The Queen v Pain [2017] VSC 454

2 On 9 June 2014, sick and tired of Mr Pain's accusations and behaviour, Ms Bush resolved to leave her husband permanently. That day, she left their home in Neilborough, just outside Bendigo, and went to live with her daughter Rebecca Lambert, Mr Paris and their child in nearby Raywood.

3 Filled with anger because of his mistaken belief about an affair that never was, and fixed with the belief that his wife might have left him for good, on the evening of 10 June 2014, Mr Pain drove his Ford utility to Mr Paris's home armed with a shotgun and a rifle. Prior to his arrival, he sent a text message to Mr Paris saying, 'I'm on my way, Davey boy.' It is unknown whether Mr Paris saw the message.

4 After reaching the property and driving down the long driveway past the house, Mr Pain did a U-turn and headed back towards the house. He slowed nearly to a stop near a side gate, more or less opposite to where Mr Paris was standing. From the driver's window of his utility, at a range that is unclear but in the order of two-and-a-half to ten metres, Mr Pain fired the shotgun once, striking Mr Paris in the abdomen. Mr Paris yelled, 'I've been shot,' and eventually collapsed to the ground. Mr Pain drove off down the driveway towards the main road.

5 Mr Paris's friend Donald Romey, who had witnessed the shooting in part, noticed Mr Pain stop his utility further down the driveway. Mr Pain got out of the car, carrying the shotgun across his body. In an act of great courage, Mr Romey, who was unarmed, confronted Mr Pain, face-to-face, and told him to leave. Mr Pain got back into the ute and drove away.

6 Mr Romey, Ms Lambert and Ms Bush all rushed to Mr Paris's aid. He was bleeding heavily from the wound in his abdomen. Frantically, and with the assistance of triple-zero operators, they all tried desperately to help him. Later, paramedics arrived and tried to resuscitate Mr Paris. But there was nothing they could do. The shot (which was about No 2 or 3 in size) and the wad had left a large hole in Mr Paris's abdomen and caused serious internal damage, including to his abdominal aorta. Mr Paris died then and there.

7 After he drove away, Mr Pain rang police and others and told them he had shot Mr Paris. He told his sister that he hoped Mr Paris was 'okay'. He arranged to surrender himself to police at his home. He was arrested without incident and has remained in custody ever since.

8 Mr Pain was charged with murder and later committed for trial. Initially, at the commencement of his trial in 2015, he pleaded guilty to murder before a judge of this Court. In 2016, another judge granted his application for leave to withdraw that plea.[1] Ultimately, Mr Pain stood his trial on murder before a jury of twelve earlier this year.

9 The principal issues at trial were whether, when he deliberately fired the gun, Mr Pain intended to shoot Mr Paris and, if so, whether he had murderous intent - i.e. an intention to kill or at least to cause really serious injury. The jury's verdict implies that they were satisfied that he did have murderous intent, for he was found guilty of murder.

10 It now falls to this Court to sentence Mr Pain for the murder of Mr Paris.

11 Before passing sentence, I shall address the following matters:

a) the evidence at trial, and on the plea, in more detail;

c) the impact of the crime on Mr Paris's loved ones;

12 I turn now to some of the evidence received at trial, and on the plea, in more detail.

13 Mr Pain was born in Bendigo on 16 August 1961. He was aged 52, nearly 53, at the time of the murder. Mr Pain was involved in a motorcycle accident when in his twenties. As a result, he suffers health problems relating to his right leg, which is shorter than his left leg. He wears a calliper with a built-up shoe and has also had two hip replacements and a steel rod inserted into his right leg. He has been in receipt of a disability support pension as a result of his afflictions. Nevertheless, he has been able to engage in some work on his farm.

14 Mr Pain and Ms Bush met in 2002 and married in December 2003. They resided at a house on the farm at 21 Jackson Lane, Neilborough. In addition to Ms Lambert, Ms Bush has two other children from her first marriage. Mr Pain also has a son of his own from another relationship.

15 Mr Paris was born in Western Australia on 16 June 1977. He was aged 36, almost 37, at the time of his death. He was the only child of Deborah Paris. He attended school until Year 9, when he left to seek employment. He then had a variety of jobs including tyre-fitting, demolition and fencing, and also worked as a jackeroo and bull-rider. In addition, he worked for Mr Pain on his farm at times.

16 In 2003, Mr Paris formed a relationship with Ms Lambert. Their son Laine was born on 16 April 2006. He suffers from autism. Ms Lambert is his full-time carer. In about 2008, Mr Paris, Ms Lambert and their son moved from Western Australia to Victoria. Initially, they resided with Ms Bush and Mr Pain in Neilborough. About a month later, they moved to a rented house at 1927 Bridgewater-Raywood Road, Raywood. In June 2014, they were still resident at this address, which is where the murder occurred. At that time, Mr Paris was employed at a local piggery.

17 As I indicated earlier, throughout their marriage, Mr Pain often accused Ms Bush of having affairs with other men. Soon after their wedding, he accused her of sleeping with his best man. His accusations, and the hostility that followed, often led to short separations. During one of those separations, Ms Bush did form a relationship with another man, but that appeared not to give rise to any difficulty after she returned to live with Mr Pain. Nevertheless, it seems that Mr Pain's inclination to suspicion continued. He set up CCTV cameras inside and outside his home at Neilborough.

18 Further, as also indicated earlier, by 2014, Mr Pain had come to believe, wrongly, that Ms Bush was having an affair with Mr Paris. Ms Bush said that, every time Mr Paris and her daughter came to their house, or every time she went and visited them, Mr Pain would accuse her of having an affair with Mr Paris. This caused another short separation in April 2014. On this occasion, Ms Bush stayed with her daughter and her family in Raywood.

19 During that separation, on 15 April 2014, Ms Lambert complained to Mr Pain, in a text message, about his unfounded belief about Mr Paris and her mother. She said:

I have no idea why you keep blaming Dave for sleeping with mum and what's this I hear that you wish mum died after her op. [Ms Bush had had an operation to remove a cyst.] That is very low. After what you said here at the back saying you will never react like this again and saying you have the problem. Now you blame mum again and again. I will say please seek help as this is just bullshit, dad. Mum won't be coming back because you have pushed her too far this time and I believe that you have something to say to Dave. Be a man and speak to him because he is not happy with you and you know he would have done anything for you.

20 Mr Pain made several threats to others to harm Mr Paris in the period leading up to the shooting. For example, in May 2014, Mr Pain told a neighbour that he wanted to 'kneecap' Mr Paris. He also told his mother that he was 'going to go around to [Mr Paris's] house and belt him'. On Tuesday 3 June, a woman saw Mr Pain and Ms Bush together in the supermarket. They seemed happy. On the Friday 6 June, however, the same woman spoke to Mr Pain again in the supermarket. He asked whether she had seen 'Dave' (viz, Mr Paris). He appeared to be angry and said that he was 'going to get Dave because he'd upset [his wife] Tracy for the last time'. Later that day, Mr Pain told Ms Bush that, if he found out she was having an affair with Mr Paris, he would 'smash his hands up'.

21 Finally, Ms Bush had had enough. She resolved to leave Mr Pain permanently. On the following Monday 9 June, she left Neilborough and drove to her daughter and Mr Paris's home in nearby Raywood, so that she could stay the night with them.

22 Later on the Monday, from about 4:19 p.m. until 9:01 p.m., Mr Pain and Ms Bush exchanged abusive text messages. At one point, however, Mr Pain told his wife that she did not know how much he loved her. She responded by saying that they were 'over for good'. She said she would send someone to collect her things.

23 During the evening, Mr Pain spoke on the telephone to a friend Robert Logue. He told Mr Logue that he and Ms Bush had separated and that she was 'seeing' Mr Paris. Mr Logue told him that he found that highly unlikely to be true. He said that Mr Pain seemed calm and resigned to his wife leaving him. Mr Logue told him not to do anything silly, and Mr Paris said he would not.

The movements/actions of Mr Pain and others on the day of the shooting

24 The next day, Tuesday 10 June, the texting between Mr Pain and Ms Bush resumed at 5:25 a.m. and continued until 12:26 p.m. Mr Pain called his wife a 'slut' and suggested that Mr Paris should buy her a car. Ms Bush said she wanted a divorce.

25 At about 1:26 p.m., Mr Pain rang Lynne Alves, a long-term friend. He told her that his 'head wasn't in a good space'. As her son had just died, Ms Alves was unable to travel (from Gippsland) to see Mr Pain, so she suggested he come and see her. He said he would ring her back. At 5:29 p.m., he rang and told her that he 'wasn't handling things', but did not tell her why. To her, he 'sounded very depressed and ... as if the world had dropped out', whereas he was usually 'chirpy' and 'happy-go-lucky'.

26 At around 2:30 p.m. that day, Mr Romey went to Mr Paris's home in Raywood. Ms Lambert, her son Laine and Ms Bush were there too. Mr Romey was an old friend of Mr Paris. He had come for dinner and to have some tattooing work done by Mr Paris and Ms Lambert. Mr Paris arrived home from work about an hour later.

27 Between 5:30 and 6:00 p.m., Mr Pain tried to ring, but failed to get through to, his cousin, his mother and his sister.

28 Up until about 6:30 p.m., CCTV footage from his Neilborough home showed Mr Pain gathering together a Yildiz double-barrelled shotgun and a Savage .17 calibre rifle (with a magazine attached) on the kitchen bench. He was also drinking beer. It was admitted at trial that Mr Pain frequently drank six to ten cans of mid-strength beer per day. The evidence suggested he may have had a good deal more on this particular day. He left his house at 6:30 p.m. carrying the shotgun in his hands and with the rifle slung over his shoulder. He got into his utility and, after pausing for a period, drove off.

29 At 7:10 p.m., Mr Pain sent Mr Paris a text message which read, 'I'm on my way, Davey boy.' It is not known whether Mr Paris ever saw or was aware of this message, as he was busy preparing dinner in his Raywood kitchen around this time, while Ms Lambert, Ms Bush and Mr Romey were elsewhere in the house or sitting outside on the back porch.

30 Not all aspects of the next series of events were so clear. Some of the facts alleged were disputed and the eye-witness accounts involved various inconsistencies. In substance, however, subject to some inconsequential inconsistencies and subject also to some qualifications I shall make later, I am satisfied that the following events occurred.

31 Ms Lambert believed she was sitting outside on the back porch with Mr Romey and her mother. She heard what she thought was Mr Pain's utility coming up the driveway. She told the others to go inside and went to the side gate area and onto the driveway. As Mr Pain drove past, Ms Lambert yelled at him, 'Go away.' He kept driving along the driveway, well past the house, to a turning area and did a U-turn. As Ms Lambert went back to the gate, she saw her partner Mr Paris there. She told him they should go inside, but he ignored her and went through the gate. He was situated behind a red Laser that was parked parallel to the driveway on the side nearest to, and to the left of, the gate, and pointing towards the turning area.

32 Ms Lambert went inside the house, where she met Mr Romey. He asked what he could do. She said, 'Go out with Dave.' He went out the back door. She saw her mother and told her to ring the police. While she was inside, she heard a shotgun blast. She ran to the back door and, from the back step, saw her partner fall in an awkward manner, near the back of the red Laser. Mr Romey was standing next to some stoves outside the back door, just in front of her. She could see the utility across from her partner. It was stationary at that point. It then moved forward.

33 Mr Romey's account is a little different, but many of the important aspects of what he observed are much the same. He believed he was inside the house, as were Mr Paris (in the kitchen) and Laine (in the lounge), when he heard either Ms Bush or Ms Lambert, who were on the back porch, yell out, 'Max is here.' He then told Mr Paris, 'Apparently, Max is here.' Mr Paris then turned and rushed past him to the back door. Ms Bush came inside. Mr Romey could hear yelling and screaming outside but could not make out what was said. Ms Lambert came inside at some point. Mr Romey asked Ms Bush, 'Do you want me in or out?' She said, 'Out,' so he went to the back door.

34 While at the back door, he saw Mr Paris leaning on the back of the red Laser and saying, 'Fuck off.' He heard a loud 'bang'. He then heard Mr Paris, who had his back to him, say, 'I've been shot.' He also saw the right-hand front mudguard of a white car, which was stationary. Then, within a few seconds, he saw the white vehicle drive forward towards the main road. Mr Romey began to walk towards Mr Paris, and was almost at the gate, when he noticed a red tail-light to his right and a silhouette of a person in the same direction some two-thirds of the way down the driveway. At that point, Mr Paris was wavering or swaying to the right.

35 As I indicated earlier, in what I regard as an act of great courage, Mr Romey then walked towards the silhouette, saying, 'Stop, don't do it.' He then recognized the person as Mr Pain. He realized he was holding a gun across his pelvis, with each of his hands under it. He drove his fingers into Mr Pain's shoulders and said, 'Just get back in your car. I will sort it out.' (In evidence, he said he was not sure what he was going to 'sort out', but he said it anyway.) He noticed Mr Pain's expression change. Mr Pain said nothing, turned, got back into his car and drove off.

36 Mr Romey then walked back towards Mr Paris, who was lying on his side, and rang triple-zero. Ms Bush and Ms Lambert were trying to assist him. Mr Romey handed his phone to Ms Bush and retrieved a towel from the red Laser (which was his sister's car) to use to stem the bleeding from Mr Paris's stomach area. He also tried to perform CPR under instruction from the triple-zero operator.

37 Ms Bush gave a similar account as to being outside with the others when she heard her daughter say that Mr Pain was here; of being told to go inside; of being told to ring the police; and of her daughter going outside when she heard a 'bang'. Initially, Ms Bush stayed inside and rang police. Later, she went outside to help with Mr Paris. Ms Bush was not an eye-witness to the shooting.

38 Eventually, ambulance officers arrived and took over the attempts at resuscitation. Sadly, however, they were unable to find a pulse and Mr Paris could not be revived. He died at the scene.

39 After he left Mr Paris's property, at 7:20 p.m., Mr Pain tried to contact his brother-in-law Leslie Bush. The call was not answered.

40 At 7:24 p.m., Mr Pain rang his mother Aileen Pain and said, 'I'm going to jail. I've just shot Dave.' When she asked how bad it was, Mr Pain said, 'I don't know, he just fell to the ground.' Mrs Pain said to her son, 'As soon as you get home, ring the police and hand yourself in.' He said, 'Yes, I will.'

41 At 7:32 p.m., Leslie Bush responded to the earlier text message. He assumed Mr Pain and his sister Tracy had been fighting again. At 7:33 p.m., Mr Pain rang Mr Bush and said, 'I did it.' Mr Bush asked, 'Did what?' Mr Pain said, 'Shot Dave.' He said that he shot him in the stomach with a shotgun in the driveway of his home. He said that he wanted to leave his guns to Mr Bush.

42 At 7:36 p.m., Mr Pain rang triple-zero and advised the operator that he had shot his 'so called son-in-law' at Raywood. He asked that the police attend his Neilborough residence so he could surrender himself. He also said that he had used a 12-gauge shotgun and would disarm the weapon prior to the arrival of police.

43 At 7:49 p.m., Mr Pain contacted his neighbour Wayne Kenny and said, 'I've just shot Dave.' Mr Pain said that he had called the police and they were on the way. He also asked if Mr Kenny could look after his dogs.

44 Between 7:54 p.m. and 8:25 p.m., Mr Pain spoke to his sister Helen Guerra in three separate phone calls. He said that he had 'shot Dave' and that 'he hoped that he was okay'. He also said, 'I've done a lot of stupid mistakes in my life, but this was the worst.' He said that 'he had gone there and was told to go away and he had shot him in the stomach'. He was crying and upset. He said that he had unloaded the guns, as police instructed. Ms Guerra's husband overheard some of what was said, including Mr Pain saying, 'he mucked up or he'd mucked up properly this time'. At this time, Mr Pain was out the front of his house awaiting the arrival of police. During one of these calls, Ms Guerra passed the phone to her husband who gave Mr Pain a phone number for Sergeant Ben O'Regan of the Maryborough Police Station.

45 At 8:28 p.m., Mr Pain telephoned Sgt O'Regan. He was upset and wanted to surrender. He said that he had 'done the wrong thing' and that he had 'shot' Mr Pain. He indicated that the gun was safe and on the kitchen bench. Sgt O'Regan, who had been tasked to organize a surrender plan, instructed Mr Pain to strip to his underwear and walk to Jackson Lane before lying face down on the roadway to wait for police. Mr Pain agreed to this.

46 At about 8:40 p.m., Mr Pain was arrested by police without incident. He was conveyed to the Bendigo Police Station and ultimately charged with murder.

47 Dr Matthew Lynch, a pathologist, subsequently performed an autopsy on Mr Paris. As indicated earlier, the shot and the wad had left a large hole in Mr Paris's abdomen and caused serious internal damage, including to his abdominal aorta. The main wound was about 40 millimetres in diameter and was surrounded by pellet marks to a spread of about 70 by 54 millimetres, depending on which pellet marks were included. A number of shotgun pellets and the wad were recovered from within Mr Paris's abdomen and later examined by a ballistics expert. The trajectory of the wound was slightly left-to-right and slightly downwards. Dr Lynch concluded that Mr Paris died as a result of a gunshot wound to the abdomen.

48 Police conducted examinations of the scene of the shooting and at Mr Pain's premises.

49 At the Raywood property, police did not find any shotgun pellets. Nor did they find any damage to the Ford Laser.

50 The informant Detective Leading Senior Constable Leigh Smyth took various measurements in an attempt at reconstruction. The distance between where Mr Paris's body was found and the driver side of a police car, when positioned directly across to the other side of the driveway as far as is possible without hitting trees, was six-and-half metres. The equivalent measurement was just under three metres when the car was positioned in the middle of the driveway. Given the angles involved, if the car were positioned a little more towards the U-turn area, the range quickly could become much greater. This possibility was consistent with Dr Lynch's evidence of the angle of the wound on Mr Paris's body, depending on how far he might have turned his body towards an oncoming car before he was shot.

51 At the Neilborough property, police recovered the shotgun, the rifle and ammunition. The shotgun was empty. Sample 12-gauge wads and reloaded shotgun cartridge casings were also collected, along with the recorder box connected to the CCTV system. Police also took gunshot residue samples from the Ford utility.

52 Leading Senior Constable Darren Watson gave ballistics evidence.

53 He found that the trigger-pulls for both barrels of the shotgun were within normal limits.

54 In his opinion, the wad removed from Mr Paris's body was a 12-gauge type consistent with the reloaded cartridges found at Mr Pain's home. Further, the pellets removed from Mr Paris's body approximated the size and weight of No 2 (or perhaps No 3) shot. The reloaded cartridges found at Mr Pain's home contained similar shot.

55 LSC Watson conducted a series of test-firings with the shotgun. In his opinion, those results, the measurements of the major wound and the spread of the surrounding pellet marks on Mr Paris's skin suggested that the shotgun was fired at a range of about two-and-a-half metres from the muzzle.

56 He also conceded, however, that the interpretation of the spread of surrounding pellet marks, on both a wound and a test-firing, involves a subjective element and that reasonable minds could arrive at substantially different estimations of critical dimensions. This, in turn, could result in an estimate of a much greater or lesser range of firing. He gave the example that, despite the fact that one set of test-firing was done from a (known) range of nine metres, a reasonable interpretation of the resulting pattern of shot would be that it was fired from four metres. Thus, there was substantial room for error in the opinion he gave.

57 Mr Pain did not give or call any evidence at trial.

58 There was, however, evidence that, when at the police station after his arrest, he told police that he 'could have been drugged before it all happened because I can't remember it all and I had been drinking a lot'. He also told police that 'I feel not right. Wasn't with it. I was full of alcohol. I'd been drinking for two days alone'.

59 I turn now to the main disputed sentencing facts. In my view, all of the following findings are consistent with the jury's verdict.

60 First, the prosecution case was that the shot was fired from a range of about two-and-a-half metres. Reliance was placed on the evidence of LSC Watson, Detective Smyth and Dr Lynch and, less directly, the evidence of Ms Lambert and Mr Romey. The defence disputed this estimate. In my view, it is difficult to be precise about the range from which the gun was fired. I found LSC Watson's opinion unconvincing, at least in part. In any event, as I have said, he conceded that reasonable experts can differ markedly on their assessment of the spread of shot on a wound or a test-fire result, which in turn can affect the estimate of range quite substantially. Having considered all of the evidence, all I can say is that I am satisfied, to the criminal standard, that the range of firing was in the order of two-and-a-half to ten metres. I cannot, however, exclude the reasonable possibility that the shot was fired from a range of up to ten metres.

61 Secondly, a related question is whether the utility was moving when the shot was fired. I accept that Mr Romey believed that the vehicle was stationary. While I found Mr Romey to be an honest and impressive witness, he did admit to difficulties with his vision and appeared to be uncertain about some aspects of his account. As I understood Ms Lambert's evidence, while she noticed the car stationary when Mr Paris fell, she did not see - and could not have seen - the car at the time of the shooting. Ms Lambert, I think, was also honest, but admitted to factors that suggested a level of unreliability. The other difficulty, in any event, is that it was dark, the events were shocking and it is quite easy to assume or believe certain things when they are not quite right. Having considered all of the evidence closely, I cannot exclude the reasonable possibility that the shot was fired as Mr Pain slowed nearly to a stop. This adds to my view that it is reasonably possible that he fired from a range of up to ten metres.

62 Thirdly, Mr Desmond, who appeared for Mr Pain, submitted that I should not be satisfied that his client planned to shoot or confront Mr Paris when he left his home in Neilborough. Rather, he submitted, it was possible that, as a farmer, Mr Pain was, for example, heading off rabbit or fox shooting and that he determined later to head to Mr Paris's home and confront him. I am satisfied, beyond reasonable doubt, that Mr Pain left his premises with the intention of at least confronting Mr Paris and at least in a threatening manner. In my respectful opinion, the rabbit or fox shooting hypothesis is fanciful. I am not satisfied, however, that he intended to shoot or kill Mr Paris at the time he left his home.

63 The foregoing findings also impact on, and are affected in part by, my view of the fourth and principal series of matters in dispute at trial - namely whether, when he deliberately fired the gun, Mr Pain intended to shoot Mr Paris and, if so, where on his person he intended to strike him and whether he had murderous intent - i.e. an intention to kill or at least to cause really serious injury.

64 Plainly, a number of matters are capable of pointing to an intentional shooting of Mr Paris in a vital area with an intention to kill. They include the following:

d) arming himself with a loaded shotgun and a rifle;

e) on any view, even at ten metres, the relatively close range from which the shot was fired;

g) his behaviour in getting out of the car down the driveway with the shotgun in hand; and

65 Ms Taylor QC, who appeared for the Director, urged some or all of these and other matters upon the jury and me in support of the conclusion that Mr Pain did indeed have an intention to kill at the crucial time.

66 Mr Desmond, on the other hand, submitted that, while a finding of an intention to kill was open on the evidence, I should not reach that conclusion, for various reasons. He pointed to a number of matters that he submitted were consistent with the reasonable possibility that Mr Pain did not intend to kill Mr Paris but that he did intend to shoot him, albeit it is unclear precisely where, and that nevertheless his intention was no more than to cause him really serious injury. Those matters include the following:

a) the fact that, while Mr Pain had threatened harm, he had not threatened to kill Mr Paris;

b) that, while Mr Pain was aware that he had shot Mr Paris in the stomach, he did not get out of the car and fire a second shot from the shotgun, or a further shot or shots from the rifle, to make sure that he killed him;

c) the fact that he fired from the car in the first place, and the difficulties that that might entail;

d) the difficulty in being accurate when firing from a car window, and at a distance of up to ten metres, possibly while still driving the utility;

e) the poor lighting, which is likely to have made Mr Paris appear as a silhouette to Mr Pain, at best;

f) Mr Pain's state of intoxication, which may have affected his judgment;

g) his subsequent expression of concern that Mr Paris was okay;

h) his admission to others that he had shot Mr Paris in the stomach but without any admission that he meant to do so or that he intended to kill him; and

67 In the end, while it is a close-run thing, it is the latter combination of factors that causes me to have a reasonable doubt that Mr Pain intended to kill Mr Paris when he shot him. Thus, instead, I shall sentence on the basis, consistently with the jury's verdict, that he intended to shoot Mr Paris at least somewhere on his person and to cause him at least really serious injury.

68 While it is irrelevant to my findings in this case, I note that the jury asked questions during their deliberations that might be taken as suggesting that one or more doubted an intention to kill and were considering an intention to cause really serious injury instead.

69 Finally, I am not satisfied that Mr Pain formed the intention to cause really serious injury any earlier than when he drove back towards the house and saw Mr Paris, who said something to him, such as 'Fuck off'. Rather, I am satisfied that his anger at Mr Paris, based on his (false) belief that he had been having an affair with his wife, caused him to shoot him then and there with the intention of inflicting really serious injury. Prior to that time, I cannot exclude the reasonable possibility that he had only an ill-formed plan to confront Mr Paris, albeit at least with a threat of violence.

71 Nine such statements were filed with the Court, from six different victims. Some of the statements were read aloud by their authors or Ms Taylor. Four of the authors made two statements - one at the time of the initial plea of guilty and another following the verdict in this trial. The statements were made by Mr Paris's partner Ms Lambert; his son Laine; his mother Deborah Paris; his grandmother Gloria Paris; his mother-in-law Ms Bush; and his friend Mr Romey.

72 All of the authors, in one way or another, described the terrible sadness, anger and loss they feel at the untimely and violent death of Mr Paris. Ms Lambert has lost her life partner; Laine has lost his father; and Mrs Paris has lost her only child. All are finding it difficult to cope with their loss.

73 Mrs Paris observed how sad it must be for Mr Pain that his mother has since died. But she went on to say that, in a sense, she envies Mrs Pain, for she is free of the torment of having her son lost to her. When a child pre-deceases his or her parents, it reverses the natural order of things. Such a death is all the more unbearable when the child is taken as a result of criminal behaviour - and, in this case, as a result of a murder, no less.

74 The victim impact statements are powerful and moving documents. I have had regard to their contents in considering sentence.

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

76 Murder is the most serious offence in the criminal calendar. In this State, murder is (mostly) a common law offence[2] the maximum penalty for which is set by statute at imprisonment for life.[3] The offence can be committed with or without motive and with an intention to kill, an intention to cause really serious injury, recklessness as to causing death or recklessness as to causing really serious injury. As I have intimated, this case of murder was put by the Crown to the jury on the basis of an intention to kill or an intention to cause really serious injury.

77 Ms Taylor submitted that the objective gravity of Mr Pain's offence was 'high' and that his culpability was 'very high'. Mr Desmond accepted that the offence was serious. I accept both submissions. Mr Desmond also submitted, however, that this was an example of murder in the low to middle range of gravity. In so far as such labels matter, and for reasons that follow, I consider that this particular offence falls towards the upper end of the middle range of gravity of murder.

78 First, every murder, by definition, involves the loss of a human life in grave circumstances. Mr Paris was a relatively young man who left behind his son, his partner, his mother and others. I have already referred to the horrible sense of loss and sadness his loved ones have suffered and will continue to suffer.

79 Secondly, Mr Paris's last moments alive must have been terrifying. As well as the shock of being shot in the abdomen, Mr Paris must have been in great distress at the sight of blood pumping from his wound. Further, he must have felt utterly helpless, despite the valiant attempts of his family and paramedics to save him.

80 Thirdly, however, consistently with the findings I have made, I am not satisfied that the offence was planned or premeditated.

81 That said, fourthly, I am satisfied that Mr Pain was angry at Mr Paris over his (false) belief and that he went to his home, armed with two guns, and with an ill-formed plan to confront him, at least with a threat of violence. There is no place for violence of that nature as a means of resolving perceived marital disputes.

82 Fifthly, Mr Pain used a weapon that was likely to kill if Mr Paris was struck in a vital area, which is precisely what occurred.

83 Sixthly, a related point that, in a sense, tends in the other direction is that the violence implicit in the shooting was limited to a single shot, albeit with the most dire of consequences. As grave as it was, this was not a frenzied, repeated, relentless or brutal attack of the type seen in many other murders.

84 Seventhly, the murder was committed in the presence of others - namely, Mr Romey and Ms Lambert, while Mr Paris's son and mother-in-law were inside the house. While there is no evidence that Mr Pain knew that others directly witnessed the killing, he must be taken to be aware of the fact that Mr Paris's family would witness the horrible aftermath that comes with being shot to any part of the body, including the stomach, whether or not it is thought or intended that death would follow.

85 Eighthly, as I have said, I am not satisfied of an intention to kill but of an intention to cause really serious injury. In some cases, this distinction will make little or no difference to the gravity of the offence. In others, it may be of some considerable significance. In my view, while he still held a gravely culpable state of mind, that I am not satisfied that he intended to extinguish Mr Paris's life, in my view, does make this a less serious example of murder than otherwise. It is one thing to intend to cause a person really serious injury; it is another, and more morally culpable, to intend to end another's life.

86 Finally, I am satisfied that, soon after the shooting, Mr Pain regained his senses and regretted his actions. Thus his calls to others, including the police, admitting his actions and expressing a hope that Mr Paris would be okay.

87 Thus, in all the circumstances, I regard this is a serious example of murder, one falling towards the upper end of the middle range of gravity.

88 I turn now to the factors in mitigation on which Mr Pain is entitled to rely.

89 Before going to those factors, I should add that his personal history is set out in detail in the psychological report of Patrick Newton and the neuropsychological report of Martin Jackson. I shall not repeat all of that detail in these reasons, although I will be referring to aspects of these reports shortly.

90 The first factor in mitigation, despite his plea of not guilty to murder, is that, in my view, Mr Pain has some remorse for the terrible loss that he has caused. That remorse is, however, limited.

91 There are several reasons that, in combination, bring me to those conclusions. First, soon after the shooting, Mr Pain admitted that he had shot Mr Paris, expressed a hope that he was 'okay' and handed himself in to the authorities, recognizing that he had to be gaoled for what he had done. Secondly, Mr Desmond, in his final address, invited the jury to find Mr Pain guilty of manslaughter. Thirdly, it is apparent that Mr Pain's emotional state after the killing suggested that he was distressed at what he had done. Fourthly, a reference from a former partner asserts that Mr Pain is 'extremely sorry and very remorseful for his actions'. Fifthly, Mr Pain's sister Barbara Thompson offers that her brother 'deeply regrets his actions ... which cost David Paris his life'. Sixthly, Mr Pain also expressed remorse to the psychologist Mr Newton, but those remarks were made at a time when Mr Pain was pleading guilty to murder. Seventhly, Mr Pain has written a letter of apology to the family of Mr Paris. He writes:

To the family of David Cameron Paris. I would like to apologize for the loss of your grandson, son, partner, father and friend.

I am so sorry for taking his life. It was an accident, and it didn't happen the way it was said.

I would like to apologize to the judge and the people in the Court room for the inconvenience I have caused.

All because of my stupidity David is now not with us.

92 That said, the limitations on Mr Pain's remorse are apparent. First, he did not plead guilty to murder. Secondly, in his letter, he maintains that 'taking his life ... was an accident'. While an intention to cause really serious injury that results in death is, in a sense, an accidental death, in light of his plea of not guilty, I take this assertion as a denial of the mental element of murder. Thirdly, the reference from the former partner asserts that Mr Pain intended to 'warn or scare the victim and it went horribly wrong'. While that is consistent with his initial intentions, it is not consistent with the finding of murderous intent implicit in the jury's verdict. Thus, Mr Pain's apparent remorse, his decency in apologizing to Mr Paris's family and his preparedness to take (partial) responsibility for his actions are offset somewhat by these considerations.

93 The second factor in mitigation concerns the way in which Mr Pain's trial was conducted.

94 In Karam v The Queen,[4] the Court of Appeal (Weinberg, Priest and Beach JJA) said this:

In our view, the authorities show that the co-operation by the accused with the Crown and the facilitation (shortening) of the conduct of the trial may be a matter taken into account upon sentencing even when remorse has not been shown. The utilitarian value of such conduct, in appropriate circumstances, is a matter that might mitigate a sentence that would otherwise be imposed. That is not to say that there should always be a reduction in sentence. Each case will depend upon its own circumstances. In some cases, where admissions have been made, it might be plain that such admissions were made for good strategic reasons. In such circumstances, it may be that it is illusory to talk about a utilitarian benefit where none really exists because no rational person would have prolonged his or her trial by putting in issue matters that the Crown was plainly in a position to prove.

In considering any amelioration of sentence that might be afforded for an accused's co-operation or admissions made during the course of a trial, care needs to be taken to ensure that other accused who might not have made admissions or who might have more vigorously contested the Crown case are not penalised for exercising their legal rights to defend themselves.

95 Mr Pain's trial was conducted in a way that suggested an acceptance of responsibility for the death of Mr Paris, at least to some extent. Further, responsibly, the defence co-operated with the prosecution to confine the issues and shorten the trial. As I said earlier, Mr Pain's counsel, in his final address, invited the jury to find him guilty of manslaughter. Further, he even admitted, through counsel, that he deliberately - not accidentally - fired the gun. Thus, in practical terms, only a few very narrow issues fell for the jury's consideration. Yet, Mr Pain could well have chosen to dispute a deliberate and voluntary firing of the gun, particularly when it may have been fired from a moving car across a door window sill. In the result, while the Crown could have proved an absence of accidental discharge of the gun, Mr Pain's approach at least narrowed the issues to be considered by the jury.

96 It follows, in my view, that he should be given at least some credit - albeit modest - for the utilitarian value of his approach to the trial and the acceptance of responsibility (for manslaughter) that it implies.

Mr Pain's mental state at the time of the offence

97 A third matter relied on by Mr Desmond in mitigation is that Mr Pain had delusional beliefs, amounting to a delusional disorder, about his wife's infidelity. Mr Desmond submitted that, given such delusions were operative at the time of his offence, his moral culpability should be regarded as reduced. He also submitted that the effects of alcohol and cannabis (the latter is mentioned in Mr Newton's report), and his limited cognitive functioning (as detailed in the report of Mr Jackson), would have dulled his judgment.

98 I note that Mr Newton does diagnose Mr Pain with a delusional disorder about Ms Bush's perceived infidelity. He also is of the opinion that Mr Pain has little insight into his condition and that it is likely that he had similar beliefs about two other intimate partners.

99 In my view, even if there is to be any reduction in either moral culpability or the need for deterrence by reason of Mr Pain's delusional thinking about his wife's fidelity at the time of the offence, those considerations are offset by the risk that such thinking presents to others who might be thought to be the object of any future intimate partner's attentions. While the length of the sentence that must be imposed will mean that Mr Pain will be a good deal older when he is ultimately released from prison, and perhaps less likely to have such delusional thoughts, or at least less likely to act on such thoughts, at that time, on the evidence before me, I just cannot be satisfied that that is so. Thus, I reject that, at least in nett terms, Mr Pain's delusional thinking provides any mitigation of sentence.

100 Further, I do not accept that Mr Pain's drunkenness, his possibly being affected by cannabis or his limited cognitive functioning provides any mitigation in the circumstances. While his drunkenness or drug-affectedness may have affected his judgment in the way in which the gun was fired, he still made a clear decision to shoot Mr Paris and cause him at least really serious injury. As for his cognitive abilities, in many cases, including this one, a reduced cognitive ability would not make one iota of difference to moral culpability.

101 The fourth matter in mitigation urged concerns Mr Pain's prospects of rehabilitation. Ms Taylor accepted, as do I, that Mr Pain has reasonable prospects of rehabilitation. I do not find that those prospects are good or excellent, but there are some positive signs to be balanced against factors pointing towards lesser prospects.

102 While Mr Pain does have some prior convictions, they are mostly stale and comparatively modest in nature. From 1979 to 1989, Mr Pain incurred convictions for driving offences; indecent language; offensive behaviour; possessing, using and cultivating cannabis; burglary and criminal damage; and failing to secure firearms properly. These offences resulted in fines or bonds. In 2000 and 2003, he was convicted of cultivating and using cannabis (twice) and possessing ammunition without a licence. (He was licensed to have firearms at the time of the murder.)

103 His only prior appearance for an offence of violence was incurred in 1999, when he was convicted of recklessly causing injury. This involved an assault on a former partner. That, of course, is of some concern, although it is a relatively old offence and, it seems, involved nothing like the gravity of the offence being considered now.

104 Further, despite the assault, that former partner provided a reference for Mr Pain. She described their eleven-year relationship as 'predominantly loving, healthy [and] passionate', albeit 'volatile at times'. She also described him as caring and kind, a person who would do almost anything for anyone. Numerous other references tendered also spoke of Mr Pain's good qualities, such as his love for animals, a preparedness to help others and his kindness. I accept those references.

105 Mr Desmond also tendered several certificates showing that Mr Pain had done courses in prison in an attempt to better himself.

106 It is also pleasing that he has returned negative screens for drugs while in prison.

107 Thus, despite the seriousness of the offence, I am satisfied that Mr Pain does have reasonable prospects of rehabilitation.

108 Further, it is, I think, significant that, while I do not know whether he will be cured of his delusional disorder by the time of his release, nevertheless, given the order of sentence that must be imposed and his age, he will be a much older man - well into the usual retirement age at that time. I hold at least a hope - if not satisfaction - that, by that time, he will be less inclined to unfounded suspicion and violence.

109 The final matter in mitigation is that Mr Pain's time in gaol has been, and is likely to continue to be, more onerous than it is for other persons without the disabilities of the type that resulted from the motorcycle accident. I think it is reasonable to expect that his limited mobility, the pain he suffers and the ongoing treatment that he will need will continue to make his time in custody particularly burdensome.

110 However, while the documents placed before the Court may suggest some tardiness in treatment at times, I do not accept that it is probable that prison will make Mr Pain's disability worse. I do accept, however, that, as Mr Pain ages, it is likely that the burden of his imprisonment will increase, not because prison will make his afflictions worse, but because such afflictions as he has are likely to become more of a burden over time, just as they would were he not in prison.

111 Another factor relevant to the hardship of Mr Pain's imprisonment is the fact that he endured lockdowns following the prison riots, for which he was not responsible. It seems he was also kept in more restrictive conditions at some stage because of concerns for his safety. While the material filed only recently on behalf of the Crown suggests that the periods of lockdown or restrictive conditions might not be as long or as onerous as claimed by the defence, I am prepared to accept that Mr Pain has endured some periods of additional hardship as a result of lockdowns or restrictive conditions. This, in a modest way, also goes in mitigation of his sentence.

112 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

113 In my view, general deterrence, denunciation and just punishment have a significant role to play in the circumstances of this case. While the need for just punishment in particular is moderated on account of the hardship imprisonment has held and will continue to hold for Mr Pain, nevertheless, the community should understand that behaviour of the type engaged in by him is denounced by the courts and will result in punishment that reflects that a life has been taken in murderous circumstances and that the lives of Mr Paris's loved ones have been marred forever.

114 While specific deterrence must be given weight too, I have given it less weight than otherwise on account of Mr Pain's (partial) acceptance of responsibility, his remorse (albeit limited), his limited criminal history, his good character traits and his reasonable prospects of rehabilitation.

115 Rehabilitation remains an important sentencing purpose. Given that the weight I have given to general deterrence, denunciation, just punishment and specific deterrence will produce a sentence that protects the community for a long period, I can see no need for any weight to be given to protection of the community as a separate or additional sentencing purpose. If it has any role to play in this case, protection of the community will be better served by the fixing of a sentence that maximizes Mr Pain's chances of rehabilitation, especially given that he must be returned to the community at the expiry of his sentence in any event.

116 With these thoughts in mind, I have sought also to fix a substantial potential parole period. Hopefully, this will give Mr Pain the incentive to work towards reform and release on parole at the earliest possible stage. Further, should he be released on parole at that time, he will have a long period of supervision in the community. Both of these considerations should redound to the benefit of Mr Pain and the wider community.

117 Section 5(3) of the Sentencing Act 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. This provision reflects the common law principle of parsimony. I have applied this principle when fixing sentence.

118 In so far as I can determine them, I have had regard to current sentencing practices for murder.

119 Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years' imprisonment in 2009-10 to about 22 years' imprisonment in 2013-14; the median sentence was 20 years' imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[5]

120 More recent statistics show that, for the period from 2011-12 to 2015-16, the average non-life sentence for murder ranged from about 19-and-a-half years' imprisonment in 2012-13 to about 22 years and three months' imprisonment in 2015-16; the median sentence was still 20 years' imprisonment, as was the mode; and the median non-parole period was a little higher, at 17 years, as was the mode.[6]

121 Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the offence, whether there were significant aggravating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

122 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. With this in mind, counsel referred me to some recent cases involving sentences for murder.[7] While none of them struck me as directly comparable, they do give some guidance as well.

123 I could spend more time in these reasons comparing many cases. And, indeed, I have had regard to my own survey of the sentences imposed for murder in recent years. But, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied. Nevertheless, I have found the sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for murder, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

124 In the end, however, as is always the case, because of the limits of the process of comparison, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Pain's offence of murder.

127 Balancing all considerations as best I can, for the murder of David Cameron Paris, Maxwell John Pain is convicted and sentenced to 23 years' imprisonment with a non-parole period of 18 years.

128 I declare that, including today, 1,157 days of pre-sentence detention are to be reckoned as already served under the sentence.

129 This sentence and the declaration I have made, putting aside emergency management days or the like, should mean that Mr Pain will be over 70 before he is eligible to apply for parole, and over 75 when his head sentence expires.

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[1] See R v Pain [2016] VSC 532.

[2] The exception is that what was once the felony-murder rule is now put on a statutory footing - see s 3A of the Crimes Act 1958 (Vic) - which was inapplicable in this case.

[3] See s 3 of the Crimes Act 1958 (Vic).

[4] Karam v the Queen [2015] VSCA 50 at [156]- [157] (footnotes omitted).

[5] Sentencing Advisory Council, Sentencing Snapshot (No 171), May 2015, pp 2-4.

[6] Sentencing Advisory Council, Sentencing Snapshot (No 198), April 2017, pp 3-5.

[7] The cases included: R v Spence [2015] VSC 321 (27/22); R v Semaan [2016] VSC 667 (22/18); R v McDermott [2016] VSC 489 (25/20).