The Queen v Parry [2016] VSC 685

2 In relation to the circumstances of the murder, much of what happened is not in dispute. Through your counsel, you accepted the summary of facts given by the prosecution at your plea hearing. I will set out an abbreviated version of that summary.

3 On Thursday 25 June 2015, you contacted police and said that your house in Bacchus Marsh had been burgled and that some of your property had been stolen. In your record of interview for the current offence, you said that 'heaps of stuff' was stolen in that burglary, including a couple of televisions, a couple of laptops, and an IPad.[1]

4 You believed that Coulson was responsible for the burglary and theft but you didn't have hard evidence.[2]

5 On Sunday 5 July 2015, you texted Bernadette Lees, one of Coulson's sisters, trying to find out his whereabouts. You were told he was at an address in Werribee. You then sent your then girlfriend, Elise Mauger, the following two texts:

(At 3:24pm) Just got the address on that very helpful guy that did the work on my place while I was at work two weeks ago. So I'm popping over to say "thanks"

(At 3.25pm) Getting boys together but everyone away or not answering. Can you think of anyone staunch I can take with me?

No not really [....] Edward... as much as he's a little shit he can rumble though.

7 Mauger's reference to Edward was a reference to Edward Hewett.

8 You got in contact with Hewett who agreed to help out. He also tried to enlist others. Between 5.36pm and 6.05pm, he sent texts to a mate asking for help but his mate wisely declined the invitation.

9 At 6.23pm, you sent Hewett another text which read:

10 At about 7.40 pm, you and Hewett, and another man named Andrew Lacey, attended at the Werribee home of one Christine Slattery, Coulson's aunt. Present at that address were Coulson's mother Patricia, brother Michael, and sisters Bernadette, Brenda and Tara. You asked his mother where you could find Coulson, saying he owed you money. She told you the same address in Werribee that Bernadette had told you earlier.

11 You, Hewett and Lacey then drove to Coulson's address, arriving there about 8pm. I will now quote from the agreed prosecution summary as to what happened next.

[You] entered the house and located the bedroom where [you] found both Coulson and [his girlfriend] Ashleigh Taylor asleep in the bed. [You] had with [you] a black aluminium bat. At first [you] punched Coulson to the face. Taylor woke to a 'tinging' sound and saw two males in the bedroom both wearing dark clothing with hoodies pulled down over their faces. Taylor saw [you] striking Coulson with the baseball bat. Taylor saw the second male standing behind [you] , in the doorway. A knife was produced. [You] stabbed Coulson with a knife several times. Taylor saw [you] lift Coulson out of bed, and Coulson then dropped to the floor. Taylor screamed at them "What the fuck" and jumped up out of the bed, throwing off the doona. The men ran off, with [you] carrying a knife with [you]

12 You left your baseball bat behind in the bedroom.

13 An ambulance was called. Coulson was still alive when paramedics arrived but, en route to hospital, he went into cardiac arrest and passed away at 8.32pm.

14 At 10pm, you sent another text message to your girlfriend, saying:

It didn't go down exactly as I wanted but I am home and 100% injury free.

15 On Monday 6 July 2015, an autopsy was conducted on Coulson. The pathologist found a total of 21 stab wounds to the body, including stab wounds located beneath the jaw/upper neck, left side of the chest, and lower part of the chest/upper abdomen. The cause of death was multiple incised wounds.

16 Also on 6 July 2015, homicide detectives were contacted and advised that you wished to surrender to police.

17 On 7 July 2015, you met with detectives at your solicitors office. They arrested you and, later that day, interviewed you.

18 In the course of your police interview you said this:

.....[I] walked in the house and Gary was asleep on the bed. I walked over, grabbed him, said "Where's my fucking stuff?" and he goes "Fuckin blow me, you dog" or something like that. And I cracked him and a fight broke out. He - he got out - he got up out of bed and I - I looked and he - he had a knife in his hand and , yeah, we've struggled over the knife and so I don't really know what happened. There was a struggle over the knife and then before - next thing I knew was Gary had dropped and I had the knife in my hand and I was like "Oh fuck." I didn't know - you know I didn't know what to do. I just - I just ran out.....[3]

19 Later in the ROI you denied deliberately stabbing Coulson:

Q. How many time do you think that you stabbed Gary

A. I don't know what I did

Q. Mm'hm

A. I said it was a struggle. I - I - I - how many time did I intentionally stab Gary. None.[4]

20 Shortly after this exchange, the Informant mentioned the fact that the autopsy report indicated Coulson had suffered multiple stab wounds. It was suggested you must have felt the knife penetrating Coulson's body. You said at A377:

I had his hand. As I said I had his wrist for the - you know, for the majority of the struggle. So as far as feeling what went where, no I didn't.

21 At the conclusion of the record of interview, you were charged with murder and have been in custody ever since.

22 I turn now to questions of fact not addressed in the agreed summary of facts.

23 Your counsel sought a finding of fact that Coulson produced the knife. It will be recalled that the agreed prosecution summary was non-committal in respect of this matter: it said merely that a knife was produced. It did not say by whom.

24 According to Coulson's girlfriend Ashleigh Taylor, Coulson usually kept a knife on him. But she also said that Coulson's knife, and her knife, had been seized by police a few weeks before.[5] She went on to say in her police statement that, 'we didn't bring the knives to Werribee because we got caught with them before we shifted [there]'.[6] She referred to Coulson just having 'a little tyre iron thing' at the relevant time. She wasn't challenged about this when she gave evidence at the committal.

25 Your counsel relied on several matters as establishing, on the balance of probabilities, that Coulson produced the knife. First, the fact that nobody said they saw you in possession of a knife before the incident. Second, what you said to others on the night soon after the incident. Third, what you said to police in your record of interview. Fourth, the fact that you had a baseball bat. Fifth, the evidence from Taylor that Coulson habitually had a knife.

26 As regards what you said to others after the assault, your counsel placed particular reliance on what you told your friend, Michael Lees, later that night. Lees, who was Coulson's brother, visited you at your home, to find out what had happened when you attended Coulson's home earlier. In Lee's second police statement, the following passages appear:

The first thing Daniel said was "Sorry Bro.. I didn't mean it". I said "what happened?" Daniel said "I bashed him and he wouldn't stay down so I stabbed him". Daniel said he might have killed him but he didn't know, there was a lot of blood. Daniel said he had hit him a few times with the bat.[7]

.........................................,

Daniel told me something similar to "your brother pulled a knife on me, I got it out of his hand, I stabbed him with it... .".[8]

......................................

When I was leaving Daniel's house he told me that Garry had produced the knife and said something similar to "I am sorry bro - I didn't mean for to go that far and I didn't mean to stab him - I just wanted to bash him, teach him a lesson and keep him down".[9]

27 Your counsel also relied on what you said to your girlfriend on the night in the text message sent at 10pm which read:

It didn't go down exactly as I wanted but I am home and 100% injury free.

28 As for Ashleigh Taylor's claim that Coulson did not have a knife on 5 July 2015, your counsel submitted that I should not give it significant weight because of Taylor's relationship with Coulson.

29 Having regard to all of the above considerations, I find, on the balance of probabilities, that Coulson produced the knife. I note that the prosecutor conceded at the plea hearing that such a finding was open to me.[10]

30 Another factual question is whether, as your counsel submitted, you attended Coulson's address not intending to seriously injure him.[11]

31 The fact that I have found that you did not take a knife with you to Coulson's home does not answer that question.

32 You were angry at Coulson because you believed he had burgled your home and stolen your property, property which you had battled to acquire since getting out of jail in late 2012.[12] You went to Coulson's home on 5 July 2015 with two other males, Hewett and Lacey. You went armed with a baseball bat. You were affected/disinhibited by ice when you barged into his bedroom. You struck him multiple times with the baseball bat.

33 I reject your counsel's submission regarding your original intent. I find beyond reasonable doubt that you went to Coulson's home intending to cause him serious injury. But I do not find that you went there with murderous intent.

34 Once you seized the knife from Coulson, however, I am satisfied, by the evidence and by your plea, that you stabbed Coulson deliberately, repeatedly and with murderous intent. As for that phrase 'murderous intent', the state of mind required for murder is either an intent to cause really serious injury or an intent to kill. Notwithstanding the location of some of the stab wounds, and the number of them, your plea was accepted by the prosecution on the basis that your intention during the knife attack was to inflict really serious injury,[13] not death, and I will sentence you on that basis.

35 I consider your offence to be a mid-range example of the offence of murder. Circumstances which place it into the mid-range include the following matters:

• You decided to take the law into your own hands, believing the victim had burgled your own home. You acted as a vigilante, with all the risks that entails.

• You went to the victim's home intending to inflict serious injury upon him and you brought a weapon with you for that purpose, a baseball bat.

• You attacked the deceased in his home, barging into his bedroom where he was sleeping beside his partner.

36 Circumstances which militate against viewing your offence as a high range example of murder include the fact that you did not go to Coulson's home with murderous intent.

37 It is not disputed that you were substance affected at the time of the killing.[14] I will say more about that later. For the moment, I will just say that it partly explains your extreme conduct but it neither aggravates or mitigates your offending. It would only be a circumstance of aggravation if there was evidence that you were aware that under the influence of drugs you would become or would probably become violent. There is no such evidence. It would only be a circumstance of mitigation if there was some reason for your drug use that was extenuating. No such reason has been identified.

39 You were born on 26 December 1978. You are 37 years old. You grew up in Epping with your parents and four siblings. You had a happy and relatively stable childhood. According to your counsel, your parents separated when you were a teenager. According to a 2012 report by Dr Cidoni, of which I will say more later, your parents separated when you were 20.[15]

40 I was told that your family remains reasonably close knit and are strongly supportive of you. I note that I received testimonials from your mother Sue Parry, your sister Penny Aston and your aunt Jan Kerr.

41 You were not a good student at school. According to Dr Cidoni's report, you were suspended seven times in Year Seven and expelled during your first term of Year Eight.[16] Your counsel informed me that you left school when you were 14 years and seven months old.

42 You immediately gained work as an apprentice butcher, which you stayed in for a number of years, without finishing the apprenticeship.

43 You then worked as a plasterer, completing an apprenticeship, and ran your own plastering business between 2002 and 2010. At the height of your business, you had about 18 employees.

44 In 2006, your first son Aidan was born. Prior to Aidan turning one, Aidan's mother, with whom you had a relationship lasting about nine months,[17] re-located to Queensland to be closer to her family, taking Aidan with her.

45 Shortly after her relocation, you started a relationship with your long term partner Ms Garmey, with whom you had two more sons, now aged six and eight.

46 Nonetheless, your separation from Aiden weighed heavily upon you, leading to a significant period of depression and anxiety. You initiated court proceedings regarding Aidan, which went on for a number of years. During this period, you used cannabis heavily. I note that according to Dr Cidoni, your use of cannabis began when you were 13.[18]

47 Towards the end of the life of your plastering business, around 2010, you used methylamphetamine to try and cope with your depression and anxiety and the demands of your business, which involved long hours of work.

48 Eventually, you left the plastering business and after completing a Diploma in Information Technology, opened a computer store in Epping. Unfortunately, by this time, you were using methamphetamine on an almost daily basis.

49 Your business failed. You were effectively unemployed, heavily addicted to drugs and family relationships were extremely strained.

50 Your partner Ms Garmey left you in July 2011.[19] There was an intervention order taken out in her favour.

51 Around this time you began to commit offences linked with your drug use, including offences against Ms Garmey.

52 In March 2012, at Heidelberg Magistrate Court you were sentenced to an aggregate sentence of five months imprisonment wholly suspended for 12 months for 10 counts of obtaining property by deception and one count of attempting to obtain property by deception. You also received an aggregate fine for two counts of failing to answer bail and driving offences. Your only convictions prior to that court case were for a couple of driving offences back in 2005.

53 In July 2012, in preparation for a court case at Melbourne Magistrates Court in August 2012, your solicitors obtained a psychiatric report from a consultant psychiatrist Dr Anthony Cidoni. As regards methamphetamine or ice use, Dr Cidoni stated:

Mr Parry described use of amphetamines from age 22, bingeing for months at a time up to 1g of ice per day. In recent times he has taken .1g several times per week.[20]

Mr Parry described some social drinking of alcohol and some abuse of alprazolam and some use of cocaine. He described heroin use from aged 19 to 22 and ecstasy use in the past.[21]

55 Dr Cidoni noted that 'during his previous incarceration,[22] he stated he was diagnosed with bipolar disorder'.[23] I will return to this reported diagnosis when referring to a more recent psychiatric report.

56 In August 2012, at Melbourne Magistrates Court, you were sentenced to a total effective sentence of one years imprisonment with a non-parole period of three months for stalking, contravening a family violence intervention order and two counts of threatening to kill. The Court made a declaration of 57 days of pre-sentence detention. The victim of these offences was your former long term partner, Ms Garmey.

57 You were released on parole in late 2012, which you successfully completed.

58 In May 2013, at Heidelberg Magistrates Court, you were sentenced in respect of offences committed prior to you receiving the August 2012 sentence. You were placed on a Community Corrections Order, and fined, for burglary, unlawfully entering a private place, two counts of criminal damage and two counts of theft. You successfully completed your CCO which required you to undergo drug and mental health assessment and counselling.

59 You obtained work with Westside Meat in Bacchus Marsh in their boning room in 2013. You became a foreman there. The Manager of Westside Meats provided me with a reference, speaking highly of your two years of service.

60 You were arrested and remanded in custody on the murder on 7 July 2015. You have been no trouble whilst in custody and have been rewarded with coveted billet jobs.

61 For the current proceedings, your solicitors obtained a report from another consultant psychiatrist, a Dr Leon Turnbull.

62 Dr Turnbull notes that after you were released on parole in late 2012, you abstained from drugs for a considerable period, worked hard and got your life back on track. You were seeing a psychiatrist Dr Singh for mood instability and were prescribed elilim.

About 2 months prior to the offence he resumed using ice, marijuana and GHB. He smoked up to an ounce of marijuana weekly, half a gram of ice daily, and used 20 ml of GHB on weekends - "I hit it ever harder this time". He does not recognise any particular reason why he relapsed.[24]

64 Dr Turnbull records that during this relapse, your home was burgled, you came to believe that Coulson was the culprit and 'your drug use escalated even more - "it turned into a massive binge"'.[25]

65 Dr Turnbull had access to Dr Cidoni's 2012 report. In relation to whether you have a bipolar disorder, Dr Turnbull states:

I note the previous diagnosis of bipolar, Dr Cidon's comments, and the stability of Mr Parry's mood state in the absence of illicit drugs and on medication.

A bipolar diagnosis requires one to be psychiatrically hospitalized which Mr Parry has never been.

He has also been a lifetime user of illicit drugs and this makes any retrospective judgment on mood states particularly difficult in (sic) regards untangling psychiatric pathology from the ups and downs of intoxication, craving and withdrawal of drugs.

At best I can say Mr Parry has some mood disturbances since childhood that has (sic) not reached bipolar proportions.[26]

66 You have pleaded guilty to the murder and you are entitled to a very significant discount for that plea. You entered your plea an early stage, at the beginning of the committal.[27] There are significant utilitarian benefits from your plea of guilty - witnesses and the community have been spared a criminal trial - but, more importantly, I consider that your plea indicates that you are remorseful. I note too that you handed yourself into police just two days after your offence and made significant admissions in your record of interview.

67 There are a number of matters that bear favourably on your prospects of rehabilitation. First is the fact that you pleaded guilty at an early stage, accepting responsibility for your offence. Second, is the fact that you have a good work history. Third, you appear to have a supportive family, and friends, some of whom have also provided testimonials.[28] Fourth, your behaviour since being remanded in custody has been good. Fifth, you have limited relevant prior convictions, and those offences did not occur until you were in your thirties. Sixth, your mental health is reasonable. Normally, such a combination of factors would result in a finding that your rehabilitative prospects are excellent and that specific deterrence needs to be given little, if any weight.

68 But a real concern is your long history of drug use, as described by Doctors Cidoni and Turnbull. And the fact that a couple of months prior to the murder you relapsed into heavy drug use for no apparent reason.

69 In all the circumstances, I assess your prospects of rehabilitation as reasonable. Specific deterrence - that is deterring you from further offending - must inform the sentence I impose on you but I will moderate the weight I give to that sentencing consideration given your rehabilitative prospects.

70 In outlining your personal history, I mentioned your prior convictions.

71 By reason of your two prior convictions, and sentences, for threatening to kill, you fall to be sentenced for the current offence as a serious violent offender. The prosecution, sensibly in my view, did not seek the imposition of a sentence disproportionate to the gravity of the murder but the Sentencing Act 1991 requires me, by reason of your status as a serious violent offender, to make protection of the community the principal sentencing consideration.[29]

72 Just punishment, denunciation of your conduct and general deterrence must all be factored into the sentence I impose on you, as well as the matters I have previously mentioned. To use your counsel's term, there will be a 'meaningful' parole period, to promote your rehabilitation.

74 I sentence you to 19 years' imprisonment with a non-parole period of 15 years.

75 I declare that you have served 493 days by way of presentence detention.

76 As required by s 6F of the Sentencing Act 1991, I order that it be noted in the court records that you were sentenced as a serious offender under Part 2A of that Act.

77 By consent, I make the disposal order sought by the prosecution.

78 But for your plea of guilty I would have imposed a sentence of 23 years' imprisonment with a non-parole period of 18 years.

79 Just punishment, denunciation, specific and general deterrence are all important sentencing considerations in your case.

[1] Parry's Record of Interview ('ROI') conducted on 7 July 2016, Q&A 146.

[3] ROI conducted on 7 July 2016, Q&A 20.

[5] Depositions, 177: Statement of Ashleigh Taylor, dated 31 August 2015, 19.

[7] Depositions, 146: Statement of Michael Lees, dated 29 July 2015, 2.

[10] Transcript of Plea Hearing on 12 September 2016, 33.

[11] See Defence written submissions dated 9 September 2016, [11e].

[13] Transcript of hearing on 11 July 2016, 22. Transcript of Plea Hearing on 12 September 2016, 10-11.

[14] Transcript of Plea Hearing on 12 September 2016, 14-5.

[15] Report of consultant psychiatrist Dr Anthony Cidoni, dated 25 July 2012, 2.

[22] This was possibly during a previous period of remand, as there is no previous sentence of immediate imprisonment on the criminal record supplied to me.

[23] Report of consultant psychiatrist Dr Anthony Cidoni, dated 25 July 2012, 3.

[24] Report of consultant psychiatrist Dr Leon Turnbull dated 30 June 2016, 2.

[27] At the committal, you pleaded guilty to murder contrary to s 3A of the Crimes Act 1958 after the prosecution amended the charge, which was originally murder contrary to the common law. On 11 July 2016, I raised concerns with the parties about the validity of the charge of constructive murder, as the foundational offence was specified to be intentionally causing injury, a novel foundational offence. I expressed the view that intentionally causing injury was not an offence necessarily involving violence, although it usually is committed violently. At the parties request, I adjourned the matter for the parties to consider their options. On 10 August 2016, the prosecution filed over a charge of common law murder to which you pleaded.

[28] As well as testimonials from your mother, sister Penny and your aunt Jan Kerr, there were testimonials from your friends Beverly Anderson and Deborah Baus.

[29] Section 6D Sentencing Act 1991.