The Queen v Pozzebon [2019] VSC 631

1 John Pozzebon, you have pleaded guilty to the murder of Jason Smith, and admitted prior convictions contained in a criminal record filed in this case.

2 The maximum penalty for murder is life imprisonment.

3 Murder is a standard sentence offence with a standard sentence of 25 years.

4 Your counsel, Mr Waters, at the commencement of his plea in mitigation on your behalf, submitted that in this case, I would be called upon to sentence a good man for a terrible crime. I accept that that is so.

5 At the time of the offence, you were 56 years old. You lived at 2 Oxford Street, Sunshine North, the former matrimonial home you shared with your wife Susan Pozzebon. You remained living there after you and Susan separated in April 2016 and occupied the rear bedroom of the three bedroom house. Your then girlfriend, Sue Anderson ('Anderson'), also regularly stayed with you at the premises. At the time of his death, Jason Smith, who was the nephew of Susan Pozzebon, and hence your nephew as well, was living at the premises as a boarder, having been invited by you to move in in late-2017. He occupied the middle bedroom of the house. Another person, Andrew Matus ('Matus'), an acquaintance of yours, also lived at the premises with his girlfriend, Helga Hegenbart. They occupied the front bedroom.

6 You were the holder of a firearms licence and had six firearms registered in your name. You stored these firearms in a locked gun safe in the garage towards the rear of the property. Ammunition was stored in locked boxes in a shed in the backyard.

7 In the lead-up to his death, Mr Smith owed money to you for rent and other matters. The money owed was a source of intense aggravation to you. In addition, you suspected that Mr Smith was responsible for stealing some money from you which had been paid as rent by the other tenant, Matus.

8 On the night of Friday 2 March 2018, you and Anderson attended at the Double Deuce Bar at 264 McIntyre Road, Sunshine North. You consumed a number of alcoholic drinks, having consumed some drinks also at home before going to the bar.

9 You and Anderson returned home to the Oxford Street property after some hours at the bar, and then retired to bed at about midnight. The two of you watched some TV in bed.

10 At about 12.20 am on 3 March 2018, you left the bedroom apparently to go to the toilet. At about this time, Matus arrived home at the house and went to his room. Mr Smith arrived home shortly after this.

11 You went into Mr Smith's bedroom and the two of you had an argument about money. You asked where his overdue rent was, being heard by Matus to say to Mr Smith, 'Where's my rent, where's my rent, where's the money you owe me, cunt?' Mr Smith said he would have the rent money soon. Matus then heard you say, 'I've had enough, I've had enough of this, this is bullshit. That's what you said last time. What about the other fifty dollars from last week?'

12 Matus then heard you leave the house through the back door. He went into the kitchen and spoke briefly with Mr Smith, who was in that room. Matus returned to his room. Shortly afterwards, he heard you re-enter the house through the back door.

13 In that brief intervening period, you had left the house and proceeded to the shed at the rear of the property where your ammunition was stored. You unlocked an ammunition box and selected three .22 Short calibre ammunition rounds. You then walked to the garage and retrieved the keys to your gun safe from a locker. You unlocked the gun safe and selected a Stirling brand, .22 Long Rifle calibre, bolt action rifle from the safe. You removed the magazine from the rifle and loaded the three rounds into the magazine. You inserted the magazine back into the rifle and chambered a round by manipulating the bolt action lever on the rifle. You attached a silencer to the barrel of the rifle. You then returned inside the house through the back door.

14 You then went up to Mr Smith in the kitchen and began yelling at him about the money he owed you and about everything you had done for his family. Amongst other things, you called Mr Smith a 'lying bastard'. You sounded angry and aggressive during the argument, which was heard by Matus. Mr Smith sounded upset. He denied stealing from you. Anderson, who was still in the rear bedroom, heard Mr Smith say, 'I love you, Potsy'. Potsy was your nickname.

15 Shortly after this, you raised the rifle and placed it close to the head of Mr Smith. You pulled the trigger and shot him in the head. A single round penetrated his head, entering through the left side just above the ear and travelling through his brain to the right side of the head. He fell to the floor. At this time, Matus heard a noise which sounded to him like a thud. The evidence would indicate the noise heard by Matus must have been the sound of you shooting Mr Smith once to the head and Mr Smith falling to the ground. You were then heard to yell out something. As Matus heard it, you yelled, in an angry voice, 'Now Andrew, where are you?...Show your face'. Anderson, on the other hand, heard you yell out words similar to, 'Where are you Andrew? You're next'.

16 Matus walked from his room into the hallway. He could see Mr Smith lying on the floor in the kitchen, surrounded by blood. You were standing in the middle of the kitchen to the right of Mr Smith, holding a rifle in your hand. Matus immediately fled the scene, fearful of being shot by you. He went to the Sunshine Police Station and reported the event.

17 You returned to your bedroom with the rifle. You said to Anderson, 'You don't want to come out here, it is a bloodbath'. She went to the kitchen and saw Mr Smith lying on the floor. She told you to get rid of the rifle. You said to her, 'Don't worry, you're safe'. You then manipulated the bolt action which caused a spent cartridge case to eject from the rifle onto the kitchen floor.

18 While Anderson had a cigarette in the front yard, you left the house again by the rear door. You entered the garage and removed the silencer from the rifle, placing it on the bench. You then placed the rifle in a rifle bag and put the bag on a trailer in the garage.

19 At about this time, a friend of yours, Raymond Lane, who was driving past and saw Anderson in the front yard, stopped his vehicle and spoke to her. She told him what had happened. He approached the front door, and you appeared from inside the house. He asked you what you had done, and you said, 'I've had enough of the Smitties', an apparent reference to your wife's side of the family. Lane walked inside, to the point where he was able to see the leg of Mr Smith on the floor in the kitchen. Shortly thereafter, Lane left the premises. Anderson collected some possessions and also left.

20 Police from the Critical Incident Response Team arrived at the address to find you on the footpath drinking from a bottle of apple cider. You were arrested without incident and placed in the custody of Detective Senior Constable Nicola Verbeek at the scene at about 1.44 am. She cautioned you and explained your rights to you. You said to her, 'I'm not going home for a very long time. I was going to cap myself'. She asked you where the firearm was, and you said, 'You'll see it in the garage'. When she asked if it was the only firearm, you said, 'In the gun safe. See what I would have been capable of, it's open'. You went on to say, of Mr Smith, 'I told him before, where's the money. That's it. I've had enough. I own that house. I own it outright...Andrew was here. Simple as that. I had enough. I'm well versed in martial arts. I'm well versed in shooting, and I'm well versed in killing people'. You referred to a workplace accident you had experienced when you fell from a ladder. Continuing about the offence, you said, 'I didn't have time to dispose of the bodies, it was only one. No one saw me do it. No one knew I did it. My prints are on the gun. It'll be a remand. I'm not getting out on this'.

21 On your arrival at Sunshine Police Station, you said to Ms Verbeek, 'It was a long time coming'.

22 A DVD recorded interview was commenced by Verbeek shortly before 2.50 am.[1] You made admissions during the interview of having deliberately shot Mr Smith. In short, you said that you had been owed money by Mr Smith, and you suspected he had also stolen some money from you. You said you had had enough. You were sick and tired of getting taken for a ride. You said you 'belted' Mr Smith over the back of his head with a gun you were holding. You said, 'And he still telling me that he's gunna be bringing the money to me. Claimed to me gunna bring the money. Well, time he stopped. Simple as that. Bang...'.

23 A little later in the interview, the following exchange occurred:

Q 121: OK. That's ---

A Argued with him. And I told him, 'Look, ya idiot, I had enough of your bullshit. Where's the money?'

Q 122: Mm'hm

A Still more bullshit coming up. And then I just capped him one.

Q 123: Tell me what you mean about that.

A Bring the gun up and go bang. Pulled trigger. I've shot many things in my life. And that was it. Cold-blooded. He was on the ground.

24 I have not set out the other admissions made by you in the interview. Suffice to say that you admitted having deliberately shot dead Mr Smith due to your anger towards him. You expressed no regret for your conduct.

25 After the conclusion of the interview, members of the Homicide Squad arrived at the police station. Shortly thereafter, you were assessed by a Forensic Medical Officer ('FMO') as being unfit for further interview at that time due to fatigue. He informed the police that any further interview should be delayed for at least eight hours.

26 Abiding by the direction of the FMO, the Homicide Squad delayed a further interview until later in the day. At about 3.25 pm on 3 March 2018, an interview commenced.[2] By this time, you had changed your account. The change was introduced by you saying, early in the interview:

The only thing I'm going to be putting to youse is part of which I didn't state last night, all I wanted to do to Jason was to put the wind up him. Put some fear in him to make sure he pays his rent on time, 'cause he's ripped me off that many times.[3]

27 Thereafter, you proceeded to give a detailed account of having shot Mr Smith in the head with a firearm you had obtained from the gun safe in the garage, loaded with ammunition, and fitted with a silencer. You claimed you had placed the gun to the head of Mr Smith to frighten him, and as a result of him grabbing the gun, that you had shot him to the head as a result of an accident.

28 An autopsy was carried out on the body of Mr Smith on 3 March 2018. A gunshot entry wound was found on the left temporal region of the head. The projectile passed through the left temporal lobe, midbrain and right temporal lobe, resulting in a partial exit on the right temporal bone. The wound track was left to right, slightly front to back, and slightly above to below. There was an absence of blackening, muzzle imprint or stippling at the point of entry. Imaging revealed fragments of the projectile within the cranial cavity. The cause of death was ascertained to be gunshot wound to the head.

29 You were born and raised in Melbourne in quite a strict family environment. Your father, in particular, was a strict disciplinarian to you and your two older sisters and one older brother. You were exposed to some violence in the home, and both of your parents, who are now deceased, were alcoholics. You attended Sunshine North Primary School and then Sunshine North Technical School. You repeated year 10 as a result of difficulties you had with literacy.

30 Having left school after year 10, you commenced employment as a chemical blender, and thereafter, engaged in stable employment with a number of long-term jobs in varying industries. This continued up to the time you suffered a serious head injury as a result of a fall from a ladder. I will return to this topic shortly.

31 You married your wife Susan when you were 22 and the marriage continued for 30 years until your separation in 2016. You and Susan had three children, Sheree, Jamie and Ricky, who have all, as I am told, been positive contributors to the community.

32 As things were explained to me, your life changed when you had the industrial accident I mentioned a moment ago. You fell three metres onto a concrete floor, striking your head and suffering a serious brain injury. You made a good recovery cognitively, but your friends and family observed significant changes in your personality. As Susan Pozzebon described it, your personality changed markedly. You angered easily, became fixated on particular things, began to drink alcohol heavily, and found it difficult to stay on topic. In addition, you found yourself unable to hold down a steady job. Your marriage faltered and ended. You found yourself unable to pursue many of the activities you had previously undertaken, including the sport of Taekwondo in which you had been heavily involved beforehand.

33 Despite these changes in you, you continued to demonstrate many of the positive traits so much admired by your friends and family, and character references tendered on your behalf on the plea speak of a decent, hardworking, kind, considerate and trustworthy husband, father and friend.

34 As I mentioned earlier, you have some prior convictions, but these are old findings of guilt for quite minor matters and can be disregarded for sentencing purposes.

35 A report of Dr Aaron Cunningham, a psychologist, was tendered during the plea. Dr Cunningham had access to two neuropsychological reports prepared in the aftermath of your brain injury. He conducted some psychometric testing in respect of your personality which revealed, amongst other things, a profile indicative of a tendency towards impulsivity, recklessness, paranoia and emotional instability. You reported feelings of depression since your brain injury, and becoming fixated and obsessional about things.

36 Dr Cunningham was of the opinion that your presentation and reported symptoms were consistent with your previous brain injury.

37 In light of your apparent intoxication on the occasion of your offending, which you spelt out clearly to him, Dr Cunningham stated:

In my opinion, Mr Pozzebon's alcohol intoxication would obscure any attempt to connect the symptoms of his brain injury to his offence behaviour. Mr Pozzebon's reported level of intoxication would likely have impaired his judgment at the time of the offence.

38 In the circumstances, your counsel did not submit that your mental condition at the time of the offending or now would raise for consideration any of the principles discussed in R v Verdins.[4] However, he did submit that the features of your personality following on from your brain injury can be seen to have played a part in your offending. I accept that that is so, and I take this fact into account in a general way in sentencing you. It is clear enough that you became fixated on the thought that Mr Smith had stolen money from you, and allowed that fact and the concerns you had about his continuing drug use to overwhelm you and lead to a state of irrational anger which led to conduct on your part which was quite outside your normal character.

39 Your crime having been committed after 1 February 2018, the standard sentence scheme applies to this offence. The standard sentence for murder is 25 years.

40 Pursuant to s 5A(1)(b) of the Sentencing Act 1991 ('the Act'), the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

41 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.

42 The standard sentence scheme was recently the subject of consideration for the first time by the Court of Appeal in the decision of Brown v The Queen ('Brown').[5] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

• is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
• does not affect the established 'instinctive synthesis' approach to sentencing;
• does not require or permit 'two-stage sentencing'; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.[6]

43 The Court noted that the only area of uncertainty concerned the judge's assessment of the seriousness of the offence before the court, in light of the definition of the standard sentence contained in s 5A(1)(b) of the Act. The Court indicated that the question explored at the hearing of this and two related appeals was whether the new scheme required, or permitted, the sentencing judge to assess the seriousness of the subject offence 'taking into account only the objective factors' as defined in s 5A(3). The Court concluded that the question should be answered in the negative. The Court held:

In our opinion, the standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of 'objective factors'. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence 'in the middle of the range of seriousness'. [7]

44 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you by the process of instinctive synthesis. In doing so, I have applied the law as recently explained in Brown.

Nature and gravity of offence and your culpability and degree of responsibility

45 Two of the matters to which I am required by s 5(2)(c) and (d) of the Act to have regard are the nature and gravity of the offence and your culpability and degree of responsibility for the offence.

46 Mr Waters submitted that your crime lacked many of the aggravating features seen in many cases of murder. There was little in the way of premeditation, he submitted, and such steps as you did take to prepare for your crime were carried out 'in the heat of the moment'. He initially submitted that your offence fell 'somewhere below the mid-range of seriousness, given the lack of aggravating features of the crime'. A little later, he submitted that your offending would fall at 'the lower end of the mid-range'.

47 I do not accept those submissions, which were challenged by the Crown.

48 The Court of Appeal have made it clear on several occasions in recent times, most recently in DPP v Ristevski,[8] that it may not be helpful to seek to fit particular offences within a category of seriousness of offending. What is important is a consideration of the features of the individual case. In this case, if there is any utility in seeking to place your offending in a category of seriousness, it would well and truly be in the mid-range of seriousness, if not towards the top of the mid-range. Notwithstanding the absence of some of the aggravating features of murder sometimes seen, the objective circumstances of your offence here make plain the fact that your crime was a very serious one.

49 For no good reason, and no doubt due in part to your intoxicated state and a build up of frustration towards him, you lost your temper with your nephew Mr Smith and made a most extraordinary decision to shoot him. You then took steps over a number of minutes to act upon that decision. In a persisting and disturbing state of high anger, you left the house, and then took all of the steps I mentioned earlier in this sentence to obtain, load, and prepare a firearm for use, complete with the use of a silencer. You then returned inside and confronted Mr Smith. Throughout all of that time, as a mature person of normal intelligence, you had ample opportunity to reflect on what you were proposing to do. And yet, in spite of the extreme and shocking nature of your planned actions, you did not resile from them. You shot Mr Smith to the head from close range, intending, I am satisfied beyond reasonable doubt, to kill him.

50 Having done so, in calm and clinical fashion, you returned the firearm to the garage, had dealings with Sue Anderson and Raymond Lane marked by your chilling detachment from the crime you had committed, and awaited the arrival of the police.

51 Then, throughout your early dealings with the police, up to the time of the first interview, you did not say or do anything to indicate any remorse or regret about what you had done. Indeed, you sought to justify it. And all of this in respect of your murder of a younger relative of yours whom you knew to be vulnerable, and trusting of you.

52 All-in-all, I think there is no doubt that yours was a serious example of the always-serious crime of murder, for which your moral culpability is high.

53 Victim impact statements were provided by Jane Munro, the mother of Jason Smith, and by Taliah Saliba, the niece of Jason Smith.

54 Both of these statements provide eloquent testimony to the devastating effect your crime has had on its victims. In the case of Jane Munro, the murder of her first-born son, taking away as it did an integral and much-loved part of her family, is something which she still cannot fathom. She believes the sadness and sense of loss will be with her forever. So, too, does Ms Saliba continue to feel the effects of your actions, which have broken up her family, as she perceives it, and taken away their happiness.

55 I take the contents of these victims impact statements into account as I am required to do under the Act

Course of proceedings, plea of guilty and remorse

56 A contested committal was held in this matter and on 9 November 2018, you were committed for trial on the charge of murder. Time was set aside prior to the commencement of the trial for consideration of an application brought on your behalf for the exclusion of the first interview with the police on the basis that you were not in a fit state to be interviewed on account of intoxication with alcohol. Having heard that application, I determined that the interview was admissible.[9]

57 Shortly after my ruling, you indicated an intention to plead guilty to the charge of murder. You were arraigned and pleaded guilty before me on 24 July 2019.

58 The law requires me to take into account your plea of guilty and the stage in the proceedings at which you entered that plea or indicated an intention to do so.[10]

59 Mr Waters urged me to have regard to the offer you made to plead guilty to manslaughter in June 2018, which, as he put it, showed your willingness at that early time to accept responsibility for the killing. As I pointed out to Mr Waters, however, your earlier offer did not reflect a willingness to accept responsibility for the crime you had actually carried out, which was the deliberate murder of Mr Smith, as opposed to an unintended killing. It cannot be to your credit when sentence is passed that you had offered to plead guilty to a crime which in no way truly reflected your offending.

60 Having said that, your plea of guilty to murder, even at the late stage at which it occurred, is an important matter in mitigation of sentence. It is of great utilitarian value, and I am satisfied in your case, is reflective of the genuine remorse you now feel for your crime. In addition, your plea of guilty is evidence of the other so-called subjective matters which may flow from a plea of guilty.[11]

61 The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but section 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

62 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[12]

63 Only a relatively small number of sentences have been passed in respect of murder as a standard sentence offence. Those sentences as at the time of the plea hearing before me were cited in the prosecution outline of submissions on sentence by Dr Rogers. It may be said that it is still too early to conclude any meaningful sentencing practices have emerged. However, I have considered the circumstances of those cases, and noted the sentences passed.

64 If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be one of 20 years or more.

65 Mr Waters submitted that your age, whilst not justifying the imposition of an inappropriately low sentence, might warrant some moderation in 'both the head sentence and in particular, the non-parole period in order to avoid the imposition of a crushing sentence'.[13] Having submitted that a head sentence of less than the standard sentence for murder would be appropriate in your case, Mr Waters went on to submit that it would be appropriate in all the circumstances of the case to fix a non-parole period which 'avoids destroying any reasonable expectation that [you] might have some useful period of life after [your] release from custody'.[14] He further submitted that it may be in the interests of justice to fix a non-parole period shorter than that required under the standard sentence legislation.

66 Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, I will fix a non-parole period that will somewhat exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.

67 Insofar as Mr Waters made the submissions referred to earlier in respect of the non-parole period, and the desirability of not sentencing you in a way which would remove hope of a useful life after your time in custody, the fact is that in your case, I am called upon to sentence a 58 year old man for a heinous crime. It is an unavoidable and sad fact that the non-parole period required to be imposed for the needs of justice to be served will necessary consign you to custody for a substantial portion of the years of life remaining to you.

68 As indicated earlier, this is a serious example of the crime of murder. The crime was justifiably described by Mr Waters as a terrible one. For reasons of frustration and anger, you decided upon a terrible course of action directed at your nephew, a person who should have been able to expect your protection rather than for you to do him harm. In breach of your position of trust, you carried out the preparatory acts for your crime systematically and with clinical precision, never wavering in your course. You then shot Mr Smith in the head from close range, snuffing out his life as was your intention. Your shocking crime was not the product of a moment's irrational thought, but rather, some minutes of pre-meditation in respect of an act the atrocious nature of which could only have been perfectly apparent to you, even in your somewhat intoxicated state.

69 To my mind, the important reasons for which sentence must be passed in your case are just punishment, denunciation, general deterrence, and protection of the community. You must be punished in a way which reflects the shocking seriousness of your crime and amounts to an appropriate response to it. The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort. The life of Jason Smith was precious. You took it away for no good reason, but in the clear knowledge of the severity of your actions. You were a mature adult of normal intelligence, suffering no mental impairment that clouded your reason or judgment. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence in response to feelings of anger and frustration that such conduct will be met with strong punishment. As for the protection of the community, that does not cease to be important merely because you will be of relatively advanced years by the time you become eligible for parole. You committed a crime of extraordinary and irrational violence, and there is the need for the community to be protected from any repetition of your conduct in future. None of this is to say that specific deterrence is not also of some significance in sentence. I take into account, also, the need for you to be personally deterred from future offending. As for rehabilitation, it, too, is not without some importance. The sentence I pass will provide the prospect, at least, of a significant period of time under the supervision of parole in the community.

70 John Pozzebon, for the murder of Jason Smith, you are sentenced to be imprisoned for 26 years. I fix a period of 19 years during which you will not be eligible to be released on parole.

Section 5B(5) statement

71 Section 5B(4) of the Sentencing Act 1991 requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

72 As I understand it, the applicable law does not require me in complying with the requirement of s 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[15] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[16] I have endeavoured to do that in some detail during these reasons for sentence.

73 The sentence I have passed is slightly higher than the standard sentence for the offence of murder. I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I have just announced.

74 I declare a period of 655 days up to and including yesterday, 17 December 2019, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

Section 6AAA declaration

75 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 30 years with a non-parole period of 24 years.

76 I make the forfeiture and disposal orders sought by the prosecution, which were not opposed by you.

[4] [2007] VSCA 102; (2007) 16 VR 269.

[5] [2019] VSCA 286 ('Brown') (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[8] [2019] VSCA 287, per Priest JA [65]-[67].

[9] R v Pozzebon [2019] VSC 479.

[10] Sentencing Act 1991 s 5(2)(e).

[11] R v Phillips [2012] VSCA 140; (2012) 37 VR 594 [68]-[69].

[12] R v Brown [2018] VSC 742 (Champion J) [111].

[14] Outline of Plea Submission [13](ii).

[15] Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 [29].