The Queen v O�Donnell [2016] VSC 390

2 You entered a plea of guilty to manslaughter at an early stage. You also gave an undertaking to give evidence against your two co-accused in accordance with your statement made to police on 8 March 2015.

3 Each of your co-accused has now also entered a plea of guilty to manslaughter.

4 At the time of your offending, you were staying at the home of one of your co-accused, Garren Philp, in Pakenham. Philp was very old friend of yours. He was such a close friend that you named your first child after him.

5 You went to stay with Philp in late August or early September 2014 because he had asked you to help out while he undertook treatment for alcohol abuse. You are a recovering alcoholic and a participant in the Alcoholics Anonymous program and you believed that you could help him.

6 The second co-accused, Dean Brooks, was also living at Philp's house in January 2015. Brooks' mother was in a relationship with Philp. You barely knew Brooks, who had only lived at Philp's house for a couple of weeks at the time of the offending. He is in his early 20s and therefore considerably younger than you.

7 The deceased, Raymond Parker, had been known to you since about 2009 and to Philp since around 2007.

8 Mr Parker was a retired butcher. He was also a long-time cultivator of cannabis. By the time of his death, he had been growing cannabis for about 30 years without being detected by authorities. He regularly sold cannabis to Philp. Philp told you that he was selling three pounds of cannabis a week for Mr Parker, for about $3,000 per pound.

9 Mr Parker was living alone in a large rented house outside of Bayles, a small township approximately 76 kilometres south-east of Melbourne. The house is on a 20 acre block set well back from the road, at the end of a long gravel driveway. It is a two-storey house with a double garage. All of the habitable areas, including the kitchen, dining room, lounge room and the five bedrooms are on the upper level. At the time of his death, the ground floor rooms were largely unfurnished, as Mr Parker used the ground floor principally to grow cannabis hydroponically.

10 Philp had been to the Bayles address on at least 20 occasions to take delivery of cannabis or to assist in the manicuring of cannabis plants. He had also helped Mr Parker to bypass the electrical mains. Mr Parker referred to him as 'the Electrician'.

11 Philp believed that Mr Parker kept large amounts of cash at the Bayles address and often talked about this to others.

12 Both you and Philp regularly used cannabis, but you did not realise, when you first went to stay with Philp, that he was also using methamphetamine or 'ice'. When you found out that Philp was smoking ice with others at his home, you told Philp you did not want anything to do with the drug ice, or with his associates.

13 In early September 2014, Philp became aware that Mr Parker would be travelling interstate. Philp asked you to accompany him to the Bayles address to steal cannabis and money. You and Philp drove to the Bayles address, and Philp remained in the car while you went to the front door and knocked. When no-one answered, Philp encouraged you to enter the house, which you did through an unlocked garage window. You then let Philp into the house and you both inspected the cannabis plants that were being cultivated, but concluded that they were not mature enough to take. You also took a look around the house.

14 In October 2014, Philp told you that he was meeting Mr Parker at McDonald's in Pakenham and suggested that you go to the Bayles address while Mr Parker was out to steal cannabis and money. You went to the Bayles address alone, knocking on the front door to make sure nobody was home, and then entering through the same open window as previously. You went upstairs and searched the lounge room, where you found a black leather bag containing $7,400 in $50 and $100 notes. Downstairs in the laundry, you located a 20 litre plastic bucket that contained five pounds of cannabis already packaged in plastic bags for sale. You took the money and the cannabis.

15 According to your statement to police, you split the money with Philp.

16 In January 2015, you were still staying at Philp's house in Pakenham. Brooks and his mother had moved in there by then.

17 On the evening of 6 January 2015, you accompanied Philp and Brooks to the Cardinia Club, returning home at around 9.00pm. You went to bed, leaving Philp and Brooks in Philp's room smoking ice. In the early hours of the morning, Philp knocked on your door and suggested that you go to 'Ray's', being the Bayles address. You got dressed and went to the kitchen to make a cup of tea. When you went up to Philp's bedroom and stood at the open door, you could see Brooks and Philp smoking ice with Brooks' mother, Jodie. You, Philp and Brooks then drove to the Bayles address, apparently intending to steal money, valuables and cannabis from Mr Parker. Having stolen from Mr Parker in October 2014, you believed that he would not report the theft to the police, because to do so would expose his own illegal activities.

18 When you arrived at the front gate of the Bayles address, Philp told you and Brooks to go in, while he waited a minute or two before bringing the car up the driveway. When you asked him why, he said, 'In case Ray's there'. This was when you first realised that Mr Parker might be at home.

19 You had been gaoled 20 years earlier for aggravated burglary, and you had previously told Philp that you would not get involved in this type activity again.

20 However, when Brooks jumped out of the car and Philp told you to go with him, you felt pressured, and you followed Brooks. Brooks entered the house first through the open garage door and started to go up the stairs. You followed. The creaking of the stairs may have caused a dog to bark, because when you got to the top of the stairs, you heard a voice that you knew to be Mr Parker's say, 'Who's there? Who's that in my house?' Instead of retreating, you and Brooks went in the direction of the voice. You were now well aware that Mr Parker was at home and you must have known that some form of assault would be necessary in order to subdue him.

21 Mr Parker's bedroom was in complete darkness when you and Brooks entered. You bumped into Mr Parker. You pushed him and you heard Brooks to your right going at Mr Parker, who fell to the ground. You could hear shuffling and movement and you were aware from the sounds that were being made that Brooks was kicking Mr Parker.

22 At this point, you felt a sharp pain in your right hand and, because your hand felt wet, you guessed that Brooks had stabbed you with something sharp, like a knife. You left the bedroom to see how badly your hand had been cut, going into the lounge area where there was some light. You could hear lots of noise coming from the bedroom. You yelled out to Brooks to stop, but you realised that, given the distance between you and the commotion in the bedroom, Brooks would not have heard you.

23 You then rang Philp to find out where he was and to ask him to intervene. You went downstairs to examine your hand by the light of the hydroponic set-up. When you opened the front door, you found Philp sitting on a chair, smoking a cigarette. You told Philp to go upstairs and stop Brooks, as things were getting out of hand.

24 At this point you could hear Brooks thrashing around upstairs yelling, 'Where's the fucking money?' and 'Tell me where it is'. Philp went upstairs. You went upstairs a minute or two later and, when you got there, you found Philp sitting on a dining chair close to the entrance to the bedroom, but out of sight of Brooks and Mr Parker. He was leaning forward and appeared to be listening to what was going on in the bedroom, where the light was now on. He did not intervene to stop the assault on Mr Parker.

25 You entered the bedroom. You saw that Brooks had a knife in his hand and that Mr Parker was on the ground with a large cut on his arm. You told Brooks to stop, but Brooks took no notice. You left the bedroom to speak to Philp, who was by then ransacking the house. He ignored you as well. You returned to the bedroom and confronted Brooks, who finally let go of Mr Parker.

26 Brooks retreated to the lounge room and slashed the bottom of a chair. He then returned to the bedroom and started yelling at Mr Parker again. You told Philp to stop him. This time, Philp told Brooks to stop, and Brooks did.

27 The three of you got into the car and returned home.

28 Mr Parker was found dead in his bedroom a week later, on 13 January 2015, by a friend who had been asked to check on him. He was face-down on the floor at the foot of the bed and all but naked. Bruising and lividity marks were present on his side, back, left arm, face and neck. A length of yellow rope was tied to the bedhead, and smears and drops of what appeared to be blood were found on the walls, floor, bedding and on medication in the master bedroom. The contents of the house had been turned upside down, with drawers removed from cabinets, furniture overturned, the under-side of a couch cut open and the cistern lids removed from the toilets. Fingerprints were located throughout the house, including an impression in blood on the right hand side door of the vanity in the master bedroom en suite which belonged to Brooks. Blood was found in the lounge room belonging to you.

29 Following a post-mortem carried out on the following day, the cause of Mr Parker's death was identified as 'complications of chest injuries in the setting of ischaemic heart disease'. The post-mortem revealed multiple blunt force injuries to Mr Parker's head, upper limbs, torso, back and lower limbs, resulting in extensive subcutaneous haemorrhages and multiple fractures. At least ten separate impacts to his body were identified, along with a sharp force injury to his upper arm. Mr Parker also had significant natural disease in the form of coronary artery arteriosclerosis, enlargement of the heart, scarring of the heart muscle and cirrhosis of the liver.

30 On 25 February 2015, you were arrested by New South Wales detectives at your home near Wagga Wagga. You were conveyed to Wagga Wagga police station, where you declined to participate in a formal record of interview. However, in a recorded conversation between you and investigators, you told them that what happened was an 'ice-capade' that went seriously wrong, that you tried to stop it, that neither you nor Philp had touched a hair on Mr Parker's head, that Mr Parker was alive when you left the Bayles address, and that you did not know that he was going to die. You also said that you did not know what Brooks had taken, but when you found out, it really shocked you.

31 You were charged with the murder of Mr Parker and extradited to Victoria the following day. You indicated at a very early stage a willingness to plead to a charge of manslaughter, and you provided a formal statement to police on 8 March 2015.

32 You also gave an undertaking on oath to assist investigators and to give evidence in accordance with your statement against your two co-accused.

33 The objective seriousness of your offending must be assessed in the following context.

34 You were complicit in an assault on Mr Parker that caused his death.

35 Mr Parker was assaulted in his home in the dead of night. He lived alone and in a relatively isolated location. He was elderly and frail. He must have been terrified.

36 The assault was protracted and brutal. It involved a knife. Apart from being beaten and cut, Mr Parker had a rope tied around his neck.

37 Mr Parker's death may also have been protracted, we do not know. Mr Parker was effectively left to die. No effort was made to secure any kind of assistance for him.

38 Apart from pushing him in the initial confrontation, you did not lay a hand on Mr Parker yourself. You were not physically involved in the brutal assault on him.

39 However, you entered the Bayles address contemplating that Mr Parker may be there and may have to be subdued. When it was confirmed that Mr Parker was there, you did not retreat, but went towards him, contemplating that he would have to be subdued.

40 You tried to stop the assault on Mr Parker, but not immediately. You tried to galvanise Philp to control the situation to no avail. It was only when you saw that Philp was not acting to stop the assault on Mr Parker that you entered the bedroom to try to do something yourself. By this stage, Mr Parker had been subjected to a savage assault.

41 You did not plan to assault Mr Parker. You only became aware of the possibility that Mr Parker would be at the house once you were actually there. You had previously made it clear to Philp that you were not interested in going to Mr Parker's home to steal from him or 'rough him up' if he was there. You did not take a weapon, and you only became aware that Brooks had a knife during the course assault. You repeatedly asked Brooks to stop assaulting Mr Parker, and you pleaded with Philp to gain control of him.

42 In your statement to police, you said that you wanted Philp to take control of Brooks because you felt you could not control Brooks physically. He had a knife, you had been cut by it, and you were scared of being injured again. You considered it more likely that Brooks would respond to Philp than to you.

43 This is a credible explanation for why you did not physically intervene to stop the assault on Mr Parker until some time had passed.

44 I also accept that you were shocked by the violent and disinhibited behaviour involved in that assault.

45 In my view, the manner and circumstances in which Mr Parker was killed, and your role in those events, make this a reasonably serious example of manslaughter.

46 Your moral culpability for your offending must be assessed in the context of your personal circumstances.

47 These circumstances, which include your criminal history, were described in a report prepared by a forensic psychologist, Ms Pamela Matthews, tendered on the plea. Your personal history and criminal antecedents were also described at some length by your barrister from the Bar table.

48 You were 49 years old at the time of the offending, having been born at the Dandenong Public Hospital on 31 December 1965, the youngest of five children.

49 Your early childhood and formative years were marred by significant social disadvantage. Your mother, Beverley Turnbull, was an indigenous woman who, as part of the Stolen Generation, was adopted by a white couple and lost all connection with her people. Your father was a hopeless alcoholic all of his life, who was constantly in and out of gaol. He was violent towards your mother and towards you and your siblings.

50 Your mother left your father when you were six or seven. Your mother did her best, but you and your siblings often ran amok. As the youngest, you were regularly used by your siblings as a 'front' for thieving.

51 You were made a ward of the State when you were only eight years old. You lived in a number of notorious 'children's homes' or 'reception facilities' over the next five years, including Allambie, Baltara and Turana.

52 Becoming a ward of the State had devastating consequences for you. You became estranged from your mother and older siblings for a number of years; your formal education was fragmented and you advanced no further than Year 8; you were subject to systematic violence and abuse, including sexual abuse, in the institutions in which you were housed.

53 In my opinion, you suffered the worst of childhoods.

54 However, when your mother remarried, you went to live with her and her new partner, who, while also an alcoholic, was a decent man who was keen to have you join the family. It was he who proposed that you leave the children's home and come to Maryborough to live with him, your mother and his two sons.

55 Your stepfather was a bricklayer and your two stepbrothers were apprentice bricklayers. You, too, learned to lay bricks and you worked as a bricklayer with your stepfather, Bill Turnbull, for a number of years.

56 You learned to drink very heavily during the period that you lived and worked with Bill Turnbull and his sons. That period was not free of trauma for you either. One of your stepbrothers committed suicide in a most distressing way, and the other was killed in a car accident. Bill Turnbull himself committed suicide years later, in the same place and in the same way as his son.

57 Following the deaths of his sons, your stepfather stopped drinking and you, seeing this example of sobriety, attended an indigenous centre for recovering alcoholics. You too became sober for a period. However, your life has since been marked by your struggle with alcoholism.

58 When you were 18 years old, you went to live in Coffs Harbour, where you remained for ten years on and off while in a relationship with a woman named Vanessa. Early on in this period, you were gaoled for what appear to be property offences. You were also frequently in trouble for un-licenced driving.

59 By 1993, you were living back in Melbourne with a girl named Kellie. You had been sober for 14 months, but fell off the wagon. You agreed to a friend storing a car at the back of your house, resulting in convictions for theft and handling stolen goods. You received a suspended sentence.

60 In 1994, you served a three month prison sentence for breach of the earlier suspended sentence.

61 The following year, 1995, you were living with your sister, Denise, in a squat in St Kilda. Denise was selling speed, and another drug dealer bashed her and robbed her of $3,000 worth of drugs. You went to the dealer's house, smashed in the front door and attacked him. You were given an Intensive Correction Order but, because you were found in possession of cannabis in the same year, you breached the ICO and you were sent to gaol for 319 days.

62 This period spent in gaol made a big impression on you.

63 By the time you were sentenced, you had met the mother of your two sons, Julie Hosford. Julie became pregnant with your first child on the night you met her. You were allowed to remain out of gaol to see your son born, but went into custody immediately afterwards. You were depressed because you had a newborn son and you were in gaol. You were desperate to get out and vowed never to return.

64 Once out of gaol, you started your own bricklaying business and, in November 1998, your second son was born. You broke up with Julie the following year because she was using drugs and you were drinking again. You felt that you should leave in the interests of the children. You moved not far away into a caravan park in Hobsons Bay to be near them. They came to you every weekend or every second weekend, depending on how Julie was feeling. You were an active and engaged father to them.

65 You lived in the caravan park for three years. While you were living there, you met your current partner, Simone Laurie, at the Altona Workman's Club. Simone is a childcare worker. She is tea-total and has been in steady employment for 25 years. She is devoted to you. The two of you are building a house together on the land that you own near Wagga.

66 Notwithstanding Simone's positive influence, in 2007 you were convicted of criminal damage and possessing cannabis. The criminal damage charge was the result of an incident in a TAB outlet which began when the owner refused to pay out on a winning bet, alleging that you had 'fixed' it.

67 In 2011 your work as a bricklayer was sporadic. You started selling cannabis and speed to people with whom you were sharing accommodation in a boarding house in North Melbourne. One of the boarders told the police what you were doing because you refused to supply him. You told your barrister that you did not like the type of people that came with selling speed and that getting caught early on was 'a blessing in disguise' because it knocked the enterprise on the head. However, you continued to use and sell cannabis.

68 Indeed, about eight months later, the same person informed on you in relation to cannabis, and that is why you have a conviction for possessing cannabis in 2012.

69 I have considered your prior offending in the context of your personal history, as the two are inextricably bound together. You have a substantial criminal history, but a limited history involving violent offending. The principal incident involving violence was a response to the bashing of your sister. That was over 20 years ago.

70 You have a very disadvantaged background. You experienced abuse, violence and neglect from a very young age. You were institutionalised throughout an important part of your childhood. The names of the institutions in which you were held are synonymous with neglect, abuse and suffering. The impacts of such severe hardship and disadvantage during your formative years were noted by Pamela Matthews to have caused ongoing complex trauma, which she opines is likely to be causally related to your drug use and criminal associations. I accept this evidence.

71 The High Court of Australia[1] and the Victorian Court of Appeal[2] have recognised that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark throughout the person's life. It becomes a feature of the person's make-up that remains relevant to the determination of an appropriate sentence, notwithstanding the person has a long history of offending.

72 I have formed the view that your severely disadvantaged background and the complex trauma that you have experienced since you were a young child significantly reduces your moral culpability and the weight to be given to general and specific deterrence in sentencing you.

73 I also accept that you are genuinely remorseful for your involvement in the killing of Mr Parker. From your description of events as they unfolded on the night in question, which has been largely accepted by the Crown, you were distressed by the assault on Mr Parker. You were shocked by the behaviour of your co-offender and you tried to stop him. You cooperated with the police and offered to plead guilty to manslaughter at an early stage. You also expressed remorse to Ms Matthews, telling her that you felt sorry for Mr Parker's family and friends and stating that you wished to apologise to them for what had happened. You told her that you did not intend to hurt Mr Parker.

74 Your evident and immediate remorse is relevant to your prospects of rehabilitation.

75 Despite your traumatic background and the mark that it has left on you, you have a good work history and you have been a caring parent and partner. Although you continued to abuse cannabis until your incarceration, you had successfully managed your alcoholism and had been sober for some time. Even in prison, you have endeavoured to work whenever possible and you have refused to become involved with drugs - at some personal cost.

76 Although you failed to complete an apprenticeship in bricklaying because you did not pass the formal assessments required at Dandenong TAFE, you have worked throughout your life as a bricklayer. In 2013, Dandenong TAFE contacted you and organised for an assessment of your current work performance, granting you your papers as a fully qualified bricklayer. It is something of which you are extremely proud, and rightly so.

77 You have very real family supports in your life. Julie Hosford came to the committal proceeding from New South Wales. She has written a letter to the Court in which she states that you were always a hard worker, and always provided and cared for your sons. She also describes you as polite and respectful to her elderly parents.

78 Your partner, Simone Laurie, has written to the Court, describing you as a caring and thoughtful person who is a good friend to everyone. According to Ms Laurie, you are the kind of person that people ring when they need help. Since you have been in prison, she has visited you twice a week and has talked to you on the phone every day. Contact has been more limited recently because of security concerns resulting from your cooperation with the police.

79 You also have the support of your colleagues at Alcoholics Anonymous. John Saunders, who is your sponsor, attended Court and has written to the Court about your diligence in attending meetings and your value as a member of the group. You have helped to set up meetings and clean up afterwards, and have gone out of your way to make new members feel welcome.

80 In her report, Pamela Matthews has stressed that you require further drug and alcohol intervention and support, along with sensitive treatment to address, among other things, the development of more functional behaviours and emotional responses. Having recommended further drug and alcohol intervention, however, Ms Matthews recorded that you have been sober for a full three years and off cannabis for a period of 15 months and that you are certain that you will not resume using it. I hope that that is the case.

81 Having regard to your history, the remorse that you exhibit, the support of your family and the relative absence of previous violent offending, I consider your prospects of rehabilitation to be good, despite the trauma that you carry and your need for the treatment recommended by Ms Matthews. You wish to and are capable of leading a useful and productive life. You have done so in the past, demonstrating a capacity for hard work and showing care for your friends and family.

82 Your plea of guilty to manslaughter, your agreement to give evidence against your co-accused and the special hardship that you will suffer in prison as a result of both your co-operation with the police and your trauma, are all also relevant to the sentence that will be imposed.

83 According to Ms Matthews, there are a number of psychological factors that will make your time in prison more onerous than for 'age matched peers'.

84 Your time in prison on remand has been particularly difficult. However, the way in which you have conducted yourself in prison has demonstrated your work ethic and your willingness to rehabilitate.

85 You were initially placed in the mainstream prison where you worked in the bakery, rising to 'top hand'. However, some of the other prisoners found you too industrious, and one of them pulled you aside to remind you that prison was not a workplace. You also declined an offer of drugs, which led to further tension. You were assaulted in the kitchen for your canteen money, and placed in solitary confinement for 12 days, apparently for your own protection.

86 You were subsequently given a job in Admissions - a trusted position - where you worked for five to six months. This came to an end when word got out that you had agreed to be a witness for the Crown. You were placed in protective custody and lost your job.

87 You remain very frightened because you are a known informer. You are in the highest level of protective custody with the most serious sex offenders, and you detest them, given your history as a victim of child abuse.

88 Ms Matthews notes that you feel understandably 'unsafe', 'sick' and 'unsettled' in a protective environment where you are housed with sex offenders, and that this experience causes you to experience intrusive memories. I accept that this circumstance will make prison more much more onerous for you and may exacerbate your mental health problems.

89 I turn to consider the effect on sentencing of your plea of guilty and in particular your undertaking to give evidence in accordance with your statement.

90 You entered a plea of guilty for manslaughter at an early stage. I give your plea its full weight for its utilitarian value, as well as for the expression of remorse that it demonstrates. Your plea saved the community the expense of either a separate trial or a complex trial involving a number of co-accused.

91 You have also agreed to assist the prosecution by giving evidence against your co-accused in accordance with your statement. This is a matter of considerable importance in your sentencing. The Crown agreed that your statement was a valuable one in the case against Philp and that you should therefore have a significant sentencing discount for the undertaking you have given.

92 The fact that Philp has now pleaded guilty to manslaughter does not mean that you should not enjoy the sentencing discount. It is a very weighty matter to undertake to give evidence against your co-accused, as it is well-known that the prisons are full of people who take a grim view of such conduct. Moreover, it is good public policy to encourage offenders to inform against co-offenders in cases of this kind, where person is assaulted in the dead of night and there are no independent witnesses.

93 I accept that your decision weighs very heavily on you. Your agreement to give evidence against your co-accused will make the term of imprisonment that you must serve even more difficult, because you will always be looking over your shoulder. You will require protection, which limits your opportunity to undertake work and courses in prison. Throughout your sentence and even after release, the decision that you have taken will cause you stress and anxiety.

94 Having regard to the value your evidence would have had, the consequences for you in agreeing to give it, and the public interest in encouraging the provision of information in circumstances like these, you will be given a significant discount on your sentence.

95 The offence of manslaughter carries a maximum penalty of 20 years' imprisonment. This recognises that killing a person strikes at the sanctity of life, which is a core value in our community.

96 The prosecution filed victim impact statements from Mr Parker's five adult children and from his friend Trevor Wilson. It is clear that Mr Parker was a much loved father and friend. Understandably, the manner of Mr Parker's death has shocked and traumatised them.

97 I have had regard to the victim impact statements in sentencing you.

98 I have found your offending to be a reasonably serious example of manslaughter. However, your moral culpability is significantly reduced by your personal history and circumstances. Nonetheless, just punishment, denunciation of your conduct and general deterrence remain important sentencing considerations.

99 I have had regard to the matters your counsel has urged on your behalf including your remorse, the relative absence of previous violent offending and your good prospects of rehabilitation. Specific deterrence does not play a big part in this case.

100 I have also had regard to your plea of guilty and the undertaking that you have given to give evidence against your co-accused.

102 You have pleaded guilty to killing Raymond Parker. You stand convicted of manslaughter.

103 Balancing the relevant factors as best I can, and having regard to current sentencing practices, I sentence you to a term of imprisonment of three years and six months for the manslaughter of Raymond Parker. I fix a non-parole period of two years.

104 But for your plea of guilty and your agreement to give evidence against your co-accused, I would have sentenced you to a term of imprisonment of seven years, with a non-parole period of four years.

105 I declare that you have served 505 days by way of pre-sentence detention, up to but not including today.

[1] Bugmy [2013] HCA 37, [43]-[44].

[2] Marrah [2014] VSCA 119 [16].