Director of Public Prosecutions v Andrew Robert Paterson
[2022] VSC 746
•2 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT SHEPPARTON
CRIMINAL DIVISION
S CR 2022 0038
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ANDREW ROBERT PATERSON | Accused |
---
JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2022 |
DATE OF SENTENCE: | 2 December 2022 |
CASE MAY BE CITED AS: | DPP v Andrew Robert Paterson |
MEDIUM NEUTRAL CITATION: | [2022] VSC 746 |
---
CRIMINAL LAW — Sentence — Murder — Standard Sentence Offence — Offender attended home of deceased at night and shot him with a .38 calibre revolver — Early guilty plea — Offender motivated by workplace grievance against Manager of workplace — Personality disorder — Modest application of Verdins principles — Sentenced to 26 years with a non-parole period of 21 years — Sentencing Act 1991 ss 5, 5A, 5B.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Erin Ramsay (Plea) Mr Patrick Bourke KC (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr Sam Norton (Plea) Mr Tim Schocker (Sentence) | Stary Norton Halphen |
HER HONOUR:
Introduction
Andrew Robert Paterson, you have pleaded guilty to having murdered Richard Paul Devlin on 5 August 2021 in Numurkah.
Mr Devlin was 55 years of age at the time of his death. He was known as Rick Devlin during life so I shall therefore use that name in my sentencing remarks.
You murdered Rick Devlin by shooting him after dark outside his home.
The maximum sentence for murder is life imprisonment[1] and the crime of murder is a standard sentence offence.[2]
[1]Crimes Act 1958 s 3(1)(a).
[2]Crimes Act 1958 s 3(2)(b). The standard sentence scheme applies in this case because the offending occurred after 1 February 2018. The standard sentence for murder is 25 years’ imprisonment. Murder is also a category 1 offence, which means I must impose a term of imprisonment, see s 5(2G) of the Sentencing Act 1991 (‘the Act’).
The Crown tendered an Amended Plea Opening,[3] a bundle of victim impact statements[4] and the audio recorded 000 call made by Rick Devlin’s wife which took place immediately after the shooting.[5] They also tendered an Outline of Prosecutions submissions.[6]
[3]Document dated 28 October 2022 and tendered as Exhibit P1 on the plea hearing.
[4]Exhibit P2 on the plea hearing.
[5]Exhibit P3 on the plea hearing.
[6]Exhibit P4 on the plea hearing.
Factual background to the offence
You were aged 58 at the time you murdered Rick Devlin and you are now aged 59.
At 8.30pm on 5 August 2021 you drove to Rick Devlin’s home where he lived with his wife, Alison. Rick thought that the approaching car in the driveway of his remote rural property must have belonged to a relative and went outside the greet the visitor. Instead he was confronted by you standing near your car holding a .38 calibre revolver. You fired two shots at Rick Devlin, one of which penetrated his skull and caused his death, while the other shot contacted his chest but did not penetrate below the skin.[7]
[7]An intact fired bullet was found by police close to Rick Devlin’s body after the incident.
As soon as you had fired the shots, Alison ran outside to her husband only to find him lying on the ground unresponsive. She phoned 000 at 8.48pm and performed CPR for 28 minutes, all the while fearing that the shooter would return and shoot her.
Rick Devlin was found to be deceased by emergency services when they attended at 9.16pm. It was clear that he had died from the gunshot wound to his head. Dr Noel Woodford, a forensic pathologist, confirmed that this was the cause of death when he conducted an autopsy at a later date.
Your motive for murdering Rick Devlin was related to a workplace grievance arising out of your employment with Moira Shire Council. Rick Devlin was Chief Executive Operations Manager at the Council.
It is necessary to describe your subjective perception of that grievance in order to expose the workings of your mind at the time you killed Rick Devlin. However, I interpolate here that from an objective viewpoint, your reasons for acting as you did appear unfathomable.
At the time of the murder you were living with Tina, your wife of 23 years. Your background was in truck driving and road construction, and in the past you had worked for various shire councils across Victoria. You were employed by the Shire from 2015 until the time of the offence. When you were working at the Nathalia depot of the Moira Shire, you became involved in a number of workplace disputes with your peers. Tensions escalated between yourself and your peers, leading to you being stood down due to an allegation of theft in November 2019. It would appear that the theft allegation was unfounded, but you never returned to work after November 2019.
As a result of ongoing tensions in the workplace, you made allegations of bullying and harassment and demanded that the Council resolve your complaint. At first, the matter was dealt with internally by the Council, but a consultant was later engaged on behalf of Work Safe Victoria. The Australian Services Union provided support to you throughout the dispute. On 15 January 2020, you submitted a claim form for stress-related injuries, citing workplace threats. You remained off work on Work Cover leave, and over the 18 months prior to the murder you became increasingly pre-occupied by your workplace grievance.
Your Work Cover claim was rejected on 18 February 2020, leading to a reconsideration. On 12 August 2020, your claim was granted and you received payments in arrears and remained on paid leave.
On the one hand, it seems that you were mistreated in the workplace. Your co-workers manufactured allegations against you, hoping to have you relocated or dismissed. On the other hand, you also broke various codes of conduct and at times you were aggressive towards your co-workers.
By May 2021, your doctor approved your return to work on the proviso that certain conditions were met regarding your work circumstances. In July of that year, a return to work plan was prepared. You were not happy about the plan, which would have required you to return to work on 9 August 2021. After contact with your union representative, you were advised that your certificate of unfitness lasted until 20 August of that year. That meant you could still go on a camping trip you had planned to take on 9 August 2021 with your friend, ‘Bob’.[8]
[8]Bob’s full name was provided to the Court as part of the depositions.
You spent the afternoon of 5 August 2021 with Bob, preparing for the camping trip that was to take place the following Monday. Having packed the vehicles in readiness for the Monday departure, you consumed three or four beers at Bob’s place at around 4.30pm that afternoon. Bob found your demeanour to be normal that day. However, at around 5.00pm your wife rang you to advise that the new state-wide COVID–19 restrictions would stop you from being able to go on your camping trip.
You drove home from Bob’s place and acted out in a drunken and aggressive manner towards your wife. You smashed your mobile phone against a table, threw items around the kitchen (including your dinner) and took your wife’s handbag and keys. Your wife fled from the house and drove to Shepparton. After she left, you armed yourself with your .38 revolver and wrote a note for your wife in which you said ‘All the best love, sorry, can you give my half to Bob. Sorry, I’ve had enough. Bye’.
It seems that the .38 revolver was given to you by a friend some 20 years earlier, but you were not licensed to possess it and it was not registered. There were other long arms at your home in Caniambo, as you held a Category A and Category B firearms licence.
Police interview
The actions you took after leaving the suicide note at your home were described in your police interview after the shooting. You told police that after leaving the note for your wife, you had planned to go to your block of land in Caniambo and kill yourself. Instead of doing that, you drove to Shepparton and bought some alcohol at about 7.36pm. Next, whilst continuing to drink, you drove onward to Numurkah, where you bought more alcohol at a liquor store. From there, you then drove directly to Rick Devlin’s house, which was about 8.6 kilometres from the township of Numurkah.
You admitted to police that you shot Rick Devlin outside his home. You told police that you were standing about a car’s length away from the deceased when you shot him. After the shooting, you returned home and were arrested at 10.20pm that night. Your wife had already notified the police of her concerns about you after finding your note upon her return home from Shepparton.
It should be noted that although you and Rick Devlin knew one another, Rick Devlin was not your direct line manager and you did not have day to day contact with him. Nevertheless, you maintained an unshakeable belief that he failed to properly manage your workplace grievance. You believed that he was responsible for orchestrating your removal from the workplace.[9] Your animosity towards Rick Devlin was revealed in different ways during your record of interview. You said: ‘If you’re running the place, the buck stops with the boss, doesn’t it?’ This attitude was also reflected in comments you made to others in the lead-up to the shooting.
[9] Information to this effect comes from the police Record of Interview and from the statement of Trevor Harbor in the depositional material before the Court, see statement of Trevor Harbor [12], depositions 191; and Record of Interview questions 386-390, depositions 610-611.
You told police that after the murder, you discarded the firearm in a water channel somewhere between Numurkah and your home. Extensive searches by police failed to locate the revolver. You did not express any remorse for your crime during your record of interview.
Victim impact statements
Rick Devlin had been a Corporal in the Australian Army prior to obtaining work with Shepparton Shire Council. He was promoted within local government over the years until he attained the position he held at the time of his death. He was in charge of numerous staff at five different locations. He had seven adult children and was a doting grandfather to his grandchildren. He was previously married to the mother of his seven children.[10] He met his second wife, Alison, in 2011 and they married in 2018, choosing to live at the Numurkah property which had belonged to Rick’s father.
[10]Named in the depositional material but need not be named here.
Your crime has had a devastating effect on the family of Rick Devlin, and in particular on his wife, his parents, his children and his grandchildren.
The Court received victim impact statements from Rick’s wife, Alison and from his children: Emma; Jacqueline; Kristy; Stephen and Tim, as well as from Rick’s mother Sandra, his sister Rae, and a grandchild, aged 11 years old.[11]
[11]I have avoided using full names for the victim impact statements.
Rick’s wife, Alison, said that Rick was the love of her life and that having been together for 11 years, they spent most of their time together when away from work. Her happiness was shattered by what she has described as the worst night of her life. She is haunted by the terror of trying to revive her husband while wondering whether the shooter would come back and shoot her. She is currently receiving psychotherapy and has been diagnosed with Post Traumatic Stress Disorder with severe anxiety as a result of what happened. She is likely to require ongoing treatment into the future.
Rick’s daughter, Emma, is sad not just because of her loss but also because of the effect on her children.[12] She feels that her mental health has declined and she had to leave her job after losing her father.
[12]Including her eleven-year-old son, who wrote a victim impact statement about the loss of his grandfather.
Jacqueline said her dad was her ‘best mate’ and she has felt lost since his passing. She has withdrawn from friends and feels that the death of her father has impacted on her relationships. She has required psychotherapy to deal with these feelings.
Kristy feels anger, frustration, fear and sadness. She is especially sad that her father is not there to learn about her pregnancy and marriage plans.
Stephen feels that everything has changed since the death of his father and he struggles to socialise and enjoy life in the same way. He feels constantly anxious about family members and has struggled to finish his bachelor’s degree in psychology.
Tim has needed to take bereavement leave and has changed roles from where he worked before. He feels angry and overwhelmed every day, has trouble sleeping, and feels uncomfortable in crowded places.
Rick’s mother, Sandra, said she could not find the words to describe her grief and pain. She is unable to understand how the incident could have happened and feels like she is living in a nightmare.
Rick’s sister, Rae, feels that the lives of his family will never be the same without him.
Plea timing
You pleaded guilty to the crime of murder at the earliest opportunity, on 28 February 2022, which was shortly after the committal mention,[13] and you have been in custody since the day of your arrest on 5 August 2021.
[13]On 15 February 2022 at Shepparton Court.
Prior history
Your past criminal history is of limited significance in light of the serious offence before the Court: you incurred drink-driving related convictions more than 30 years ago and were dealt with for burglary and theft in July 1984, nearly 40 years ago. Your most recent convictions were for wilful damage and public drunkenness in 1989.
Defence plea material
Mr Norton, who appeared on your behalf, tendered an Outline of Defence Submissions,[14] and a table of Standard Sentence cases.[15] He also tendered a letter of apology written by you,[16] a testimonial from your wife,[17] a clinical neuropsychological report authored by Dr Harriet Downing,[18] and a forensic psychological report authored by Patrick Newton. [19] Additionally, a Patient Health Summary from your local medical practice was tendered showing your medical and psychological presentations prior to the offence.[20] A report from consultant psychiatrist, Dr Michael Duke written in relation to your Work Cover claim was also tendered.[21]
[14]Dated 21 October 2022, exhibit D1 on the plea hearing.
[15]Exhibit D8 on the plea hearing. Pursuant to s 5B(2)(b) of the Act I am precluded from having regard to sentencing practices for murder that pre-date the introduction of the standard sentence provisions.
[16]Dated 28 August 2022, exhibit D6 on the plea hearing.
[17]Dated 25 September 2022, exhibit D7 on the plea hearing.
[18]Dated 18 June 2022, exhibit D3 on the plea hearing.
[19]Dated 17 October 2022, exhibit D2 on the plea hearing.
[20]Patient Health Summary was printed 14 August 2021, exhibit D4 on the plea hearing.
[21]Dated 13 February 2020, exhibit D6 on the plea hearing D5 (the report predates the murder).
The Patient Health Summary from your local medical clinic[22] discloses your mental health presentations from late 2019 until your last recorded visit in July 2021. On 19 November 2019, you complained that work was stressing you out and you had heard rumours that you were being set up to be fired. Similar complaints were made by you until the end of that year, and you complained of a range of psychological symptoms.[23]
[22]Seen by General Practitioners and mainly seen by Dr Mobolaji Ogungbe over the relevant period.
[23]For example, records in November 2019 running into December 2019 show complaints of lack of sleep and of being threatened by certain people at work and being unable to go to work as well as reports of being unable think properly and wanting to go on Work Cover.
You were diagnosed with an adjustment disorder with depressed mood. Although you were prescribed medication, the symptoms that led to that diagnosis continued throughout the first half of 2020. You continued to report lack of sleep, being unable to think properly, being anxious about threats you had received at work, ruminating about the failure of the workplace to deal with the issue, feeling depressed and angry, and drinking excessively.[24] In June 2020, you were referred to a psychologist, Mr Joseph Matthew, and were prescribed another form of antidepressant medication.[25]
[24]See records for 13 and 14 January 2020, 10 and 28 February 2020, 23 March 2020, 2, 7, 16 April 2020 and 1 May 2020.
[25]On 1 June 2020, Mr Paterson was still being certified unfit for work and was saying he still could not go back to work as the threat of violence had not been dealt with and that the case was at conciliation. The diagnosis of adjustment disorder remained.
Mr Matthew treated you from June 2020 until at least March 2021. He provided Cognitive Behavioural Therapy (‘CBT’) and assertiveness skills training, and recommended that your doctor prescribe antidepressant medication given the severity and duration of your anxiety and stress.[26] However, in the main it seems that your symptoms did not abate, and you remained fixated on your grievances against your employer.[27] Your perception of unfair treatment by the Shire was also explained in the report of Dr Michael Duke.[28]
[26]As noted in report of Joseph Matthew, 11 June 2020. In the progress report to the GP after the tenth session, Mr Matthew described Mr Paterson as having benefited from psychological intervention. Further records confirmed prescription of 15mg of Mirtazapine with some benefit.
[27]Mr Paterson’s wife of 23 years, indicated in her letter to the Court that she noticed personality changes over the preceding three years, which became worse with excessive drinking.
[28]Exhibit D5 referred to above. Dr Duke opined that unresolved issues at work were a barrier to Mr Paterson being able to return to work, including the need for external mediation of complaints by him about threats and mistreatment in the work place and about the absence of drug and alcohol controls in the work place.
Your adjustment disorder continued throughout the first half of 2021, with your GP prescribing ongoing medication and certifying you unfit for work.[29] As at 23 July 2021, you were still certified as unfit for work, which was not long before the offending.
[29]Prescriptions and diagnosis confirmed repeatedly 8 January, 5 February, 20 March, 30 April 28 May, and 23 July 2021.
Following your arrest and remand in custody, you were assessed by neuropsychologist, Dr Harriet Downing.[30]
[30]She saw Mr Paterson on 31 May, 7 June and 10 June 2022 and provided a report dated 18 June 2022 against a background of a significant head injury at around the age of 17 and a request for a neuropsychological assessment in the context of the offence. Dr Downing had access to the past medical records of Mr Paterson, information from Mr Paterson’s wife and the material in the prosecution brief.
Dr Downing reviewed the clinical records I have discussed and noted your reported heavy alcohol use over many years.[31] You told Dr Downing that at the time of the offending, you had consumed a dozen cans of alcohol (mostly beer) over four to five hours with the effect that ‘everything’ was ‘magnified’.[32]
[31]Dr Downing noted a history of drinking half a dozen cans of beer every second day and generally a dozen cans of beer on the weekend either alone or with others and occasional blackouts associated with alcohol use.
[32]Downing report p 5. It was further noted that Dr Duke indicated consumption of four stubbies per night of full strength beer leading to the diagnosis of mild alcohol use disorder, but that in the police interview Mr Paterson spoke of not having had a drink for about a month prior to the offending, but having had about eight stubbies on the day of the offending.
Your account of the offending given to Dr Downing largely tallied with your police interview.[33] Dr Downing found no clear neuropsychological condition that could explain your behaviour.[34]
[33]The account being that the offending occurred in the context of an extended work place dispute in relation to which you had been off work for 77 weeks with involvement from the union, Work Cover, Fair Work Commission, the Ombudsman’s Office and with the victim, Rick Devlin.
[34]She suggested that a forensic psychologist or psychiatrist might be well placed to examine psychological or psychiatric conditions operating at the time of the offence.
Patrick Newton, a clinical and forensic psychologist, revealed that at the time of your offending, you were likely suffering from a paranoid personality disorder. Mr Newton proposed this as a likely diagnosis after assessing you and accessing the relevant materials.[35]
[35]He had access to the report of Dr Downing, as well as all of the materials that had been available to Dr Downing and he assessed you during two 90 minute consultations on 31 August and 26 September 2022.
Mr Newton narrated your personal history. He noted that you were the third of five sons and that although your early childhood was happy,[36] the family unit split up following your parents’ separation. Your two younger brothers began residing with your mother, while you and your two older siblings stayed with your father. The older siblings left home soon after, leaving you living with only your father. You were not academically inclined at school and tended to get in trouble in years 7 and 8.[37] You moved to Dandenong Technical School for years 9 and 10, before leaving school to commence work. You told Mr Newton that you have had almost no contact with your mother after she left your father and do not know if she is still alive. For about eight months, you helped look after one of your brothers who had suffered a stroke, but you are now estranged from all your brothers.[38]
[36]Mr Paterson’s parents and siblings were living in Albert Park and South Melbourne at that time with his father, working as a moulder and his mother at home.
[37]At Glen Waverley High School.
[38]Plea transcript, p 62.
You described a strong work ethic after you left school, starting out at a dairy farm aged 16, then a horse stud at 17, and then as a shearer for the three years thereafter. In your twenties, you worked in a range of manual labouring jobs and rural enterprises. You learned to rely only upon yourself. You acknowledged to Mr Newton that you had been involved in a number of workplace disputes over pay conditions over the years. Your father died in 2008.
From 2008 your worked for South Gippsland Shire for eight years and enjoyed that work, but again, you became involved in disputes and difficulties that led you to leave that occupation.
You and your wife moved to the Shepparton area and in 2015 you took up the position at the Moira Shire Council. However, you claimed to have experienced harassment in that role from the outset. You felt that there was a conspiracy to drive you out of your job and that the harassment was orchestrated by Rick Devlin to make you leave so his son could get a job with the Shire. You claimed that shortly before the shooting, you learned that if a worker has been away from work long enough they can be dismissed. This caused you to feel suicidal. You could not explain what changed your mind from suicide to homicide.
Regarding your belief that Rick Devlin was the cause of your work difficulties, Mr Newton observed that you adhered to that delusional belief tenaciously and with irrational fervour, thus limiting the development of remorse on your part. Whilst you described your own actions in shooting Rick Devlin as ‘putrid’, Mr Newton found that your ability to properly experience remorse was compromised by your limited capacity for proper insight regarding your offending.[39]
[39]Newton report [45]. Mr Newton found little evidence of insight into the delusional nature of the beliefs about Mr Devlin.
In his report, Mr Newton found that you had the symptoms of a paranoid personality disorder at the time of the offending.[40] In his oral evidence, he mentioned that this disorder was of a persecutory type.[41] Mr Newton was unable to confirm the diagnosis by psychological tests,[42] but found the hallmarks of this diagnosis being a pattern of persistent, recurrent and prolonged interpersonal difficulties and social dysfunction, reflecting a disturbed personality.[43] He thought it highly likely that you were suffering from this personality disorder,[44] and from paranoid delusions about Rick Devlin in the lead up to the murder.[45]
[40]A paranoid personality disorder was described as characterised by a repetitive pattern of interpersonal difficulties dominated by experiences of hostility, suspicion and unreasonable resentment towards others.
[41]He said during his oral evidence regarding the personality disorder: ‘I said paranoid type in the text, it should be persecutory type under the new nomenclature’ Plea transcript p 35.
[42]Mr Newton also noted the differential diagnostic possibilities in Mr Paterson’s case of schizophrenia or delusional disorders of a psychotic nature.
[43]Mr Newton considered the genesis of these problems was likely a result of disruption in early attachments caused by parental divorce resulting in recurrent experiences of distress, abandonment, instability and insecurity, resentment and grievance.
[44]By reference to the standards set out in the Diagnostic and Statistical Manual (DSM).
[45]Mr Newton clarified that he used the words highly likely in the absence of being able to confirm the diagnosis with psychometric testing; Plea transcript p 36.
He found that paranoid personality features contributed to the breakdown of your behavioural control exacerbated by other factors such as your intoxication, the cancelled camping trip, and tensions in your marriage. Your condition would have impaired your judgment and insight, skewing your perception of the situation. However, it would not have prevented you from appreciating the wrongfulness of your actions, nor from forming the intent to commit the offence.[46]
[46]He found that it is likely Mr Paterson understood the consequences of his actions when he fired the gun, and his post-offence conduct suggested clear awareness of guilt.
Mr Newton testified that at the time of the offence, you held a fixated and obsessive belief about Rick Devlin. This belief shows no signs of ameliorating or remitting now.[47]
[47]Plea transcript p 42.
When asked about the intractability of that belief prior to the murder, despite treatment including medication, CBT and time off work, Mr Newton opined that you had not been subject to a comprehensive assessment allowing those treating you to identify the root cause of your disordered thinking. They were targeting symptoms of depression and anxiety, but had not appreciated your delusional belief system and therefore treatment had not been targeted to that.[48] Mr Newton characterised your personality disorder as causing moderate personality dysfunction impacting on your capacity to interact with others and on your self-identity.[49] The fact that you had been able to maintain a long-term relationship with your wife had been a protective factor, without which you would have likely developed a more severe disorder.
[48]Plea transcript p 42 and 43.
[49]Plea transcript p 53.
Added to your personality disorder, the disinhibiting effects of alcohol on the day of the offence led you to contemplate suicide or homicide.[50] You continued to hold Rick Devlin responsible for all of your problems.
[50]Mr Newton considered that the offence may not have occurred without the disinhibiting effects of the alcohol Mr Paterson consumed, Plea transcript p 51.
Mr Newton noted that you are currently coping well in prison[51] and are working as a cleaning billet. However, he said that those who suffer from a personality disorder are more likely to experience higher levels of interpersonal conflict and aggression than others, which may result in increased risk for you in a prison situation. Those matters in combination with your age, relative to other prisoners, may result in your experience of incarceration as being more onerous than for other prisoners.
[51]This finding that you were coping well in prison was consistent with the opinion of Dr Downing.
At the time of the offending you were taking Mirtazapine at a low dose, and you are currently still on that medication, albeit at a higher dosage to help manage your depression.
Parties legal submissions
It was put on your behalf that after your arrest, you cooperated with police and made full admissions to the offending. Also, that your entered your plea of guilty at the earliest opportunity and in so doing facilitated the course of justice. Whilst the case against you was strong, I acknowledge the significant utilitarian value in your plea of guilty.
Your plea was entered at a time when there was still great strain on the justice system caused by the pandemic and full weight must be given to Worboyes principles in sentencing you.[52] I also acknowledge your cooperation with police, although I note that you had already disposed of the murder weapon prior to your arrest and it has not been located.
[52]DPP v Worboyes [2021] VSCA 169.
Mr Norton argued that although your personality disorder interfered with your ability to properly experience remorse, practical articulations of remorse are to be found in your plea of guilty, your letter of apology to the family and friends of Rick Devlin, and your remarks to your wife,[53] and to Dr Downing and Mr Newton. I accept that there are some practical manifestations of remorse in the way described, but I also note the Defence concession regarding your inability to express proper remorse.
[53]In her letter to the court she described remarks made about feelings of sadness for the family of the victim.
You have little by way of criminal history, and despite a difficult adolescence you functioned reasonably well until the offending, maintaining your marriage and holding down jobs for most of your adult life. You have been behaving well on remand.[54]
[54]Working as a cleaner and enduring the worst period of COVID-19 custodial restrictions particularly in the latter part of 2021.
Mr Norton argued that the evidence of Mr Newton established that your personality disorder played a noteworthy role in the breakdown of behavioural control.[55] There was, he submitted, a causal connection between the condition[56] and the offending. Referring to the Court of Appeal’s decision in Brown,[57] he submitted that the key focus must be on the impact of that condition on your mental functioning, behaviour and thinking, rather than the label that is applied to it. Mr Norton submitted that while your moral culpability should be assessed as lower than it otherwise would, warranting some moderation of specific and general deterrence, the application of Verdins principles may not be a weighty matter in the overall sentencing process.[58] He accepted that the presence of personality disorders can sometimes increase the significance of community protection but suggested that this should not occur in your case.[59]
[55]Defence submissions p 5 referring to Mr Newton’s report [50] and [51].
[56]On the basis of the impact of the personality disorder on judgment and conduct.
[57]Brown v The Queen [2020] VSCA 212 [63]–[69].
[58]Transcript of plea hearing p 58.
[59]Defence plea submissions [18].
A table of sentences imposed since the introduction of the standard sentencing scheme was provided by the Defence.[60] I agree with the parties that there are no strongly comparative sentences that the Court can look to in your case, but I have had regard to the comparative sentences referred to by the parties.[61]
[60]Defence plea submissions [20].
[61]Of the table of cases referred to The Queen v Pozzebon [2019] VSC 631, appears to be a reasonable comparator. DPP v Gonzalez [2022] VSC 331 also has some comparative value although a key distinction is that the it occurred in the wake of an intimate relationship between Gonzalez and the deceased.
It was not submitted by the parties that the head sentence to be imposed should be less than 20 years, nor that the fixing of the non-parole period should be less than 70% of the head sentence.[62]
[62]Defence plea submissions [21], referring to the effect of s 11A(4)(b) of the Act.
The Crown emphasised the objective features of your offence, which in their submission made it a serious example of the crime of murder, and further submitted that limited weight should be accorded to your personality disorder. I will discuss the relevance of your personality disorder shortly.
Consideration of moral culpability, Verdins principles and the purposes of sentencing
In sentencing you, I have had regard to both the maximum sentence and the standard sentence for murder.[63]
[63]The Act ss 5(2)(a) and (ab). S 5A(1)(b) of the the Act states that ‘the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.’ Pursuant to s 5A(3) of the the Act, for the purposes of s 5A(1)(b), objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender or class of offenders; and wholly by reference to the nature of the offending.
Regarding the principles to be applied to standard sentencing, the Court of Appeal in Brown v The Queen[64] held that:
The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
· is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
· does not affect the established ‘instinctive synthesis’ approach to sentencing;
· does not require or permit ‘two-stage sentencing’; and
· does not otherwise affect the matters which the court may, or must, take into account in sentencing.[65]
[64]Brown v The Queen [2019] VSCA 286.
[65]Brown v The Queen [2019] VSCA 286, 1-2 [4].
In sentencing you, I must take into account the standard sentence as one of the relevant factors[66] when assessing the seriousness of the offence. In doing so, I must also consider the objective gravity of the offence and your moral culpability, in addition to all other matters relevant to sentencing discretion.[67]
[66]The Act s 5B(2)(a).
[67]Brown v The Queen [2019] VSCA 286, 20 [55] ‘Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way taking into account both objective gravity and moral culpability’; McPherson v The Queen [2021] VSCA 53, 14 [31] ‘In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.’
The crime of murder is a crime of the utmost gravity, and this is a serious example of that crime. To shoot an unarmed man at his home, as he came outside to greet a late night visitor, was a ghastly and cowardly act.
Factors increasing the objective gravity of the offending include the use of a firearm, the opportunity for forethought involved in travelling to the location before the shooting, the murder occurring at the victim’s residence,[68] and your disposal of the murder weapon after the murder.
[68]Where he was present with his wife at the time.
Despite having had the opportunity to reconsider your proposed course of action on your way to Rick Devlin’s property, you proceeded to shoot him at his home,[69] where he and his wife were entitled to feel safe, using a firearm you were not legally entitled to have.[70]
[69]Noting also the remote rural location of that residence.
[70]It was an unregistered firearm and Mr Paterson was not licensed to possess it.
I accept the Crown’s submission that only limited weight can be attributed to Verdins factors in assessing your moral culpability and in moderating general and specific deterrence. I accept that you were obsessed by your perceived mistreatment by Rick Devlin. I am persuaded by the evidence of Mr Newton that your offending was somewhat influenced by your personality disorder,[71] but there were other factors at play, including alcohol, and your desire to exact revenge on Rick Devlin. You were aware of the wrongfulness of your actions when you armed yourself with the revolver and went to his home. You voluntarily consumed alcohol whilst already in a heightened emotional state, and you had the chance to reflect on the wrongfulness of what you were doing on your way to Rick’s house.
[71]I note the decision and comments of the Court of Appeal in Brown v The Queen [2020] VSCA 212, 20-22 [61]–[63] and [68]–[69].
General deterrence remains very important in sentencing you. Rick Devlin lost his life because of decisions made by you consciously and voluntarily. Places of employment commonly result in workplace grievances against those working in managerial roles. The sentence I impose has as one of its aims the deterrence of others from enacting violent revenge because of a workplace grievance. I consider that your moral culpability is only diminished to a modest extent because of your personality disorder, leading to only modest diminution of the weight to be accorded to general and specific deterrence.
Mr Norton argued that your age, poor physical health[72] and your personality disorder will make your experience of custody somewhat more onerous than for other prisoners.[73] He argued that there was a significant risk that due to poor health you will die in prison.[74] Regarding your physical health, although you suffer from a range of medical conditions, prior to the offence you were still physically capable of working and you maintained your own rural property while you were off work. However, I accept that the presence of your personality disorder may cause your sentence of imprisonment to weigh slightly more heavily on you than for a prisoner who does not have this disorder.[75] I also acknowledge that you are being sentenced as an older person and a person in somewhat reduced physical health.
[72]Submitting that obesity, diagnosis of fatty liver and high blood pressure could lead to a reduced life expectancy.
[73]Defence plea submissions [19], referring also to Newton report [53].
[74]Plea transcript p 60.
[75]Whilst the Crown submitted they did not understand the Defence to be relying on Verdins 5 or 6, the Defence submissions did touch on Verdins 5 in that it was argued that Mr Paterson’s personality disorder would make prison more onerous than for other prisoners. See also the Newton report [53].
All of the purposes of sentencing in s 5 (1) of the Sentencing Act have application in your case: just punishment, specific and general deterrence, rehabilitation, denunciation and protection of the community.
I have given close consideration to the impact of your crime on the family and friends of Rick Devlin and on the wider community. As I have said, general deterrence and denunciation remain important considerations. I accept that your current age, together with the lengthy sentence to be imposed and your compliance with medication and treatment, are likely to reduce the risk you pose when released. However, your lack of insight and the intractability of your personality disorder are countervailing factors.
Regarding your prospects for rehabilitation, I accept that you have acknowledged the gravity of your crime despite your ongoing resentment about your treatment at work. You have the continuing support of your wife and you have been cooperative on remand, leading me to accept that you have the potential for rehabilitation after serving a lengthy prison sentence.
I have taken into account the principle of parsimony in s 5(3) of the Sentencing Act in deciding on the sentence to be imposed in your case. On the basis of all the aforementioned matters, I have arrived at a sentence which is proportionate to the crime to which you have pleaded guilty.
Sentence
Andrew Paterson, please stand.
On the charge of murder I sentence you to 26 years imprisonment, which is more than the standard sentence for murder.[76]
[76]The Act s 5B(5) requires the Court to explain how the sentence relates to the standard sentence for the offence.
I fix a non-parole period of 21 years.
Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a sentence of 30 years with a non-parole period of 26 years.
I declare 484 days pre-sentence detention as time already served under the current sentence, not including today’s date.
6
0