others, but you wish to re-connect with them.

111 I also note you have spent a little over two years on remand awaiting the outcome of this case. You have spent this time wisely, completing a number of courses that will hopefully provide you with some skills to fulfil your ambition to work within the construction industry. I also note the positive character reference from your mother.

112 I am particularly mindful that you offered to plead guilty to assisting an offender at a very early stage of these proceedings, and this offer was not accepted by the prosecution at that time.

113 In all the circumstances, I accept that your prospects of rehabilitation are good.

114 I was referred to and have taken into account current practices in sentencing cases involving assisting an offender.[15]

115 Jason Considine, taking all matters into account, the sentence I will impose upon you, is a period of imprisonment for 21 years. The period you will serve before becoming eligible for parole will be 16 years.

116 I have imposed a less severe sentence upon you than I otherwise would have imposed, because you have pleaded guilty. I declare that but for your plea of guilty to the charge of murder, I would have sentenced you to 25 years' imprisonment with a non-parole period of 21 years.

117 I declare you have served 488 days of pre-sentence detention, not including this day.

118 The sentence I will impose upon you, Natasha Hogan, is a period of imprisonment for one year and ten months.

119 I have imposed a less severe sentence upon you than I otherwise would have imposed, because you have pleaded guilty. I declare that but for your plea of guilty to the charge of assist offender, I would have sentenced you to two years and six months' imprisonment with a non-parole period of two years.

120 I declare you have served 722 days of pre-sentence detention, not including this day. As I declare this period will count as time already served, my intention is that you should now be released from custody.

[1] Crimes Act 1958 (Vic) s 3(1)(a).

[2] Ibid s 325(4)(a).

[3] [2003] VSC 3; (2003) 141 A Crim R 150.

[5] [2013] VSCA 164.

[6] [2015] VSCA 325; (2015) 47 VR 395, 421 [100].

[8] [2012] VSCA 140; (2012) 37 VR 594.

[9] [1996] VicRp 60; [1996] 2 VR 97, 102.

[10] [2007] VSCA 102; (2007) 16 VR 269.

[11] Phillips v R [2012] VSCA 140; (2012) 37 VR 594, 619.

[12] See eg. DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395; DPP v Azizi [2013] VSC 16; R v Wilson [2011] VSC 123; Diver v R [2010] VSCA 254; and Dutton v R [2010] VSC 107.

[13] Landmark v R [2015] VSCA 178 [61]-[62].

[14] [2011] VSCA 372; (2011) 35 VR 43, 53 [34]-[36].

[15] See eg. DPP v Marmo [2018] VSC 31; DPP v DJ [2017] VSC 64; R v Girgis [2016] VSC 43; Landmark v R [2015] VSCA 178; DPP v Vega [2015] VSC 683; R v Robertson [2013] VSC 625; R v Portelli [2014] VSC 660; R v Kane [2011] VSC 19; R v Connally [2009] VSC 452; and DPP v Richardson [2007] VSC 221.