The Queen v Mitchell [2015] VSC 24

Supreme Court of Victoria|2015-02-09|Before: Croucher J

CRIMINAL LAW - Sentence - Manslaughter - Deceased suffocated with plastic bag bound over his head with hands taped behind his back - Body burnt to ashes - Objectively very serious example of manslaughter - Offence mitigated by fact that offender acted under "duress" from another - Admissions - Plea of guilty - Profound remorse - Imprisonment particularly burdensome for accused - Limited prior convictions for violence - Good prospects of rehabilitation - Importance of general deterrence, just punishment and denunciation - Ten years' imprisonment with a non-parole period of seven years - But for plea of guilty, 13 years' imprisonment with a non-parole period of ten years.

2 Initially, Mr Mitchell had been charged with, and committed for trial on, murder. His trial was listed for hearing after Easter this year. However, after a plea offer made by Mr Mitchell on 17 November 2014, the Director filed a new indictment charging manslaughter, to which a plea of guilty was entered immediately.

3 On 27 January 2015, Mr Mitchell affirmed that plea of guilty and admitted prior convictions. The matter was opened and I heard a plea in mitigation. Shortly, I will impose sentence.

4 The circumstances surrounding the offence were spelt out in some detail in a written Summary of Prosecution Opening (Exhibit 1), which Mr Rochford QC, who appeared with Mr Hutton for the Director, tendered and also read to the Court. Mr McQuillan, who appeared for the accused, did not dispute any of the facts alleged in that document. A shorter summary, supplemented by some additional matters raised by counsel, follows.

5 Nhan Ngoc Doan was also known as Kevin Doan. He was aged 37 at the time of his death. He is survived by two young children, a former wife (and mother of his children), another former partner and his mother. Mr Doan had come to Australia from Vietnam as a child. After leaving university without completing a degree, Mr Doan worked in various occupations, including as a manager at a retail store and in his own business at a photography studio. In recent times, he had fallen into heavy use of illicit drugs, particularly methamphetamine or "ice".

6 In January 2013, Mr Doan was living with Todi Muja in an apartment in St Albans. Both men knew Harvey Spence. All three knew each other through the world of illicit drugs.

7 Peter Mitchell was aged 36 at the time of his offence and is now 38. Mr Mitchell knew Mr Spence, also through illicit drug use, but he did not know Mr Doan or Mr Muja before the day of the offence.

8 In October 2012, Mr Spence and Mr Doan argued over drugs. The argument escalated to the point where Mr Spence hit Mr Doan to the face, knocking him off balance and causing his eyebrow to bleed. Mr Doan did not retaliate. Mr Spence accused Mr Doan of stealing from him, and asserted that he had failed to cook "ice" for him as promised.

9 On 30 December 2012, Mr Spence was arrested while driving another's car. Inside the car, police found an "ice" pipe and a small amount of powder believed to be methamphetamines. It appears that Mr Spence then came to believe that Mr Doan or another had informed on him to police about his illicit drug activities.

10 And so it was that, on 6 January 2013, Mr Spence persuaded Mr Muja, Mr Doan and Mr Mitchell to go for what was said to be a drive in the country (from Melbourne). Mr Spence was driving a Holden Calais which belonged to WR, another associate of his in the drug world. Mr Muja sat in the front passenger seat; and Mr Doan and Mr Mitchell sat in the rear seats. Mr Doan was heavily drug-affected. To Mr Spence's great annoyance, Mr Doan was also singing and talking constantly. Eventually, fed up with his noise, Mr Spence put Mr Doan in the boot of the car. But Mr Doan continued to sing. From the front seat, Mr Muja asked Mr Doan whether he was "OK", to which he replied, "Yeah."

11 At about 9:00 or 10:00 a.m., Mr Spence stopped the car in Pakenham at premises belonging to Boris Miletic. Mr Spence opened the boot of the car and said to Mr Miletic, "What do I do with this?" or "Do you want this?" Mr Miletic noticed that Mr Doan was groaning and that he appeared to be drug-affected. He told Mr Spence that it "is dangerous to have someone in the boot"; and said, "What if someone runs up the back of you?" Mr Spence just shrugged, shut the boot and drove off.

12 At some stage during the trip, Mr Spence stopped the car, released Mr Doan from the boot and took him into a chicken shop. After that break, Mr Spence allowed Mr Doan to resume his seat in the rear of the car. At another point, Mr Spence took all three passengers' mobile telephones and placed them on the floor of the car at Mr Muja's feet.

Events immediately preceding the killing of Mr Doan

13 Upon arrival at WR's property in Johnsonville (which is near Bairnsdale), Mr Spence dragged Mr Doan into a shed. Mr Muja followed. Mr Spence put Mr Doan on the floor and held him down with his elbow on his neck. He demanded to know why Mr Doan's friends were in gaol, but not him, and accused him of wrecking another person's life by getting him started on drugs. Mr Muja questioned what Mr Spence was doing and told him to calm down. Mr Spence said he was suspicious of Mr Doan and another. Mr Muja said, "What if it was the other one, man? You can't fucking do that to him."

14 Mr Mitchell, who had been at the boot of the car getting some food until that point, then entered the shed and closed the door. He tied Mr Doan's hands behind his back with tape. Mr Muja told him to take it easy and to "give him a chance to talk". Mr Spence said, "No, fuck the dog." Mr Mitchell said, "I worked in the butcher's before. We'll cut him up."

15 At that point, WR entered the shed. He saw Mr Doan lying on his side with his hands and mouth taped up. His eyes were bloodshot and he looked exhausted. WR became concerned that Mr Doan could not breathe. So, using a pair of scissors, he cut a hole in the tape over Mr Doan's mouth. Mr Spence then "freaked out". Mr Mitchell took tape from a work bench and held Mr Doan's head while Mr Spence taped his mouth again. Mr Spence said, "This piece of shit done this." WR asked whether he was sure about these things. Mr Spence and WR then left the shed.

16 Shortly thereafter, Mr Spence returned holding a rifle. Mr Muja questioned what Mr Spence was doing and said it was stupid. Mr Spence told Mr Muja, "You're fucking dead too ... I'll blow you, I'll blow you off, I'll blow you up." Mr Muja said, "Give him a chance, man. Give him a chance, mate. What if he hasn't done anything to you?" Mr Spence said, "No, the fucking dog and whoever [is?] for him is going down too." He then told Mr Muja, "Get that fucking plastic bag and put it on his head." Mr Muja said he did not want to do that. Mr Spence came close to Mr Muja and said, "You're fucking dead." Mr Muja then relented, took the bag and put it on Mr Doan's head, but left it untied at the neck. Mr Spence then told Mr Muja to tie the bag. Mr Muja refused.

17 Mr Spence then turned to Mr Mitchell and told him to tie the bag. In a moment that I dare say will haunt him forever, Mr Mitchell did as he was told, and used the tape to tie the bag around Mr Doan's neck. Mr Doan was unable to breathe or even scream. He suffocated to death.

18 Mr Spence said, "He's dead. Help him." He then left the shed and returned a short while later. The three men sat down and had a smoke. Mr Spence said, "What's the point in hiding? We're all fucked. You know anyway we're fucked." Mr Spence and Mr Mitchell then injected themselves with a drug. Mr Mitchell began shaking. Mr Spence said to Mr Muja that, had he not come on the trip, Mr Doan would not have come either. Mr Muja responded, "So, I was just a guinea pig?" Mr Spence said, "He's a fucking dog." He pointed the gun at Mr Muja, who then said, "I've got a daughter. I've got a family." Mr Mitchell said, "Listen, no body, no crime," and added, in what Mr Rochford accepted was merely an act of bravado, "I've done it quite a few times." Mr Muja said, "Whatever, man." Mr Spence started laughing and said, "Listen, man, I got to go, but this got to burn ... we got to burn ... you help him." Mr Spence then left the shed.

19 Mr Mitchell then said to Mr Muja, "We've got to burn it." He got a large cardboard box and, with Mr Muja, placed Mr Doan's body in it and taped it closed. Mr Mitchell again said to Mr Muja, "We've got to burn it." The two men found a trailer, placed the body on it and then placed wood on top, which Mr Mitchell set alight. The fire produced smoke. Mr Muja said, "You're gonna have the fire [brigade] and the fucking police and everybody here." Mr Mitchell put out the fire with water.

20 At some point, Mr Spence gave Mr Muja $1,000 in cash and then left the property.

21 The next morning, Mr Muja and Mr Mitchell left in WR's Holden utility. Mr Mitchell drove, as Mr Muja did not have a licence. He dropped Mr Muja at a bus stop in Bairnsdale. Mr Muja gave Mr Mitchell $200 for driving him. Mr Mitchell drove around in the ute and eventually returned to Melbourne by train. Mr Muja went to a local hotel and played poker-machines before catching a train to Melbourne. He stayed one night at the flat he and Mr Doan had shared before leaving to spend a night in a hotel in Geelong and then heading to Adelaide.

22 After Mr Muja and Mr Mitchell had left, WR noticed the partly burnt body. He and AC, a 14-year-old boy, moved the box containing the body to a grassed area and burnt both until there was nothing but ashes.

23 Later still, the ashes were removed from the property by two other men. It is believed that the ashes were deposited into a river or stream.

24 During an investigation into an aggravated burglary by WR committed on 4 February 2013, police received information that suggested Mr Doan had been killed at the Johnsonville property on or about 6 January 2013. Search warrants were executed at those premises subsequently. Police discovered Mr Doan's blood on the back of the driver's headrest in the Holden Calais Mr Spence had driven on the day of the killing.

25 On 4 April 2013, police arrested and interviewed Mr Mitchell. He denied any involvement in the disappearance of Mr Doan.

26 On 6 June 2013, police arrested Mr Mitchell again and took him to the offices of the Homicide Squad for interview. As a result of an overdose of drugs taken just as police were about to arrest him, Mr Mitchell was taken to hospital where he remained for a few days.

27 On 9 June 2013, Mr Mitchell was taken back to the Homicide Squad and interviewed. Amongst other things, Mr Mitchell admitted or asserted the following: He knew Mr Spence, who used to sell him "ice". Mr Spence arrived at his place and said they were going fishing. They went to a place in St Albans where he met Mr Doan and Mr Muja for the first time. They drove and drove. He sensed something was wrong. Mr Spence called Mr Doan a "dog" and put him in the boot. They arrived at the place in the dark. He did not see Mr Spence drag Mr Doan to the shed. But when he (Mr Mitchell) got to the shed, "they" were "going at him" (i.e. Mr Doan), calling him a "dog" and saying, "You narked us." Mr Mitchell thought they were scaring him, "giving him a bit of a punch and ... whatnot". He had tape on his mouth and was tied by then. Mr Mitchell admitted saying, "I worked in the butcher's before, we'll cut him up." That was said just to scare him. It was when the plastic bag was put over his head and gaffer taped. Mr Spence disappeared and then came back with a "sawn-off". Mr Mitchell said, "You're not shooting him." Mr Spence said, "No. Go over there and strangle him, finish him off". Mr Mitchell made it look like his hands were around him. He did not want to do it. But there was a shotgun there. "And," said Mr Mitchell in his interview, "if he wasn't gunna shoot him, who was he gunna shoot?" He assisted in disposing of Mr Doan's body by putting it in a cardboard box, pouring petrol over it and lighting it. He left the property in a utility and drove around before taking a train to Melbourne.

28 Mr Doan's family are, of course, devastated at the loss of their loved one, and in such heinous circumstances. They are tormented by the terror Mr Doan must have suffered in his dying moments.

29 So much is revealed by the victim impact statements of Mr Doan's mother Kim Phuong Ngo and his sister Lien Doan. The statements were tendered (Exhibits 2 and 3) and read to the Court by Mr Hutton. Ms Ngo, Ms Doan and other members of Mr Doan's family were present at the plea hearing.

30 Since her son's death, Ms Ngo feels she no longer cares about the world and that her soul has been taken from her. She knows that he is gone but cannot help hoping he might walk through her door one day. She still sets a place for him at meal times and talks to him but then offers the food to his spirit. It pains her that she has not been able to bury her son, for not even his ashes have been recovered.

31 Ms Doan explains that, in their family's culture, those who die without a proper burial ceremony become "wandering souls who cannot lay to rest [and who] may never be reincarnated and enjoy life again". She speaks of how her mother has even become a vegetarian in the hope of gaining some good karma for her son's soul, but that she has lost a good deal of weight as a result.

32 The victim impact statements are powerful and extremely moving documents. I have taken their contents into account in sentencing, although I have also allowed for the fact that, while Mr Mitchell is responsible for Mr Doan's death and for partially burning the body, he is not responsible for the total destruction of the body.

33 I turn now to the nature and gravity of the offence.

34 In this State, manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years' imprisonment.[1]

35 The offence is serious, by definition. A human life has been lost. As Ms Doan observed in her victim impact statement, when a child pre-deceases his or her parents, it reverses the natural order of things. Such a death must be all the more unbearable when the child - or sibling or parent - is killed as a result of criminal behaviour.

36 It is the prosecution case, and accepted by Mr Mitchell, that he participated in an unlawful and dangerous act at the direction of Mr Spence that resulted in the death of Mr Doan. The prosecution also accepts that Mr Mitchell did not have an intention to kill or to cause really serious injury. Thus the charge of manslaughter, instead of murder. The act causing death was Mr Mitchell's deliberately taping up the bag that was already on Mr Doan's head. Such behaviour amounts to an assault without any justification or excuse, and is therefore unlawful. The same act was also dangerous because a reasonable person in the position of Mr Mitchell would have realized there was an appreciable risk of serious injury in so acting.

37 In my view, this is, objectively, a very serious example of manslaughter by an unlawful and dangerous act. There are several reasons. First, the killing was preceded by Mr Mitchell's participating in taping up of Mr Doan, and in taping his mouth a second time after WR removed the tape. Secondly, Mr Doan was in a helpless position, with three men onto one and his hands tied behind his back. Thirdly, while others - Mr Muja and WR - voiced the need for restraint, Mr Mitchell did not. Instead, he joined in Mr Spence's threatening behaviour (for example, by saying, "We'll cut him up"). Fourthly, while, by definition, the act causing death is not, and must not be, said to have been accompanied, on the part of Mr Mitchell, by an intention to kill or cause really serious injury, or even recklessness as to death or really serious injury, for so to find would be to sentence him for murder, not manslaughter, to tape up a plastic bag on the head of a man whose hands are taped behind his back so that he cannot breathe, or even remove the bag, must be regarded as an extremely dangerous and culpable thing to do. Fifthly, the killing was followed by Mr Mitchell's attempt to destroy the body by burning it, which showed a level of callousness that does him no credit.

38 Mr McQuillan submitted that the gravity of the crime was mitigated by the "duress" under which Mr Mitchell operated from Mr Spence during the trip and in the shed generally, and when the gun was produced immediately preceding the act causing death and again just before the attempt to burn the body. He pointed out that Mr Mitchell is small in stature whereas Mr Spence is an imposing man, who seemed to have Mr Mitchell in his thrall. The fact that none of the three men protested when Mr Spence removed their mobile telephones, and that neither Mr Muja nor Mr Mitchell objected to Mr Doan's being put in the boot, might suggest there is something in that point. The other view is that they could have walked away at any time before the gun was produced in the shed. Mr McQuillan's further submission was that, whatever might be said about the accused's inaction earlier, once the gun was produced and Mr Muja was threatened, it is plain that Mr Mitchell was under duress at the time of both the killing and the burning of the body.

39 While Mr Rochford submitted that, given its meaning as a defence at law, "duress" was not the appropriate term to use, he accepted nevertheless that Mr Mitchell was under "pressure" from Mr Spence, who is a large and intimidating individual and who was ordering Mr Mitchell about while holding a gun. He also pointed out, however, that Mr Spence made no direct threat to Mr Mitchell, whereas he did to Mr Muja, who declined to commit the ultimate act.

40 At the time of this offence, duress was a statutory defence to manslaughter (and also to murder).[2] Duress was, and presumably still is, regarded as a defence to manslaughter at common law.[3] Thus, it would be inconsistent with Mr Mitchell's plea of guilty to treat duress as a factor in mitigation, at least in so far as such duress would amount to a defence at law.

41 That said, in my view, it is proper to have regard in mitigation to the duress, or great pressure, under which Mr Mitchell acted at the time of taping the bag and burning the body, to the extent that that duress is an explanation for, rather than a defence to, his criminal behaviour.[4] While there is no evidence that he was directly threatened by Mr Spence with the gun on these occasions, given what had been said to Mr Muja, I accept that Mr Mitchell thought that serious violence, or perhaps even worse, might come to him if he did not comply with Mr Spence's directions. That, in turn, lessens his moral culpability.

42 In conclusion on the nature and gravity of the offence, I should make four further things clear. First, I do not accept that Mr Spence's behaviour, stature or his relationship with Mr Mitchell results in anything but minimal mitigation of his behaviour prior to the production of the gun. Put simply, Mr Mitchell must have realized that Mr Spence had violence on his mind from an early stage of the trip; he could have sought to protest or walk away at that point, yet he chose not to do so. At least Mr Muja showed some resistance later in the shed, even at the point of a gun, whereas Mr Mitchell showed none. Secondly, despite the great pressure under which Mr Mitchell was placed when the gun was produced, for the reasons I have already given, I still regard this as a very serious example of manslaughter. Later, we shall see that Mr Mitchell described his actions as "putrid". That is strong language, but apt nevertheless. Thirdly, Mr McQuillan submitted that the sentence should be "below the halfway mark in the range of seriousness for this type of offending", particularly when regard is had to the duress under which Mr Mitchell acted. I do not agree. It is substantially more serious than that. Fourthly, that said, but for the fact that Mr Mitchell committed the act causing death and the burning of the body under great pressure from a gun-wielding and intimidating Mr Spence, the offence would be all the more serious and the resulting sentence would be substantially longer.

43 Balanced against the seriousness of the offending are the several other mitigating factors on which Mr Mitchell is entitled to rely.

44 Before going to those factors, I should add that Mr Mitchell's personal history is set out in detail in the neuropsychological report of Luke Delany of ARBIAS (Exhibit 4), the psychological report of Jeffrey Cummins (Exhibit 5) and the notes of psychiatrist Dr Mark Symons (Exhibit 6). I shall not repeat that detail in these reasons, as some of it is deeply private and tragic, although I will be referring to aspects of those documents shortly.

45 The first matter in mitigation is, as indicated earlier, after initially denying involvement in the offence, Mr Mitchell ultimately made extensive admissions to police when interviewed on 9 June 2013.

46 Secondly, Mr Mitchell's plea of guilty is a very important factor in mitigation.

47 While he ran a contested committal hearing, so that the plea cannot be said to have come at the earliest practical stage, his plea offer came well before trial.

48 The plea of guilty obviated the need for a trial and thereby saved considerable scarce Court, police and prosecutorial resources, spared witnesses the ordeal of giving evidence and demonstrates a willingness to facilitate the course of justice. Hopefully, the plea will give Mr Doan's family a sense that at least someone is prepared to take responsibility for their loved one's horrible demise.

49 The plea is also meritorious for the reason that, given the evidence of duress, some in Mr Mitchell's position may well have advanced a formal defence of duress before a jury, which might have resulted in a complete acquittal, whereas Mr Mitchell has eschewed that course, taken legal and moral responsibility for his actions and relied on duress only in mitigation.

50 Thirdly, I am also satisfied that Mr Mitchell is profoundly remorseful for his crime and the impact it has had on Mr Doan's family. There are several reasons for that conclusion.

51 First, his admissions to police and his plea of guilty support that conclusion.

52 Secondly, Mr McQuillan explained, and I accept, that, after he was interviewed initially, when he denied involvement, so ashamed was Mr Mitchell of his behaviour, that he lined up drugs that he would take when the police inevitably would seek to interview him again, which drugs he did in fact take in an attempt to kill himself when the police returned on 6 June 2013.

53 Thirdly, Mr Cummins opines that, when interviewed by him, Mr Mitchell expressed shame, embarrassment, guilt and remorse at his offending.

54 Fourthly, in his sworn evidence before me, Mr Mitchell turned and spoke directly to Mr Doan's family, some of whom were present in Court. He said this:

To the Doan family, I can't express the feelings that you have against me, that's the hate. I can't explain myself too well but the shame ... that I feel and what I've caused you - you've lost a son, a father, a husband, brother - and I can't express how ashamed I am at this point towards - I just, I can't, I'm very sorry, I can't, um - I can't apologize in any way that will make you feel, to bring your son back or anything else. I never knew your son and what happened was just a putrid act of selfishness. Um, I, honestly, I can't express my feelings any more of how much shame and hatred towards myself of what's happened to your son.

55 Mr Mitchell is not the most articulate of men, but his evidence eloquently sums up some of the principal considerations in sentencing. By his own admission, he has committed a putrid act, which has caused Mr Doan's family immeasurable loss, for which he hates himself and for which he expects to be hated by others. Mr Rochford accepted that that was a genuine expression of remorse. I agree. Indeed, I have not observed a more heart-felt expression of remorse from the witness box.

56 A relatively early plea of guilty preceded by admissions and attended by profound remorse usually should result in a substantial discount on sentence. Mr Mitchell's plea of guilty falls into that category and shall attract a substantial discount.

57 Fourthly, I accept Mr McQuillan's submission that Mr Mitchell will find prison substantially more burdensome than many others do. There are several reasons for that conclusion.

58 First, Dr Symons opined in February 2013 that, because of his ADHD and depression, the latter of which had worsened at that point in time, Mr Mitchell "would experience a custodial sentence much more severely than someone who does not have these conditions".

59 Secondly, Mr Cummins, whose report was much more recent, took a similar view, except that he added that another factor was the fear Mr Mitchell has for his own welfare in custody.

60 Thirdly, I was told by Mr Mitchell in evidence on the plea, and I accept, that he has been serving his sentence in "protection" because he has been "stood over" by other prisoners in relation to matters unconnected with his offence. He is also concerned about reprisals from Mr Spence because of his reliance on duress by him in mitigation. The authorities have sought to ensure that Mr Mitchell is kept in a separate prion from Mr Spence. He is a physically small man, one that, I accept, might be the target of cowardly types in prison.

61 Fourthly, Mr Mitchell explained in his evidence that he has not had, and does not expect to receive, any visits from his family while in prison. His parents are still alive and he has three siblings. While he has had some contact with his father, Mr Mitchell is so ashamed of his offending that he does not want any more shame brought upon his family by their having to visit him in prison. Thus, I accept that it is likely that his time in gaol will be very lonely, and largely, if not entirely, devoid of visits from his family.

62 Fifthly, while Mr Mitchell has several prior convictions for relatively minor drug, dishonesty, drink-driving and "street" offences, which reflect the chaotic and drug-addled life he has led at times, and one more serious set of driving offences, for which he spent a month in gaol, he has only one court appearance for offences of violence. In 1995, when he was only 19, Mr Mitchell was fined in the Court of Petty Sessions at Perth for common assault and assault occasioning actual bodily harm. Mr McQuillan explained, and I accept, that the offending involved him in helping a friend deal with a man who had been violent to a young a woman and threatening her child.

63 I accept that there is nothing in Mr Mitchell's criminal history that suggests he has any disposition to violence generally or that he is likely to repeat the behaviour of the type he engaged in on 6 January 2013.

64 Sixthly, while he has an unsatisfactory work record in recent times and a long history of illicit drug abuse, I am nevertheless satisfied that Mr Mitchell has good prospects of rehabilitation.

65 After completing Year 11 and a few weeks of Year 12, Mr Mitchell left school and worked in various unskilled jobs in Australia and overseas. He did two years of an apprenticeship in sheet metal work, but lost that job - probably because of his excessive consumption of alcohol at the time and perhaps because his employer's son needed a similar position. There is some suggestion he may have suffered some cognitive impairment as a result of a traffic accident or accidents when younger, but this is not clear. It may well be that his heavy drug use has impacted on his cognitive abilities. In any event, in recent years, he has worked very little and, at the time of the offending, was on a disability support pension - which, Mr McQuillan conceded, is likely to remain the case upon his eventual release.

66 So, while it is unlikely he will be assisted in his rehabilitation through paid employment, Mr Mitchell's admissions, plea of guilty, profound remorse and limited prior convictions for violence, and especially his profound remorse, give me confidence that he will not reoffend in any violent way in the future.

67 I am less confident about his ability to steer clear of illegal drugs. He has abused alcohol, cannabis, heroin and methamphetmines at various stages of his life. He has also had difficulties with buprenorphine. He has had some rehabilitative treatment in the past, but it does not appear to have been very successful.

68 There is some suggestion Mr Mitchell was drug-affected at the time of the offending, but I am not satisfied that is so or that, if he was, it made any significant contribution to his offending. The only meaningful connection between illicit drug use and his offending about which I am satisfied is that all persons connected with the incident were involved in the drug world. Hopefully, he can stay away from that world upon his release. Given the length of the sentence that must be imposed, he will have plenty of time to do drug rehabilitation courses in prison or otherwise make attempts to rid himself of the desire or need for illicit drugs in order that his chances of reintegration into the community might be improved.

69 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, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

70 In my view, general deterrence, just punishment and denunciation are important considerations in the present case. People should understand that behaviour of the type engaged in by Mr Mitchell is denounced by the courts and will result in punishment that reflects that a life has been taken in horrible circumstances and that the lives of the deceased's loved ones have been marred forever. That said, I have moderated the weight to be given to those sentencing purposes on account of the duress to which Mr Mitchell was exposed when committing the offence and attempting to burn the body.

71 While specific deterrence must be given some weight, I have given it less weight than otherwise on account of Mr Mitchell's admissions, plea of guilty, remorse, limited prior convictions and good prospects of rehabilitation, and the related conclusion that I think it unlikely he will offend in a violent manner in the future.

72 Given those same factors, there is only a very modest need to give weight to protection of the community as a sentencing purpose. In my view, protection of the community will be better served by the fixing of a sentence that maximizes Mr Mitchell's chances of rehabilitation.

73 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. In the area of sentencing, it is almost always difficult usefully to compare other cases, but I have received some assistance by considering the sentences, and the reasons for those sentences, imposed by this Court and the Court of Appeal in other cases of manslaughter.

74 Section 5(3) of the Sentencing Act 1991 (Vic) 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. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied that principle and these provisions when fixing sentence.

76 For the manslaughter of Nhan Ngoc Doan, Peter Mitchell is sentenced to ten years' imprisonment with a non-parole period of seven years.

77 I declare that 613 days of pre-sentence detention are to be reckoned as already served under the sentence.

Section 6AAA declaration

78 Section 6AAA of the Sentencing Act requires that I must state the sentence and non-parole period I would have imposed but for the plea of guilty. That task is a difficult one given the interaction between a plea of guilty and other mitigating factors and the nature of the intuitive synthesis in sentencing. Nevertheless, doing the best I can, but for Mr Mitchell's plea of guilty, I would have imposed a sentence in the order of 13 years' imprisonment with a non-parole period in the order of ten years.

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

[2] See the now-repealed s 9AG of the Crimes Act 1958 (Vic), which applied to murder and manslaughter committed between 23 November 2005 and 31 October 2014.

[3] See, e.g., R v Evans & Gardiner (No 1) [1976] VicRp 52; [1976] VR 517 at 522 per Lush J. It appears certain that duress is not a defence to murder in Victoria where the accused performed the actual killing, but the matter might not be regarded as settled where the accused is not the perpetrator (see, e.g., R v Japaljarri [2002] VSCA 154; (2002) 134 A Crim R 261 at [50]- [51] per Eames JA, with whom Batt JA and O'Bryan AJA agreed; R v Goldman (No 4) [2004] VSC 291; (2004) 147 A Crim R 472 at [11]- [31] per Redlich J).

[4] See, e.g., R v Fletcher [2002] VSCA at [4]-[5] & [12] per Callaway JA, with whom Buchanan and Vincent JJA agreed.

At a glance

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Judgment (86 paragraphs)

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