The Queen v Stoneham [2013] VSC 661

Supreme Court of Victoria|2013-11-29|Before: Croucher J

CRIMINAL LAW - Sentence - Murder of 20-year-old woman by 21-year-old former boyfriend - Premeditation - Accused searched internet on murder and murder sentences before killing - Accused bought a knife for the purpose of killing - Accused stabbed deceased once to neck with knife - Plea of guilty - Remorse - No prior convictions - No history of violence - Mental illness at time of offence - Hardship of imprisonment - Youth - Good prospects of rehabilitation - Weight to general deterrence, denunciation and just punishment moderated on account of mental illness - Community protection - Specific deterrence - Rehabilitation - Parsimony - Current sentencing practices - Submissions on range - Sentence of 19 years' imprisonment with a non-parole period of 14½ years - But for plea of guilty, sentence of 25 years' imprisonment with a non-parole period of 20 years - Sentencing Act 1991 (Vic), ss 5, .

1 On 22 August 2013, almost a year after he killed Adriana Donato, James Stoneham pleaded guilty in this Court to Ms Donato's murder. On 11 November 2013, he confirmed that plea of guilty. The same day, the matter was opened and a plea in mitigation of penalty was heard.

2 Shortly, I will impose sentence. My reasons for that sentence are as follows.

3 The circumstances of the offending were outlined in a written Summary of Prosecution Opening (Exhibit 1). Mr Rochford SC, who appeared for the Director of Public Prosecutions, opened the matter by reading from that document. He added to the opening in the course of the hearing by advising me of other matters and referring to some photographs (Exhibits 2 and 5).

4 Mr Morrissey SC, who with Mr Wraight appeared for Mr Stoneham, tendered two reports of psychiatrist Dr Anthony Cidoni, a report of psychologist Patrick Newton, clinical notes of Orygen Youth Health Inpatient Unit and clinical notes of the Acute Assessment Unit at Melbourne Assessment Prison (Exhibit A) and a bundle of written references (Exhibit B).

5 I have supplemented Mr Rochford's summary with information from these sources and other information contained in the depositions and received on the plea.

6 Adriana Donato was born on 21 October 1991. She was murdered on 23 August 2012, about two months before her 21st birthday. Ms Donato lived with her parents Graziella and Giuseppe Donato and her brother Nicola at the family home in Avondale Heights.

7 James Stoneham was born on 11 March 1991. He was 21 at the time of the murder. Mr Stoneham was born in Sri Lanka but was adopted as a baby by Julie and Alan Stoneham. Mr Stoneham lived with his adoptive parents and his brother Morgan at the family home in Essendon.

8 Mr Stoneham and Ms Donato met whilst they were at secondary school together at Penleigh and Essendon Grammar. They formed a relationship in about Year 9. They broke up and got back together a few times. The relationship was described as turbulent at times but was never violent and lasted about five years. In December 2011, Ms Donato finally ended the relationship.

9 Mr Stoneham did not react well to the break-up. In fact, he was distraught. He developed significant depressive symptoms, including prominent suicidal ideation. Those symptoms became particularly intense from February 2012. On one occasion, he attempted suicide by taking an overdose of pain killers with nail polish remover. Another time, he took methylated spirits with sleeping pills and sat on the edge of a bath with a hair dryer ready to drop it in. He was taken to hospital and then referred to Orygen Youth Health, where, on 19 February 2012, he was assessed as having an adjustment disorder. He was referred to community treatment but his condition worsened.

10 On 24 February 2012, Mr Stoneham was admitted as a psychiatric inpatient at Orygen Youth Health Inpatient Unit after making further attempts on his life by overdose. After five days, Mr Stoneham absconded from the ward and refused readmission. During this period, a psychiatrist diagnosed Mr Stoneham as having a major depressive episode. The discharge summary stated his diagnosis as "[d]epression, pre-admission suicidality in [the] context [of a] relationship breakdown ... [and a possible] adjustment disorder". He was prescribed the antidepressant fluoxetine (or Prozac), which he continues to take.

11 On 27 March 2012, Mr Stoneham was readmitted as an inpatient at Orygen Youth Health Inpatient Unit after making further suicide attempts. One involved taking tablets and methylated spirits and sitting in a bath with the intention of dropping a hair dryer into the water.[1] Another involved taking rat poison mixed with yoghurt with the intention of jumping onto a freeway. A third involved his planning to jump off a cliff. After being found at the cliff, he was ultimately taken to hospital by police under s 10 of the Mental Health Act 1986 (Vic) and then referred to Orygen. He was released two days later, on 29 March. The dosage of his antidepressant medication was increased.

12 On 21 March 2012, Mr Stoneham had commenced treatment sessions with psychologist Dr Gregory. He saw her for a total of 14 sessions over the next five months.

13 In the opinion of Mr Newton, Mr Stoneham appeared to be making good progress during that period. However, it is plain that things deteriorated in August.

14 On the night of 1 August 2012, Mr Stoneham smashed the passenger-side window of Ms Donato's car while it was parked outside her family's home. The next day, Mr Stoneham sent a text message to his friend Zane Miller, with a photo of a handwritten note reading "Derek owes George, Kathy is Lillie Livered LNWOTB". The Crown says LNWOTB stands for "last night was only the beginning", which was a reference to the damaging of Ms Donato's car. Mr Rochford also submitted that the message showed that Mr Stoneham was planning a campaign of intimidation of Ms Donato. Mr Morrissey did not dispute the Crown's interpretation of LNWOTB and conceded that the message was an expression of hostility towards Ms Donato.

15 On 2 August 2012, Mr Stoneham conducted internet searches using the search criteria "Murder (Australian Law)" and "chloroform". Similar behaviour continued. Between 2 and 22 August 2012, he conducted a number of internet searches on his laptop computer using the following search criteria: "hunting stores in Melbourne"; "Trophyarms.com.au"; "Centreaway firearms"; "bow stores Melbourne"; "archery stores near Melbourne"; "murder songs"; "ways to climb a vertical wall"; "ways to break a window quietly"; "how to pick a lock"; "how to climb a drain pipe"; "tile remover"; and "pulp hooks". The Donato family home was a large two-storey premises with Ms Donato's bedroom being on the upper floor. Mr Stoneham also conducted Google street view checks on Ms Donato's address and attempted to access her Facebook page on a number of occasions during that same period.

16 At a counselling session with Dr Gregory on 13 August 2012, Mr Stoneham reported on-going difficulties with anger and aggression and referred to having thoughts of harming someone. He denied having a specific plan but refused to disclose any details of his thoughts. He was asked to guarantee that he would not act on any thoughts beyond the next two weeks but was unable to do that. An appointment was made for him to have a further counselling session on 22 August 2012.

17 On 17 August 2012, Mr Stoneham went to a firearms store known as Trophy Arms, on Mount Alexander Road in Essendon. Whilst there, he bought a skinning knife for $125. The knife is shown in photographs 24 and 25 of Booklet 1 (Exhibit 2). In the present context, it is fearsome looking weapon with a sharp hook on the opposite side of the sharpened blade.

18 At about 6:00 p.m. the same day, Ms Donato ran into a friend, Declan Haratsis, at Southern Cross Railway Station. They travelled by train together to Essendon and discussed what they were doing. Mr Haratsis was also a friend of Mr Stoneham. He rang Mr Stoneham and told him of the chance meeting with Ms Donato. Mr Stoneham expressed interest in where he had seen Ms Donato, where she was working and what her movements were. When Mr Haratsis asked why he was interested, Mr Stoneham said, "Because I was planning to kill her tonight".

19 Later that same day, Mr Stoneham went to the home of Declan Haratsis and produced the skinning knife he had bought earlier. He told Mr Haratsis that he had bought it to kill Ms Donato. Mr Haratsis then seized Mr Stoneham in a headlock and dragged him into the kitchen where Mr Haratsis and his father took the knife from him. After they calmed Mr Stoneham down and discussed the matter with him, they returned the knife. Mr Stoneham then left.

20 On 22 August 2012, Mr Stoneham attended the next scheduled counselling session with Dr Gregory. He reported that his anger had decreased and that he was settled, with no thoughts of aggression towards others. He indicated he was "future-focused", including having plans to save money in order to travel overseas in 2013. A further appointment was made for 3 September 2012.

21 At 10:15 p.m. on the same day, Mr Stoneham used his laptop computer to conduct numerous searches using Google to view Ms Donato's street, family home and surrounds.

22 On 23 August 2012, Mr Stoneham attended work from 10:00 a.m. until 7:00 p.m. Analysis of his iPhone indicated that, during that period, he conducted internet searches on the following criteria: "What is the sentence for murder in Australia?"; "What is the time in prison for murder in Australia?"; and "Murder (Australian Law) Wikipedia".

23 At 8:05 p.m. the same day, Mr Stoneham became aware of a 21st birthday celebration at the home of a person he knew in Cliff Street, Essendon. Ms Donato went to the same party. She was picked up from her home by a friend and driven to that address at about 10:00 p.m.

24 At 9:54 p.m., Mr Stoneham telephoned his friend Will Dredge and asked him to get Ms Donato to come outside the house in Cliff Street on a pretext, without telling her that Mr Stoneham was outside. After a number of other phone calls were made to him by Mr Stoneham, Mr Dredge eventually complied with this request. He saw Mr Stoneham approach Ms Donato after they got outside of the front gate of the house. Mr Stoneham spoke to Ms Donato. They both walked to Mr Stoneham's car, got in and drove north in Cliff Street. Mr Dredge attempted to call Ms Donato but her phone was not answered. He then called Mr Stoneham and told him to bring her back. Mr Stoneham said he wanted to speak to her for about ten minutes and would then bring her back.

25 Zane Miller spoke to Mr Dredge by telephone after he returned to the party. Mr Miller then rang Mr Stoneham. Mr Stoneham's telephone was on loud speaker and he could hear Ms Donato crying in the background. When he asked if everything was okay, she said, "Nah, I'm scared he has a knife". Mr Miller then asked where they were and Ms Donato told him they were down the river. When Mr Miller attempted to clarify exactly where they were, Mr Stoneham cut in and said, "No, you can't come down", and then ended the call after repeating that a number of times.

26 Mr Stoneham had driven to Afton Reserve in Aberfeldie and parked his car in the parking area. He and Ms Donato walked along a gravel walking track for approximately 130 metres. Mr Stoneham had with him the skinning knife he bought six days earlier. With that knife, he stabbed Ms Donato in the neck, causing her fatal injuries. The stab wound was to the left side of her neck and incised her left medial clavicle and vertebrae and severed her carotid artery. The blade penetrated to a depth of seven to eight centimetres and punctured her right lung.

27 Shortly after this, Mr Stoneham telephoned Mr Miller. He was hysterical and said, "I've just done it, she's dead". He said he was near the Afton Street Bridge. Mr Miller attended there and found Ms Donato lying prone and motionless in a pool of blood. The knife was about half a metre away. Mr Miller contacted police.

28 When the police attended, Mr Stoneham was in the vicinity of the bridge. He held the knife to his throat, threatened to kill himself and made several requests for police to shoot him. Police officers confirmed that Ms Donato was deceased. They then negotiated with Mr Stoneham, telling him to drop the knife, which he eventually did. He then walked towards the police and was arrested without incident. At 11:35p.m., paramedics entered the scene and declared Ms Donato to be deceased.

29 Mr Stoneham was taken to the Moonee Ponds Police Station and interviewed. He said he had killed somebody, his ex-girlfriend Adriana. He claimed to have little or no memory of the actual incident saying, "I can't really remember, it's all a bit of a blur".

30 A post mortem examination was conducted on 24 August 2012. The cause of death was found to be a stab wound to the neck.

31 In sentencing Mr Stoneham, I am required to take into account and balance many competing considerations. Among those factors is the maximum penalty for murder,[2] which is imprisonment for life.[3]

32 Life sentences are not commonly imposed. Neither party suggested a life sentence should be imposed in the present case. I shall come to the parties' submissions on sentencing range shortly.

33 Another factor to which I must have regard is the impact of Mr Stoneham's crime upon Ms Donato's family and friends.[4]

34 Mr Rochford filed victim impact statements declared by Ms Donato's parents Mr and Mrs Donato; her brother Nicola; her aunt Marianne Scida; her cousin Annemarie Papaleo; family friends Gabriel Perconte and Barbara and Anthony Minuzzo; her god-sister Stefani Vasil; and her friends Alexandra Cusworth, Catherine Torpy, Alexandra Laval, Tahlia Roda, Meredith Bates, Katelyn Tadd and Kristen Mihai (Exhibit 4). Ms Donato's parents and her brother read their victim impact statements to the Court.

35 All of the statements are profoundly moving documents. They speak of the immeasurable grief, despair and misery felt at the loss of Adriana Donato; the tragic waste of a cherished young life full of potential; and the unfathomable nature of the crime.

36 Mrs Donato describes the loss of her daughter as "intolerable". She wishes it were all just a bad dream. Sadly, it is an all-too-horrible reality that permeates her thoughts.

37 Mr Donato describes how, soon after Adriana's death, he found himself following someone he believed was his daughter, only to find a confused stranger. He was then struck by the reality that his daughter was gone forever. He tells of the feeling of emptiness in his soul. He blames himself for not being there to protect her. Of course, he is not to blame - not one iota. No-one but Mr Stoneham is to blame for his actions. No-one could have foreseen what he did. But, understandably, that is how a parent feels.

38 At the time of her death, Ms Donato was about to graduate with a Bachelor of Science (majoring in zoology) from the University of Melbourne. She loved animals and was hopeful of working in an area connected with preserving the environment for future generations. In his victim impact statement, Mr Donato tells how the university conferred his daughter's degree posthumously, and presented the award to her brother Nicola. That was a decent thing to do.

39 Mrs Donato annexed to her statement a DVD played at her daughter's funeral. I watched the DVD in chambers. Unfortunately, I was not able to play it in court. The DVD contains beautiful photographs of Adriana Donato at various stages of her young life - as a baby, then a young girl, a teenager and a young woman. The photographs show an open-faced girl of whom her family and friends were - and always will be - justifiably very proud. Hopefully, the wonderful memories captured in those photographs will predominate over the awful loss suffered by Ms Donato's family and friends.

40 In sentencing Mr Stoneham, it is incumbent on me to have regard to the nature and gravity of the offence, and his culpability and degree of responsibility.[5]

41 Murder is the most serious crime in the criminal calendar. Mr Rochford submitted that the crime was committed in a chilling manner. That is an apt description. Despite the fact that Mr Stoneham was labouring under mental illness at the time of the offending, about which I will say more later, I regard this as a particularly serious and sinister example of murder, principally because of the premeditation involved.

42 This was not a spontaneous act of violence committed in the heat of the moment. Rather, for some considerable time before he murdered her, Mr Stoneham contemplated killing Ms Donato and planned very serious violence against her. He commenced that planning at least three weeks earlier by smashing her car window and by uttering a threat, to another, that this was only the beginning. Over the next few weeks, he researched the law of murder and ways that he might break into her home. About a week before the killing, he bought a skinning knife and told others he planned to kill Ms Donato with it. The day of the killing, he researched sentences for murder. Minutes before the killing, with the knife in his possession, he lured Ms Donato away from a party on a pretext. Soon afterwards, he stabbed her with that knife in a vital area of her body and killed her. Then he rang a friend and said, "I've just done it, she's dead".

43 All of those acts and utterances smack of brooding thoughts of killing Ms Donato and of a plan to do her at least very serious violence. It is disturbing that, only the day before the murder, Mr Stoneham told Dr Gregory that he had no thoughts of harming anyone and he was focussed on the future, whereas the truth was that, for the previous three weeks, he had been thinking of killing Ms Donato, and the very next day he was researching murder again.

44 I accept Mr Newton's evidence that, prior to and at the time of the offending, Mr Stoneham was both immature and in the grips of a major depressive disorder of severe intensity with psychotic features. Those afflictions reduce his moral culpability somewhat. But, in my view, as unwell as he was, his behaviour was still very calculated, and his culpability was still quite high.

45 The intention with which a murder is committed can also be relevant to an assessment of the seriousness of the particular crime. Mr Morrissey submitted that I could not be satisfied beyond reasonable doubt of an intention to kill at the time the stabbing occurred, despite the evidence of premeditation. He pointed to the fact that there was only the one stab wound and no attempt to inflict any further wounds despite the opportunity of doing so. Mr Rochford conceded that he could not point to any material to prove beyond reasonable doubt that there was an intention to kill at the time of the stabbing. However, he went on to submit that, in the present case, it would probably not make much difference to the gravity of the offence if there was only an intention to cause really serious injury.

46 As I said on the plea, whilst there will be cases where the difference in intention is a distinction of little or no consequence,[6] I do consider that, all else being equal, it is a more heinous thing to kill someone intentionally than it is to do so with an intention to cause really serious injury.

47 Given the submissions of Mr Morrissey and the concession of Mr Rochford, despite the evidence of premeditation, I am not satisfied beyond reasonable doubt that Mr Stoneham intended to kill at the moment he stabbed Ms Donato. Accordingly, I will sentence on the basis of an intention to cause really serious injury, which the plea of guilty necessarily admits, rather than an intention to kill.

48 That said, I consider that, given Mr Stoneham contemplated killing Ms Donato and planned to do her at least very serious violence in the period leading up to the murder, this is still a very serious example of murder.

49 Another factor that may impinge on the seriousness of murder is whether the killing was preceded by a history of violent or controlling behaviour in the context of a relationship break-up.

50 As Mr Rochford confirmed on the plea, there is no suggestion that Mr Stoneham was ever violent towards Ms Donato during their relationship.

51 However, there were features of the relationship that suggested an attempt at controlling behaviour by Mr Stoneham. In his report, Mr Newton noted that, each time the relationship broke down, the instability "serv[ed] to increase Mr Stoneham's desperation to ensure that the relationship was maintained [which] led him to become increasingly 'controlling' and restrictive of Ms Donato which in turn led to further instability".[7] On the other hand, it is apparent that Ms Donato was an intelligent, strong-willed and independent young woman well capable of dealing with such behaviour, which it might be said she did ultimately most effectively by ending the relationship.

52 I asked Mr Morrissey whether Mr Stoneham's motivation for the murder might be characterized by the notion "If I can't have her, nobody will". He submitted that the Crown had not urged any such conclusion; that there was no evidence of it; and that the explanation instead is to be found in his immaturity and his poor mental health at the time of the offending. Mr Rochford said nothing against that submission.

53 Yet it seems plain enough that Mr Stoneham was not only devastated by the break-up, but was also angry at Ms Donato as a result. However, I accept Mr Newton's opinion that Mr Stoneham's ability to deal with his emotions was compromised by his immaturity, his severe depression and psychosis.

54 In all the circumstances, I am not satisfied to the requisite standard that the offence was aggravated by any previous controlling behaviour on the part of Mr Stoneham.

55 However, for the reasons I have given, I do regard this as a very serious example of murder.

56 I now turn to the mitigating factors that I must take into account in sentencing Mr Stoneham.[8]

57 First, there is his plea of guilty. Whilst Mr Stoneham pleaded not guilty at the conclusion of his committal proceedings, that plea was made in the context of accepting committal to this Court by way of a straight hand-up brief. Subsequently, after his lawyers quite properly investigated possible defences such as mental impairment, Mr Stoneham pleaded guilty in this Court before King J on 22 August 2013. Thus, Mr Stoneham's approach to the matter obviated the need for a contested committal proceeding or a trial, and thereby spared witnesses the ordeal of giving evidence in contested proceedings, saved considerable scarce court, police and prosecutorial resources, and shows a willingness to facilitate the course of justice.

58 A plea of guilty that does nothing than more than avoid a committal hearing and a trial, and thereby spares witnesses and saves resources, is usually a significant mitigating factor simply because of those utilitarian considerations. Added to that, Mr Stoneham, at 22 years of age, has pleaded guilty to murder, the most serious of offences. Many in his position would be tempted to run a trial.

59 His plea of guilty is worthy of a significant discount.

60 Secondly, I am satisfied that Mr Stoneham is remorseful for his offending and the impact it has had on others. The principal reasons I am so satisfied are the entry of his plea of guilty and the concession by Mr Rochford that there is remorse. Added to that are the expressions of remorse to others as revealed by the many references tendered (Exhibit B) and the opinion of Mr Newton.

61 I should say that, initially, I had some doubts about remorse given the manner in which Mr Stoneham sought to change his account from one of lack of memory to one of an accidental stabbing in the course of a struggle. Further, given his immaturity and his mental state, I doubt that Mr Stoneham, at least in the early stages after the murder, had the capacity to understand the full gravity of the impact of his crime upon others. However, I am satisfied by Mr Newton's evidence that, more recently, Mr Stoneham has displayed "a much greater appreciation that the distress he has caused goes so far beyond himself [and] that his distress is only a drop in the ocean by comparison". Further, to my way of thinking, that observation is all the more plausible when the accident thesis has now been abandoned by Mr Stoneham and a plea of guilty has been entered.

62 A plea of guilty to murder that is accompanied by remorse, as here, is a substantial factor in mitigation.

Absence of prior convictions or history of violence

64 As I indicated earlier, whilst there were features of the relationship that suggested an attempt at controlling behaviour by Mr Stoneham, there is no suggestion that he was ever violent towards Ms Donato.

65 Accordingly, I consider it appropriate to sentence Mr Stoneham on the basis that he is a young man of otherwise good character.

66 Fourthly, as I have already mentioned, I accept Mr Newton's evidence that, prior to and at the time of the offending, Mr Stoneham was both immature and in the grips of a major depressive disorder of severe intensity with psychotic features.

67 In my view, the fact that Mr Stoneham was labouring under these afflictions before and at the time of the offence reduces his moral culpability somewhat and also reduces, albeit only to a moderate degree, the importance of general deterrence, denunciation and just punishment as sentencing purposes.

68 Fifthly, Mr Newton is concerned that Mr Stoneham's "pre-existing psychological problems combined with his cultural dislocation, his dysfunctional personality and his youth will unite to make him a particularly vulnerable prisoner".[9] Whilst the psychosis and depressive symptoms have abated, Mr Newton thinks it likely that Mr Stoneham will "experience repeated bouts of depression throughout any extended time in custody", that "[t]hese would likely occur both more frequently and at a greater level of severity than is typical of other prisoners, and [that] this is likely to raise particular burdens for him during any sentence".[10]

69 Mr Morrissey also pointed out that Mr Stoneham is currently housed in "protection" because of the nature of his crime.

70 I accept that Mr Stoneham's time in custody will be significantly more onerous than for other prisoners.

71 Sixthly, Mr Stoneham is very young. He was 21 at the time of the offence and is only 22 now.

72 There are many statements of the Court of Appeal endorsing the view that youth is usually a matter of first importance in sentencing; and others that recognize that, in some cases, including some involving serious violence, youth may have to be subjugated to other sentencing considerations such as general deterrence and denunciation.[11]

73 Whilst Mr Stoneham's crime was grave and was committed in troubling circumstances, and whilst general deterrence, denunciation and just punishment are important sentencing considerations (albeit ameliorated to moderate extent) in this case, I am of the view that his youth is still a very important sentencing consideration. There are several reasons.

74 First, as Mr Newton noted, Mr Stoneham was immature at the relevant time. Secondly, whilst Mr Stoneham was able to understand the wrongfulness of his actions at the time he killed Ms Donato, given that immaturity and the afflictions under which he was labouring, I doubt whether he understood the full impact of his crime at that time. Thirdly, Mr Stoneham is not a hardened young criminal. On the contrary, he has no prior convictions and no history of violence. Further, Mr Newton opines, and I accept, that Mr Stoneham's dysfunctional personality traits are not yet fully entrenched and that he is at a stage of life where his personality can be shaped positively. Fourthly, Mr Newton is of the view, which I accept, that Mr Stoneham is growing in insight and understanding of the enormity of what he has done.

75 In those circumstances, one of the great objectives of the criminal law - namely, the rehabilitation of a young offender - has a good chance of being achieved.

76 Seventhly, that brings me to the issue of rehabilitation. In my view, Mr Stoneham has good prospects of rehabilitation. There are several factors that compel me to that conclusion.

77 First, Mr Stoneham's plea of guilty and his remorse show acceptance of responsibility for his actions. Secondly, the absence of prior convictions or a history of violence suggests that he does not have any entrenched violent way of thinking or acting. Thirdly, whilst Mr Stoneham was mentally unwell at the time of and prior to the offending, Mr Newton takes the view, which I accept, that, whilst his prognosis is guarded, Mr Stoneham is capable of, and is showing commitment to, rehabilitation. Fourthly, whilst he struggled academically at school, he completed Year 12, is of normal intelligence and is capable of learning. Fifthly, while he appears to have found it difficult to settle into employment or study, he has shown in his more recent work in retail that he is capable of working and holding down a good job. Fifthly, Mr Stoneham has the full support of a very close-knit and loving family, which Mr Newton regards as vital to his prospects of reform. Sixthly, whilst Mr Stoneham was using illicit drugs in the period leading up to the offending, and indeed Mr Newton is of the view that such drug use may have contributed to his psychosis, he is free of drugs now. Further, his sentence necessarily will be of an order that will allow him plenty of time to be educated about and treated for alcohol and substance abuse.

78 Mr Newton also takes the view that "there may be some benefit in giving consideration to a relatively lengthy period of community supervision (for instance, by way of intensive parole) to ensure that the transition to the mainstream community is effectively managed whenever it may occur".[12]

79 Mr Morrissey relied in part on that opinion in submitting that the potential for a long period on parole should be ordered, by way of a substantial gap between the head sentence and the non-parole period, in order to reflect Mr Stoneham's youth and vulnerability and to maximise his chances of rehabilitation and reintegration into the community.

80 I accept that submission. Mr Stoneham will be released one day. It is better for the community that he be released in circumstances where his chances of reform have been maximised. The potential for a long period on parole will give Mr Stoneham the incentive to undertake rehabilitative programmes in custody so that he might increase his chances of release upon parole at the earliest possible time. Equally, if he is ultimately released on parole, it is likely that his chances of successful reintegration into the community will be improved if there is a substantial period of supervision on parole.

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

General deterrence, denunciation and just punishment

82 As I have already indicated, in my view, general deterrence, just punishment and denunciation are important considerations in the present case. Others in the community should understand that anyone who might be minded to act in the way James Stoneham did will receive stern and just punishment. He has done a horrible thing and must be punished accordingly. The community should also know that the courts will denounce such behaviour. And I do.

83 That said, as also indicated earlier, I have reduced, albeit to a moderate degree, the weight I accord to general deterrence, just punishment and denunciation on account of Mr Stoneham's mental state at the time of and prior to the offending.

84 Whilst specific deterrence is also a relevant sentencing purpose in this case, I have given it less weight than otherwise on account of Mr Stoneham's plea of guilty, his remorse, his mental state prior to and at the time of offending, his previous good character, his youth and his good prospects of rehabilitation.

85 I have already indicated that I regard Mr Stoneham's crime as disturbing. However, the factors just mentioned - i.e. the plea of guilty, remorse, mental state, previous good character, youth and prospects of rehabilitation - combined with the fact that on any view he will remain in gaol for substantial period, give me confidence that there is only a very modest need to give separate weight to protection of the community as a sentencing purpose. As I have already indicated, protection of the community will be better served by the fixing of a sentence that maximises Mr Stoneham's chances of rehabilitation.

86 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law principle of parsimony. Equally, a sentence must not be such as to undermine other sentencing purposes, such as general deterrence, denunciation and just punishment. I have applied these principles when fixing sentence.

87 In so far as I can determine them, I have had regard to current sentencing practices for murder.[13] I have considered the latest Sentencing Snapshot on murder[14] and read the reasons for sentence and judgments of the Court of Appeal in many murder cases in recent years.

88 Those statistics compiled in the Sentencing Snapshot show that, for the period 2007-08 to 2011-12, the mean fixed term for murder ranged from 18-and-a-half to about 20 years' imprisonment.[15] The median non-parole period (which appears to include non-parole periods fixed in relation to life sentences) was 16 years.[16]

89 Statistics, of course, have their limitations. For example, the statistics in the Sentencing Snapshot do not give the mean non-parole period set in relation to fixed terms. Further, the data on which these statistics are based includes cases where the accused pleaded not guilty, was mature, was not afflicted with mental illness, had prior convictions and so on. Equally, there would be many cases where the offending was less serious than the present case.

90 It is almost always difficult usefully to compare sentences imposed in other cases and divine solid information from sentencing statistics, but I have found these sources of some limited assistance. In the end, however, whilst I have regard to what I consider to be current sentencing practices, because of the limits of that process, I am driven to rely in large part on the particular circumstances of this case and sentencing principles to arrive at what I consider to be the appropriate sentence.

91 I invited submissions from counsel on sentencing range.

92 Mr Rochford submitted that a head sentence of between 19 and 21 years' imprisonment with a non-parole period of between 16 and 18 years would be appropriate. He submitted that that range was consistent with the statistics revealed by the latest Sentencing Snapshot on murder.

93 Mr Morrissey submitted that the Crown's range was too high. He said that "the very bottom end of that range is the very top end of what [is] permissible here". I took that to mean that any head sentence longer than 19 years' imprisonment would be impermissible. He submitted that this case also "cries out for a greater than normal gap between the head sentence and the non-parole period" and that the non-parole period should be "very significantly lower" than the Crown's range given Mr Stoneham's youth and vulnerability and the need for supervision. Mr Morrissey also referred me to sentences imposed in other cases.[17] Ultimately, I understood him to be submitting that it would be appropriate to fix a head sentence of between 15 and 17 years' imprisonment; and he expressly submitted that a non-parole period of between 11 and 13 years would be open.

94 I raised with Mr Rochford the view that the Crown's range seemed to imply a relatively small gap of three years between the head sentence and non-parole period. Mr Rochford submitted that the upper end of the range of head sentence could accommodate a longer gap of four or five years, which he illustrated by suggesting a head sentence of 20 years' imprisonment with a non-parole period of 16 years as a possibility falling within the Crown's proffered range. I understood him to submit that, despite the mitigating factors, the seriousness of the crime - including the premeditation - meant that it was not open to impose a non-parole period shorter than the lower end of the Crown's range.

95 I have been assisted by and have had regard to the submissions of counsel on range in fixing sentence. Ultimately, however, it is for the Court to determine the appropriate sentence.

96 Before announcing sentence, I make the following ancillary orders, drafts of which I have signed:

97 First, I order, pursuant to s 464ZF(2) of the Crimes Act 1958 (Vic), that Mr Stoneham undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 (Vic) until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of the order is justified given the seriousness of the circumstances of the offending, the order is not opposed by Mr Stoneham and it is in the public interest to make the order.

98 Secondly, I order, pursuant to s 33(1) of the Confiscation Act 1997 (Vic), that the property referred to in the schedule to the draft order be forfeited to the Minister.

99 Thirdly, I order, pursuant to s 78(1) of the Confiscation Act 1997 (Vic), that the property referred to in the schedule to the draft order be forfeited to the State.

101 I have found this a particularly difficult sentencing task. Mr Stoneham, at only 21 years of age, has committed murder. His crime is a grave example of the most serious offence in the criminal calendar. He has taken the life of a young woman in sinister and disturbing circumstances. His actions have caused immeasurable grief to Ms Donato's family and friends. Their lives will never be the same. On the other hand, there are important factors in mitigation. Mr Stoneham has pleaded guilty, is remorseful, has no prior convictions, is young, was mentally unwell at the time, will find gaol quite difficult and has good prospects of rehabilitation.

102 Balancing all matters as best I can, for the murder of Adriana Donato, James Stoneham is convicted and sentenced to 19 years' imprisonment. I fix a non-parole period of 14-and-a-half years.

103 I declare that 464 days of pre-sentence detention are to be reckoned as already served under the sentence.

104 Section 6AAA of the Sentencing Act requires that I must state the head sentence and non-parole period I would have imposed but for the plea of guilty.

105 That task is necessarily imprecise given the interaction between pleas of guilty and not guilty and other relevant sentencing factors, as well as the nature of the intuitive synthesis in sentencing. Had Mr Stoneham pleaded not guilty and been convicted after a trial by jury, it is likely that I would have found him to be lacking remorse and as having far weaker prospects of rehabilitation, and that there was a greater need for specific deterrence. It is also possible that I would have found he intended to kill Ms Donato at the time he stabbed her.

106 Had they been my findings, I can say that, but for Mr Stoneham's plea of guilty, I would have imposed a head sentence in the order of 25 years' imprisonment with a non-parole period in the order of 20 years.

[1] It was not clear to me from the materials whether this was the same "bath/hair dryer" incident as referred to earlier or whether there were two similar incidents. Either way, there were several attempts at suicide.

[2] See s 5(2)(a) of the Sentencing Act 1991 (Vic).

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

[4] See s 5(2)(daa) of the Sentencing Act 1991 (Vic).

[5] See s 5(2)(c) and (d) of the Sentencing Act 1991 (Vic).

[6] See, e.g., Walters v The Queen [2013] VSCA at [5]-[10] per Coghlan JA and [25]-[27] per Priest JA.

[7] See Mr Newton's report at paragraph [12].

[8] See, e.g., s 5(2)(e), (f) and (g) of the Sentencing Act 1991 (Vic).

[9] See Mr Newton's report at paragraph [34].

[10] See Mr Newton's report at paragraph [34].

[11] See, e.g., the several authorities discussed by Redlich JA (with whom Coghlan and Macaulay AJJA agreed) in Azzopardi & Ors v The Queen [2011] VSCA 372 at [34]- [44] and by the Court (Maxwell P, Neave and Kaye AJA) in DPP v Anderson [2013] VSCA 45, esp. at [46]-[52].

[12] See Mr Newton's report at paragraph [35].

[13] See s 5(2)(b) of the Sentencing Act 1991 (Vic).

[14] Sentencing Advisory Council, _Sentencing Snapshot: Sentencing tends in the higher courts of Victoria 2007-08 to 2011-12 - Murd_er, May 2013 ("Sentencing Snapshot").

[15] Sentencing Snapshot, p 4, Figure 6.

[16] Sentencing Snapshot, pp 6-7, Figure 10.

[17] In particular, he referred to R v Delich [2013] VSC 309 and R v Acikoglu [2002] VSCA 104.

At a glance

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Judgment (126 paragraphs)

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Legislation Cited (1)