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[2016] VSC 105
General information, not legal advice.
Supreme Court of Victoria
2016-03-18
LASRY J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Murder - Robbery - Attempted theft - Rape - Pleas of guilty - Victims chosen at random - Remorse, absence of - Serious criminal history - Supervision order made pursuant to Serious Sex Offenders (Detention and Supervision) Act 2009 - Poor prospects of rehabilitation - Personality disorder - Principles in R v Verdins [2007] VSCA 102; [2007] 16 VR 269 not enlivened - Serious violent offender - Sentencing Act 1991 - Community protection - Sentence of life imprisonment - Non-parole period - Considerations in fixing - Mercy.
1 Sean Christian Price, on 25 August 2015 you pleaded guilty in this Court to four offences on the indictment. Charge 1 is a charge of the murder of Masa Vukotic on 17 March 2015. Charge 2 is a charge of the robbery of Toan Nguyen on 19 March 2015. Charge 3 is a charge of the attempted theft of a motor vehicle on the same date. Charge 4 is a charge of the rape of BC, also on 19 March 2015.
2 The maximum penalty for murder is life imprisonment. The maximum penalty for robbery is 15 years' imprisonment. The maximum penalty for attempted theft is 5 years' imprisonment. The maximum penalty for rape is 25 years' imprisonment.
3 On 14 December 2015, I heard an opening address and submissions from senior counsel for the Director of Public Prosecutions. I also heard, at least in part, a plea from Ms Fox of counsel on your behalf until you terminated her services before the proceedings were completed. I then heard submissions from you in person on that date and the day following.
4 On 17 February 2016, the prosecution presented further written submissions in relation to whether you should be sentenced as a serious violent offender and you in turn provided a written response to those submissions. It is now my responsibility to sentence you for these offences.
5 At the time of these very serious offences you were aged 31 years. You are now 32 years. At the time you committed these offences you were living in the community at a unit in Burnewang Street Albion despite your serious criminal history, being on bail for outstanding offences and the existence of a 10 year supervision order made in the County Court in 2012. You had been living there since 2 October 2014, some five months before you committed these offences. The 10 year supervision order was made by Judge Punshon in the County Court pursuant to the Serious Sex Offenders (Detention & Supervision) Act 2009 ('the Act') in May 2012 in circumstances which I will later describe in these reasons for sentence. That order was made because the judge hearing the application for the order concluded you were an unacceptable risk of committing offences for at least the following 10 years. In a catastrophic example of mismanagement, whether on the part of the Department of Corrections or the Adult Parole Board, a decision was made to release you into the community and from the moment that regrettable decision was made the supervision order ceased to have any protective effect.
6 The short time you spent living in the community following your release was difficult. You were unsettled and restless much of the time, particularly in the month immediately preceding the commission of these offences. According to what you told forensic psychologist Guy Coffey, you were thinking a lot about killing. You were obsessed with what you regarded as injustices you suffered whilst you were in custody. You were non-compliant with the medication prescribed to treat and assist you. You later reported to forensic psychiatric Dr Zimmerman abusing alcohol and cannabis in the days prior to these offences being committed.
7 In the month prior to committing these offences, you admitted to your case worker Mr Igor Tomic of the Department of Corrections Office at Sunshine, you still harboured violent tendencies. Later, it was noted by Tomic that you were angry and paranoid and that remained the case until the end of February 2015. On 11 March 2015 during a home visit by Tomic you were angry, hostile and abusive toward another of the officers attending, a Mr Heiford.
8 On 16 March 2015, the day before you murdered Masa Vukotic, during a session with Tomic, you displayed unusual aggression and hostility. When Tomic attempted to engage with you about a new training regime you responded defensively stating 'Is that a threat?' You became increasingly abusive and, at a moment of your choosing, ended the session and left the office. Mental health concerns were recorded and your persistent display of anti-social attitudes and paranoid beliefs were noted yet no action was taken and you remained unrestrained. Between October 2014 until March 2015 the protective purpose of the supervision order made by the County Court was effectively being ignored. The complete folly of the decision to leave you unsupervised and untreated in the community since October 2014 was about to be demonstrated with tragic effect. I tried to understand how this could have occurred given what was known about you and the violent conduct you might well engage in. For reasons I will return to later, I failed.
9 At the time of her death one year ago on 17 March 2015, Masa Vukotic was aged 17 years. Born in Serbia on 1 December 1997, she came to Australia with her parents and siblings in January 2000. The Vukotic family lived in Doncaster and Masa attended Canterbury Girls Secondary College. The family home was only a short distance from the Koonung Creek reserve, where Ms Vukotic met her death at your hands.
10 On 17 March 2015, you left your home address in the suburb of Albion at about 5.30am and then spent 11 hours travelling around the Melbourne metropolitan area on public transport. During that time you went to Crown Casino, where you apparently gambled away such money as you had. According to what you told police, during that morning you were again experiencing predatory thoughts about robbing and stabbing someone. At one stage you went to Hawthorn looking for 'rich' people to kill. Later you went home to Albion and obtained a knife before returning to the eastern suburbs with killing in mind. The knife you obtained was a large kitchen knife which you placed in a white plastic bag endeavouring to secrete it. By this time you had well and truly determined to murder someone with the knife. You even had the foresight to take with you a spare t-shirt because you anticipated the need to change out of a blood stained shirt following the stabbing murder you intended to commit.
11 The anger and resentment you were feeling when you committed these offences arose from your period of incarceration during which you claim to have been mistreated. You were frustrated by what you perceived to be the community's indifference to the plight of prisoners and you in particular. You concluded that the way to draw attention to these apparent injustices was to stab 'rich people' in a more affluent area than the one in which you lived so that people would take notice.
12 After travelling around in the way that you had been since early in the morning, at about 6.35pm you arrived in the Doncaster area by bus. Your victim, Masa Vukotic, had been at school on that day. She had come home after school, had a meal with her family and then announced to them she was going for a walk. She took her mobile phone and house keys with her. That was the last time they saw their daughter alive.
13 When she left her home address she had her headphones attached to her phone. She then walked in the vicinity of the park in which she would soon die. At this stage you had arrived by bus and were walking through the same area looking for someone to attack. You saw Masa Vukotic approaching the park and, according to what you told the police, 'This chick was on the other side of the road and she's coming up, yeah and she's like started talking to a bird like fucking Snow White. I thought she's fucking - she's dressed like fucking all yuppie'. Later on in your answers to police you said, 'And it was like, you know, I was looking, looking and I just thought fuck this, this is the moment. This one just ended up being the one, I just fucking had to kill her, man. I fucking had to kill her.'
14 In a mastery of understatement, you later suggested she had ended up in the wrong place. You removed the knife from the bag you were carrying and ran up to Masa Vukotic with the knife in your hand. You pushed her into the bushes in the vicinity of the park. At that stage she pleaded with you not to hurt her. She told you she would do anything you wanted her to do. You began stabbing her, ignoring her pleas. You said to the police, 'I just fucking started ripping and stabbing and fucking just stabbing'.
15 The sound of what you were doing, particularly her screams, were heard by a couple from a nearby property. Around the same time, a person walked past the immediate vicinity with a dog. Momentarily distracted by the dog you apparently stopped what you were doing, but since that person and the dog did not appear likely to interfere you went back into the bush and continued to stab Masa Vukotic. As you told police you "went crazy" stabbing her.
16 You have a clear and vivid memory of what you did because you told the police that after you returned to where Ms Vukotic lay to continue the attack on her you were aiming for her 'lethal regions' and her 'vitals' stabbing her in the heart and 'on the gut'. You were anxious to make sure she was dead, because if she wasn't then in your opinion what you were doing was a waste of time.
17 The couple from the nearby property who had heard the scream, Mr and Mrs Nguyen, and a Mr Devisser decided to investigate. They saw bushes moving abnormally and then they saw you step out from the bushes with a knife in one hand and a plastic bag in the other. You then fled the scene on foot carrying the knife, the bag and your jacket. A portion of your flight was captured on a security camera. You ran in a northerly direction up a street known as Heyington Avenue and entered a front yard in that street, using a water tap to remove blood from your hands, arms and face. You also put the T-shirt that you had previously packed on over the T-shirt you were already wearing.
18 Having run from the scene, you asked a person for directions to Doncaster Shopping Centre, and boarded a bus in Doncaster Road at about 7.10pm. You were observed by passengers on the bus to be agitated and nervous, as well as being out of breath and sweating profusely. This bus took you to Abbotsford, where you then walked to the Victoria Park railway station and caught a train to Flinders Street. You then alighted another train on which you travelled to Sunshine and walked home from there.
19 Back at the scene in Doncaster, the police attended at around 7.00pm following a phone call to 000. They were directed to the scene of the murder by those who had observed you fleeing. By the time they got to where Masa Vukotic was she was almost certainly already dead and the attempts made to revive her failed. She was formally declared as being deceased at 7.20pm. We take for granted that police and other emergency services will simply do their work almost without recognition. The sight that confronted them was undoubtedly terrible and they too must be significantly affected by what you have done. They should be commended for their work.
20 At about 8.00pm, Ms Vukotic's mother arrived at the scene to be confronted with the reality that it was her daughter who had been murdered by you and so commenced the tide of tragedy you had created.
21 The post-mortem later conducted on Masa Vukotic's body revealed a total of 49 separate injuries. They were on the head, neck, chest and abdomen. She sustained 16 stab injuries, two incised injuries and two sharp force injuries. The stab injury on the right side of her neck had severed the right carotid artery and a stab injury to the lower neck had resulted in substantial blood loss. It was the multiplicity of stab injuries to the neck which caused her death.
22 On the following day, as this tragedy reached its crescendo, you left your home again with the intention of stabbing somebody. You travelled in the vicinity of Newport and Yarraville. Fortunately, you abandoned your original plan and disposed of the knife and other items of clothing. The knife that you had with you on that occasion was located. As I understand it, the knife which you used to cause the death of Masa Vukotic has not been recovered.
23 You told police that the only reason you did not stab someone on 18 March was because your intended target had been decent to you, providing you with $50. You said this act of kindness was the only thing that saved that person from being stabbed by you that day.
24 That night, at the Brimbank Library in Sunshine, you spent some 11 minutes looking at media reports regarding your murder of Masa Vukotic.
25 Charge 2 on the indictment is the charge of robbery of Mr Toan Nguyen. That occurred in circumstances where on Thursday 19 March 2015, at about 9.37am, Mr Nguyen was walking to the local library from his home address in Anderson Road, Sunshine. He became aware of you walking behind him. You saw him and decided you wanted money and resolved to rob him. Mr Nguyen continued to an elevator at the McKay Gardens overpass. Once in the elevator, you grabbed him around the neck and put him in a headlock demanding that he hand over his wallet and his bag. You punched Nguyen to the head several times and, during that exchange, his mobile fell out of his pocket. You grabbed the phone and, when the elevator reached the overpass, ran from the scene.
26 You then went to the Brimbank Library in Sunshine and again used a computer to look at media reports of the murder of Masa Vukotic. Your opinion by that stage was that you were in significant trouble. In my opinion, you also found the publicity about yourself irresistible in spite of its grotesque nature.
27 Shortly after this, at about 10.30am, a Mr Hut Vu was parked in front of the Brimbank Library in Sunshine. You left the library, jumped a fence and approached Mr Vu's vehicle, getting into the driver's seat. The keys were in the ignition. Mr Vu went around to the driver's side of the car and punched you in the face to try and get you out of the car as you attempted to drive it away. He also grabbed the keys out of the ignition. As Mr Vu began yelling for help, you decided to leave the scene.
28 The rape of BC was committed shortly after the incidents I have been describing and arose because you were of the opinion that it was only a matter of time before you were arrested for the murder of Masa Vukotic and that you would receive a life sentence of imprisonment for that offence. Thus, this offence of rape was decided upon by you in order to obtain some form of sexual gratification before finally being arrested.
29 Your first and preferred option was to sexually assault a woman who was working in a video store in West Melbourne. You went there and spent some 25 minutes in that shop, only thwarted by the fact that other customers were present and so you decided to abandon that plan. You then went next door to a bookstore. You entered the store at about 11.10am. You engaged BC in conversation about religion and enquired where the bibles in the store were kept. She told you that they were at the back and you went to that vicinity of the store. You later went back to the counter and asked her whether she could direct you to books discussing the 'scientific evidence of God'. In order to assist you, she left the counter and took you to the back corner of the store. For you the advantage of this area of the store was that it was not visible from the front.
30 You grabbed BC from behind and put your hand over her mouth to prevent her screams from being heard. You forced her to the floor and, with her on the ground lying on her back, you digitally raped her with your left hand. Before doing that, you had pushed hard on her throat to stifle her screaming. As this was occurring, you said to her 'Where's your Jesus now?'.
31 In your record of interview, you described what you did to her and how you had asked her about where Jesus was and other things she had said, which you described as 'stupid, religious, fucking comments'.
32 You were choking her around the neck with both of your hands on her throat. She fought back by biting, pinching, poking and scratching. She attempted to gouge at your eyes and pushed her fingers into your mouth.
33 BC's co-worker, HW, heard her call for help and ran through an adjacent building to the vicinity of where you were. A Mr DA heard someone calling for help and made his way to the back of the store to find you in the midst of committing this offence. He told you to get off her and you looked up and then ran towards the door. Your memory is that you said to him 'Fuck off dog'. An attempt was made by other male customers to block your path but you punched one of them causing him to fall and then fled the scene.
34 In your attack on her BC suffered multiple bruises, scratches and abrasions to her head, face, neck, shoulder, hip and back. The psychological and emotional injuries you inflicted on her and her family were very severe. Indifferent to her fate, you left the scene unware as to whether you had killed her or not. You later asked the interviewing officer whether she was still alive. In my view, the urges which led to you to commit similar offences in 2002 and 2003 which I will shortly describe were operating on you when you attacked BC. Your conduct was disgusting. From your record of interview, I suspect you would accept that description.
35 It was not long before the police realised who had committed these offences. On Thursday 19 March 2015 at about 7.30am, your case manager, Mr Igor Tomic, saw an image of the suspect for the murder in Doncaster and recognised that image as being you. At 11.26am on 19 March, you went to the Sunshine Corrections Office and, as a result, Mr Tomic contacted the police, who arrived and placed you under arrest. You were later examined by a Forensic Medical Officer, who was of the view that you presented with no obvious signs of psychiatric illness or thought disorder. You were subsequently interviewed and ultimately charged.
36 On that same day, 19 March 2015, the police conducted a record of interview with you. I have watched all of it and it is chilling, pathetic and sad. Your hostility was on full display. At the same time you were astonishingly co-operative with the interviewing officer. He hardly needed to ask questions. You talked about what you had done to Masa Vukotic as though it was done for some legitimate cause and almost something for you to be proud of.
37 In summary, during that interview you identified your need to kill several people in affluent areas in order that your plight in custody and the so-called corruption of the wealthy classes be highlighted. You described wanting to stab someone while in the CBD on the day of killing Masa Vukotic, but you were worried people thought you might be homeless. You then described stabbing Masa Vukotic and being interrupted by a dog barking. The stabbing was completely random. You chose someone to be the victim without any logic except your desire to do harm and violence. You said you were planning the killing for days beforehand. You said you knew you were going to do something bad. The location of the killing was important to you - it needed to be somewhere where, because of the affluence of the area, it would have the most effect. You expressed some concern about your lack of experience in murdering people, because your original plan had been to murder more than one person to make whatever tortured point you could make.
38 You also gave a detailed description of the offences which constitute charges 2 and 3. You then recount the rape of BC in the bookshop. Before doing so you observed that at that stage you regarded your life as unsalvageable. You described your actions without the slightest sign of regret or remorse. You included in the description of this offence the way in which you taunted BC about her religion as you were raping her.
39 At the conclusion of the interview, you were informed you would be charged and asked whether you wished to say anything in response. You apologised to the 'innocent one', referring to Masa Vukotic, describing her that way because you did not realise she was so young. You were thoroughly indifferent to the fate of your other three victims, particularly BC.
40 Murder is, of course, the most serious offence known to our criminal law thus carrying a maximum penalty of life imprisonment. Rape, likewise, is a serious offence with its maximum penalty of 25 years' imprisonment. Similarly, the charges of robbery and attempted theft, albeit less serious than murder and rape, carry penalties which make them serious criminal offences.
41 The murder you have committed is extremely serious because you killed a vulnerable young woman, chosen at random from whom you concealed your presence and murderous intentions until it was too late. You committed the offence of rape purely for sexual gratification hoping that it might sustain you throughout the inevitably lengthy prison sentence you knew you faced. That offence was also committed spontaneously and once more against a victim chosen at random. BC was doing no more than going about her usual daily job in a bookstore. You committed the offences of robbery and attempted theft almost as a matter of course.
42 In this matter, twelve victim impact statements were filed and some were read to the Court. The deponents of the statements were as follows:
43 Four of these statements were read aloud in Court and I have carefully read the balance of the statements. There is little I can say that will lessen the suffering of these people. These victim impact statements highlight the catastrophe that is a case like this. They show that the effect of your fatal and violent actions will last a lifetime for these people. They illustrate that the sentence to be passed on you can never repair the damage they have suffered and which you have caused. For the families of you victims, particularly, the wounds of your violent conduct have developed into sadness and trauma that detracts from every aspect of their lives. However, these statements also show the empowering qualities of dignity and courage of which each person should be proud. They demonstrate resilience even in the face of your extreme conduct and hearten the faith of the community in the human spirit.
44 I have taken these statements into account in determining the sentence that should be imposed on you.
45 Your earlier criminal history began in 2002 when you were 18 years old.
46 On 11 October 2004, in the Melbourne County Court, you were sentenced to a total effective sentence of 8 years 2 months to be served by way of hospital security order under s 983(1)(e) of the Sentencing Act, as it then was. The Court fixed a minimum of 5 years and 6 months to be served before eligibility to apply for parole. You had already served 465 days of pre-sentence detention. This sentence was for the following offences committed on various dates between 2002 and 2003:
47 Your sexual offending involved six victims aged from 13 to 45 years. Your behaviour was predatory but you ultimately presented yourself to police in an apparent attempt to somehow redeem yourself. The sentencing judge was satisfied that at the time you committed these offences you suffering from the psychotic symptoms of your schizophrenic illness though Dr Douglas Bell, who was one of several psychiatrists providing reports, did not conclude that there was a simple, direct causal relationship between your symptoms and the offences.
48 The detail of some of your previous criminal conduct has a significant resemblance to the offences for which you are now to be sentenced with the important exception that your present offending includes murder. The earlier offences involved female victims chosen at random often as you drove around in a motor vehicle looking for what you described as a 'buzz' or a 'rush'. In one case an attack occurred in the presence of the victim's children, who at one stage you threatened to murder. In several of the other incidents for which you were sentenced your conduct was very similar to the sexual attack you launched against BC. You reported feeling that familiar 'rush' from this conduct, just as you had experienced over 10 years previously.
49 On 16 January 2012, at the Heidelberg Magistrates' Court you were sentenced to four months' imprisonment for recklessly causing injury. That arose from you having assaulted a female psychologist at the Victorian Institute of Mental Health.
50 On 4 May 2012, in the County Court at Melbourne, as a result of an application for a supervision order pursuant to the Act, you were found by the Court to be an unacceptable risk of committing a relevant offence. It was ordered that you be subject to a supervision order for 10 years with some 23 conditions attached to the order. The essence of the conditions was supervision of you over all your daily activities. You were restricted as to where you could live, where you could go and with whom you could have contact. You were required to attend for assessment and treatment. You were liable to be tested for drugs and alcohol. One, amongst the large number of conditions, required you to reside at Corella Place, Ararat, with an evening curfew in place. Your time at Corella Place did not go well.
51 On 14 January 2013, in the Ararat Magistrates Court, as a result of your actions as Corella Place, you were sentenced to a total effective sentence of three years' imprisonment for nine counts of criminal damage and one count of unlawful assault, these offences having occurred on 20 December 2012. Your conduct involved damage to buildings and motor vehicles. The damage bill was just short of $50,000.00.
52 You appealed against the sentence to the County Court sitting at Ballarat and, on 17 June 2013, that sentence was set aside and an aggregate sentence of 10 months' imprisonment was substituted. In accordance with principle, the sentencing judge was of the view that your "mental health deficits were causally connected to your conduct" thus resulting in a "sensible" moderation of the principles of specific and general deterrence.
53 On 15 April 2014, in the Ballarat Magistrates' Court, you were sentenced to nine months' imprisonment for the offences of intentionally cause injury, assault and criminal damage.
54 As is now well known, you were released into the community on 2 October 2014. You claimed in your record of interview that you told the authorities on your release that you would commit the crime you have committed and that it would be their fault. I need to say a little more about this because you were given the freedom to commit these offences in circumstances where that should never have occurred.
55 Given that the supervision order made by the County Court I have referred to was in effect at the time and was to remain in effect until May 2022, how you were permitted to be released into the community following completion of the final sentence imposed on you is astonishing. Since the making of the order you had been sentenced for offences of violence twice and recently for charges of threatening to kill a prison officer at Port Phillip Prison. I will return to that last matter shortly but, as I have already noted, as at 17 March 2015 you were on bail for those offences.
56 According to order 7(a) of the supervision order you were required to reside at Corella Place, Ararat, throughout the period of supervision or 'where otherwise directed by the [Adult Parole Board]'. The residence the Adult Parole Board otherwise directed you to reside at appears to have been an unsupervised residential flat in Albion. I can only assume you were not returned to Corella Place because of the way you behaved while you were there, including the 10 separate charges you were convicted of in December 2012 whilst a resident. Nonetheless, the supervision order pronounced by the County Court in May 2012 remained in force. If there were difficulties concerning returning you to Ararat there were a number of options open to the Parole Board any number of which would have been more appropriate than releasing you unrestrained into the community. This is particularly true considering your increasing volatility, as noted by Mr Tomic and your re-offending. Without being definitive, two such options included:
(a) Pursuant to order 8(b) of the supervision order, directing that you reside at a residential facility within the meaning of the Act and, whilst residing at a residential facility, to comply with monitoring in the form of electronic monitoring; or
(b) Pursuant to Part 5 of the Act under which the order was made it could, and should, have been reviewed upon your release from custody and, if necessary, an application made by the Director of Public Prosecutions to this Court for an interim detention order.
57 The decision to release you into the community in October 2014 was arguably consistent with the discretion given to the Parole Board under order 8(b) of the supervision order. However, notwithstanding the legislative direction that the Board's directions constitute a minimum interference with liberty, privacy and freedom of movement, the Board was required by s 20 (2)(b) of the Act to 'ensure that any directions it gave were reasonably related to the gravity of the risk of the offender reoffending'.
58 The decision to release you in to the community could not have had much, if any, consideration to your likely risk of reoffending. It was known that since your release from prison you had not commenced treatment. It was known that you were in need of 'violence interventions' to prepare for treatment. It was known you had violent tendencies which you admitted. To leave you effectively unattended in the community in the condition you were in in October 2014 was extraordinary. Executive government, through whichever instrumentality was appropriate, has both failed to treat you and, as these terrible crimes demonstrate, failed to protect the community from the danger you clearly posed with tragic results.
Personal circumstances, mental assessments and prospects of rehabilitation
59 It is necessary to deal in some detail with your personal circumstances, your historical mental state and the outlook for your future such as it is.
60 Your early life was very difficult. You were born on 2 February 1984 in New South Wales and are the eldest of two children. Your younger brother is Dean. You are now 32 years old. On the various accounts you have given to professionals over the years your childhood was very difficult. Your birth was apparently physically onerous and you were left with developmental consequences as a result.
61 Your parents, though separated since you were five years old, are still alive. When they separated you remained with your mother, who went on to form a number of relationships with different men, many of which were violent. One such relationship involved a prison officer. It was perhaps whilst witnessing this violent relationship unfold that your contempt for authority and, particularly prison officers, began to fester.
62 Neither of your parents lives in Victoria. As a child you were the victim of repeated and persistent sexual abuse and violence which became, what is described in the literature, as 'normalised'. You had difficulty with your primary and secondary education, which seems to have ended when you were aged 15. You regularly moved from one school to another.
63 When you finished school you moved to Melbourne to live with your father. Between the ages of 15 and 19, you worked for some time and also trained in a form of martial arts. Also at the age of 15 you began using marijuana. In the following years you used other drugs. Having begun to use drugs at 17, by 19 you were in need of mental health services. In the months immediately preceding the commission of these offences alcohol was consumed by you to excess.
64 By way of summary of your circumstances, I refer to the comments of Mr Guy Coffey in his report of 7 December 2015. He said that you were "...bequeathed with almost every conceivable developmental contribution to adult mental disorder", which he then itemised. Included in his list was a family history of mental illness. Further, you suffered perinatal head trauma. There was violence between your parents and their partners. You were physically and sexually abused. You regularly changed schools and had learning difficulties. You then abused drugs. By the latter part of your teenage years you exhibited signs of psychotic illness.
65 Between February 2002 and June 2003, you committed a series of violent and sexual offences to which I have already referred which resulted in you being in custody by way of hospital security order at age 20 from 2003 until your release on parole in November 2010. You had pleaded guilty. The sentencing judge took into account your schizophrenia and moderated the effect of the principles of specific and general deterrence under the legal principles as they applied at that time.
66 During that time, you were sent to the Thomas Embling Centre on four occasions due to your psychosis. These periods were defined by persecutory and religious delusions, as well as auditory and visual hallucinations, including commands to stab people. You were prescribed medication with which you were non-compliant and the hallucinations continued. In your submissions during this hearing you said you had made the decision to refuse treatment that was not, as you put it, offence-specific. You said you received no treatment since 2010. During your time at Thomas Embling, you were involved in the assault of other prisoners and staff.
67 Your release into the community in November 2010 was difficult for you and you had trouble coping. You were isolated and abused alcohol to excess. Less than a year after your release, your parole was breached when you assaulted a Forensicare psychologist and went back into custody for the offence of recklessly causing injury. In the period that followed you did not receive effective treatment for your psychotic illness. You were angry at the Department of Corrections and your potential risk of violent re-offending was observed and recorded by a number of mental health professionals at the time.
68 In May 2014 you were assessed by Professor James Ogoloff. This was as part of the review of your extended supervision order made in May 2012. In summary, Professor Ogoloff described you as having a longstanding history of unstable mood, feelings of anger, hopelessness, thoughts of self-harm and harm to others. Your psychotic illness, he noted, may date back as far as the age of 16 years. He concluded that you were a most difficult case. He diagnosed schizophrenia and anti-social personality disorder. Your offending, though, was not driven by mental illness alone. Professor Ogoloff described your risk of re-offending sexually as moderate but said you have a high degree of instability and impulsivity. He referred to the difficulties associated with you living in the community and similarly with you remaining at Corella Place. If you were to be maintained in the community then he thought you needed a high level of ongoing professional support.
69 It was thus decided that you would be released into the community and that occurred on 2 October 2014. On that day you were arrested by police and interviewed about the offences of threatening prison staff at Port Phillip Prison in September 2014. You apparently admitted making threats claiming they were necessary to attract attention so you could report mistreatment inflicted on you by prison staff. Having been charged you were admitted bail on your own undertaking and required to appear in the Sunshine Magistrates Court on 20 November 2014. On that day your bail was continued by the court and the curfew which had been in place was removed. You were required to report to police once a week.
70 After your release on 2 October 2015, you moved into the premises in Albion where you were living at the time you committed these offences. You then seemed to become the responsibility of Mr Igor Tomic of the Department of Corrections. In February 2015 he requested funding to enable a private forensic psychology service to implement a number of 'interventions' to assist you with your violence, anger and aggression. Between your release in October 2014 and February 2015, you had not commenced any treatment despite being at the three year mark of a ten year supervision order a condition of which required you to participate in treatment or rehabilitation programs as directed. In addition you were on bail for the offences of threatening to kill.
71 Your contact with the Department of Corrections was with Mr Tomic who is a principal practitioner. During this period he was concerned you had not commenced treatment since your release. Various programs for your participation were considered. They were either unsuitable or only available in a custodial setting. Mr Tomic urged that alternative treatment options be explored. He requested funding for a three month period so you could be treated by a private psychological service. You were not demonstrating psychotic symptoms so medical treatment did not occur.
72 In relation to these offences you were assessed on 21 July 2015 by Dr Zimmerman, who is a forensic psychiatrist. That was done at the instigation of your legal team. She noted the diagnosis of paranoid schizophrenia and concluded that your psychotic illness will, in all likelihood, deteriorate in custody. She urged that there be regular psychiatric review.
73 Whilst Ms Fox was making submissions on your behalf, she foreshadowed a reliance on the principles in R v Verdins[1] in relation to the charge of murder, in particular those described in principles 3 and 4 concerning general and specific deterrence. Ms Fox specifically excluded charges 2, 3 and 4 on the indictment from that submission. In support of that submission, Mr Guy Coffey was to be called to give evidence, but that never occurred. On 7 December 2015, Mr Coffey prepared a detailed report for your lawyers.
74 I have read and considered Mr Coffey's report and other reports. The submission of Ms Fox was intended to be that your moral culpability was lessened because, as at 17 March 2015, you had a disordered personality which laid the emotional foundation for your intent to kill Masa Vukotic. It is important to note that the submission was not to be based on any aspect of your schizophrenic condition causing as it has symptoms such as delusions or visual and auditory hallucinations. It appears clear from the material that you were not psychotic at the time you committed the murder of Masa Vukotic and had not been in the months leading to these offences. Your schizophrenia had no causative link to your actions.
75 Ms Fox submitted that the principles in Verdins nonetheless applied because your reason for committing the murder of Masa Vukotic was motivated by a belief you held that was irrational and causatively connected to your disordered personality. That submission having been made by her, you promptly terminated Ms Fox's retainer. Indeed, you did that as that part of her argument was being developed. You then told me that you wished me to ignore all that had been put on your behalf by Ms. Fox. You also said you wished to apologise for your crime and you appeared to decline to rely on the Verdins principles, as Ms Fox had foreshadowed.
76 Whilst I consider I have some obligation to consider the issue of Verdins, especially since you became unrepresented before Ms Fox had finished her submission on the issue, the psychological information, particularly from Mr Coffey, leads to the conclusion that at the time of this murder of Masa Vukotic you were not psychotic and you were not experiencing delusions or hallucinations leading to any conclusion that your mental functioning was impaired. If there had been symptoms of such a condition they would have been evident during the record of interview and, according to the analysis, they were not. You were not acutely psychotic or grossly disorganised at the time. Mr Coffey concluded that your intent to kill was connected with your disordered personality.
77 For a variety of reasons, the senior prosecutor submitted that Verdins did not apply. I respectfully agree. Having examined the material, I am not persuaded that at the time you murdered Masa Vukotic, you were suffering from an impairment of your mental functioning so as to justify moderation in the application of the sentencing principles of specific and general deterrence.
78 Whilst a personality disorder may be relevant as part of your circumstances, and may bear upon the assessment of your moral culpability by explaining why you behaved as you did, as I understand it the principles of Verdins cannot be called in aid to reduce the significance of specific or general deterrence because such a condition does not represent an impairment of your mental functioning.[2]
79 Furthermore, there are other sentencing considerations which are particularly significant in this case. First among those is the need to protect the community from you - that is a paramount consideration. In addition, over the more than ten year period prior to these offences and following very serious earlier offending, you had been regularly non-compliant with the various treatments which had been prescribed and offered to you, including medication. Instead of complying with the treatments proposed by medical professionals you self-medicated often with alcohol. Whether as a consequence of your own decision to decline treatment or the absence of effective treatment options available, your psychological issues have never been adequately addressed. Had this occurred a tragedy may have been avoided.
80 Therefore this is a case where your mental condition provides a context for your conduct but does not engage the particular considerations identified in Verdins so as to affect the significance of specific and general deterrence.
81 No submission was made to this effect but I acknowledge that in accordance with principles 5 and 6 of Verdins your mental condition as at today's date will mean that the sentence I impose on you will weigh more heavily on you than on a person in normal health. It is of considerable concern to me that in all likelihood your condition will probably deteriorate. I have taken this into account.
82 During the course of the plea heard on 14 and 15 December 2015, and in written submissions, the senior prosecutor accepted that you could not be sentenced for the offences of murder and rape in this matter as a serious violent offender because the custodial sentence that was imposed on you for your violent sexual offending on 11 October 2004 by the County Court took the form of a hospital security order. It was accepted that such an order was not a sentence of imprisonment for the purpose of section 6B of the Sentencing Act 1991.
83 However, on 18 February 2016, the prosecution sought to amend that submission because after the hearing of the plea in December 2015 you were later dealt with in the Magistrates' Court at Sunshine for the offence of making a threat to kill for which you received a further term of imprisonment. The prosecution have argued that as a result you now fall to be sentenced as a serious violent offender. The consequence of that is that I must consider the protection of the community as a primary consideration in sentencing you and I may impose a disproportionate sentence on you in order to give effect to that consideration.
84 In your written submissions you took some issue with that argument and made reference to the sentence imposed by Nettle JA in R v Coombs,[3] which the prosecutor had relied on to indicate how a serious violent offender might be sentenced. It is enough to say that I agree with the prosecutor's submission, notwithstanding the differences between that case and yours, which you pointed out in your written submission. Pursuant to section 6B(2)(b) of the Sentencing Act 1991, a serious violent offender means an offender (other than a young offender) who has been convicted of a serious violent offence for which he has been sentenced to a term of imprisonment or detention in a youth justice centre. Section 6B(1) defines a serious violence offence as an offence to which clause 3 of schedule 1 applies. Contained in that schedule is the offence of make threat to kill, the offence you were charged with and subsequently sentenced to a term of imprisonment for. The law is clear and, in the circumstances, you do fall to be sentenced as a serious violent offender.
85 The prosecution relied on these provisions as an additional means by which a sentence of life imprisonment without the option of release on parole could be justified which I will return to shortly
86 Denunciation, as well as specific and general deterrence, are very significant amongst the sentencing considerations that apply to you. Those considerations are highlighted by the important need to protect the community from you. You are now, and have been for some time, a significant threat to the safety of the community. That will remain the case for some time. It is beyond my abilities to predict or even guess how you will progress or develop in custody. Since you are to be sentenced as a serious violent offender, I am required to regard protection of the community as the principal purpose for which the sentence is to be imposed. I will impose a sentence which gives effect to that consideration.
87 As I have indicated, I have watched your record of interview. You made full and complete admissions about your offending and showed almost no remorse. Indeed, as I have already said, much of your description of the murder of Masa Vukotic was delivered with an air of boasting and performance. The only exception was that you appeared to regret the fact that Masa Vukotic was aged 17. That was a younger age than you assessed her to be. Had she been 18 or older, in your opinion that would have been acceptable. At the end of the interview, faced with an opportunity to express some form of regret for what you had done, the best you could do was to say that an apology would not bring Masa Vukotic back and that, although she suffered, it was not for long.
88 In my view, your pleas of guilty to these charges were no more than a reflection of your acceptance that there was no ground for a contest and that you faced a long sentence. The case against you was overwhelming and you well knew it. I see very little sign of remorse for what you have done apart from the fact that in your submissions[4] you offered an apology for what you had done and seemed to have some understanding of the impact of your actions.
89 A significant amount of evidentiary material has been assembled in the form of reports to which I have already referred. No evidence was given during the plea. Some of the material deals with issues relevant to the question of whether you have any realistic prospect of rehabilitation. Your history is very unfortunate for all the reasons that Mr Coffey identified. Your start in life was severely disadvantaged.
90 In 2014, Professor James Ogoloff described you as then being a moderate risk of reoffending sexually. You displayed, he said, a high degree of instability and impulsivity. He suggested then that if you were to be in the community you would have needed a high level of ongoing professional support. On 5 November 2015, the clinical psychologist Martin Jackson suggested that your prospects of rehabilitation were related to your mental health condition and personality traits. On 7 December 2015, Mr Guy Coffey expressed the view that although specialist treatment is capable of improving your mental health it would be speculative to make any prediction about whether treatment can reduce the level of risk of violent re-offending from high to moderate or lower over the course of the next ten years. In the absence of treatment there is, in his opinion, a high risk of violent re-offending.
91 Mr Coffey's conclusions were guarded. He did say, however, that the risk of you reoffending at present is high. He also concluded that your mental health has deteriorated since committing these offences.
92 I am unable to say anything positive about your prospects for rehabilitation. You have committed horrendous crimes and yet you are a relatively young man in need of a great deal of assistance. I have no confidence you will receive the assistance that you require.
93 Some crimes alarm the community to such an extent that they must be reassured that such conduct will not be tolerated or afforded any latitude and that a Court such as this will be rigorous in the way it examines whether there are any genuine prospects of a real and effective rehabilitation capable of rendering the protection of the community a counter veiling consideration. General deterrence and specific deterrence are of substantial significance in a case such as this. Notwithstanding your plea of guilty, your crimes fall into the worst category of offending for a number of reasons:
(a) You have a significant and violent criminal history from which, in my opinion, you have not progressed;
(b) The crimes you committed were planned with some care and you ruminated on the prospect of murdering a person to be chosen at random for some days;
(c) The victim you chose was entirely innocent and chosen at random by you in pursuit of some narcissistic cause relating to your own grievances;
(d) The victim you chose was young at age 17 with a positive, productive and happy life in front of her;
(e) Your act of killing her was at the extremity of brutality;
(f) You have no appreciable remorse or regret for your act of murder and the enthusiasm with which you described the killing of Masa Vukotic highlights the need for community protection;
(g) The only consequence of the murder of Masa Vukotic you considered was the consequence for yourself, as a result of which you committed other offences, including the rape of BC.
(h) You then committed two other offences which are charges 2 and 3 involving violence. Whilst less serious than the conduct for charges 1 and 4, they also were committed at random because you wanted money and you wanted a motor vehicle. The victims were put in fear but both had the courage to resist you.
(i) The rape of BC was a very serious offence - violent and callous. It emulated offences you had committed 10 years earlier and demonstrates that you have made no progress in that time;
(j) You are without any form of remorse for any of these crimes;
(k) Your immediate prospects for any form of rehabilitation are bleak at best if not non-existent;
(l) In the absence of appropriate treatment, you are now and will remain a significant danger to the community for the immediate future.
94 On the other hand you are now 32 years of age. You are, in many respects, a product of your extremely difficult background. In addition, I am constrained to say that you should never have been left in a position where you could so easily commit these offences as your roamed around the metropolitan area of Melbourne unrestrained and unaccountable. There were many red flags to indicate that the risks of leaving you to your own devices were very significant and likely to involve violence but nowhere near enough was done. This is a tragic most case.
95 On the charge of murder of Masa Vukotic, you will be sentenced to be imprisoned for life. On the charge of the rape of BC, you will be sentenced to be imprisoned for 14 years. On the charge of attempted theft, you will be sentenced to be imprisoned for 6 months. On the charge of robbery, you will be sentenced to imprisonment for 18 months.
96 The total effective sentence is therefore life imprisonment. Section 6E of the Sentencing Act 1991 provides that every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise directed, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term. Given that the base sentence in the total effective sentence is life imprisonment, there seems no point in making such an order.
97 Section 11 of the Sentencing Act 1991 provides that in a case like yours I must, as part of the sentence, fix a period during which you are not eligible to be released on parole unless I consider that the nature of the offences or your past history make the fixing of such a period in appropriate. I note in passing that in reaching a conclusion on this issue and your sentence generally I have ignored the provisions in the Sentencing Act 1991, which might be described as the baseline provisions.
98 The prosecution has urged me not to fix a non-parole period. It would be an exceptional step to refuse to set a minimum term because, among other reasons, mercy has an important role in the sentencing process. I have given anxious consideration to this difficult question. The submissions in favour of not fixing a minimum term have merit. Clearly such a term, were I to fix one, would have to be very substantial and involve little more than a guess as to whether you would then pose a potential risk if released into the community. I have considered other cases where this Court declined to fix a minimum term for offenders being sentenced for murder. I have come to the conclusion that given your history and age I am unable to exclude an element of mercy and hope from your sentence, however remote that may seem to you. It is often said that the civilisation of our community is judged by the way we treat people like you despite the fact that you cared not at all for the victims of your crimes.
99 In all the circumstances I have decided to fix a period, before the expiration of which you will not be eligible for release on parole, of 38 years.
100 I declare that you are sentenced on the charge of murder as a serious violent offender pursuant to s 6F of the Sentencing Act 1991.
101 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the charges on the indictment I would have sentenced you to life imprisonment and would have declined to fix a minimum term.
102 Pursuant to s 18 of the Sentencing Act 1991, I declare the number of days of pre-sentence detention to be reckoned as time already served as 294 days and I direct those details be entered in the records of the Court.
103 Pursuant to s 78(1) of the Confiscation Act 1997, I order the disposal of certain property sought by the Crown and not opposed on your behalf.
[2] See R v O'Neill [2015] VSCA 325 at para [71]
The Queen
Price [2016] VSC 105