Director of Public Prosecutions v Blake
[2024] VSC 592
•16 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0063
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SAM GORDON BLAKE | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2024 |
DATE OF SENTENCE: | 16 July 2024 |
DATE OF REASONS: | 24 September 2024 |
CASE MAY BE CITED AS: | DPP v Blake |
MEDIUM NEUTRAL CITATION: | [2024] VSC 592 |
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CRIMINAL LAW — Sentence — Manslaughter — Accused and deceased drug associates, argument surrounding debt, deceased hit over the head with a log — Serious example of manslaughter — Limited criminal history, no matters of violence — Guilty plea — Limited remorse — Sentence indication given — Disclosure after sentence indication of last known location of body — Body not located — Extensive efforts to conceal body — General deterrence, denunciation and just punishment important — Specific deterrence and community protection important — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | J Johnston A Singh | Office of Public Prosecutions |
| For the Accused | G Casement L Andrews | Slades & Parsons Solicitors |
HIS HONOUR:
Introduction
Sam Gordon Blake, on 12 July 2023 you pleaded guilty to killing Dalibor (Dale) Pantic on or about Wednesday, 10 April 2019.
The maximum penalty for the offence of manslaughter at the time of this offence was 20 years’ imprisonment.[1]
[1]Pursuant to s 637 of the Crimes Act 1958 (Vic), s 5 of that Act which states the maximum penalty for manslaughter as 25 years was amended by s 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 which applied to offences alleged to have been committed on or after the commencement of s 3 of that Act. Section 3 of the amending Act commenced on 1 July 2020 (pursuant to s 2(2) of the amending Act).
Background
Mr Pantic was born in Serbia in 1980 and was 38 years old at the time of his death. He was the first child of Jovan and Ruzica Pantic and had a younger sister, Bozana. The family migrated to Australia in 1994 and have been described as ‘close‑knit’.
In 2000, Mr Pantic commenced a relationship with Katerina Pavlovic and together they had two daughters, who were 14 and 11 at the time of his death. The couple separated around 2014 but remained friends. Mr Pantic maintained regular contact with their children up until his death. In about 2014, Mr Pantic moved to Lakes Entrance and commenced a relationship with Malina Teohaere and together they had three children, who were ages 3, 2 and 1 at the time of his death.
Sometime before moving to Lakes Entrance, Mr Pantic was introduced to using methylamphetamine. He and Ms Teohaere are said to have used this drug together which led to relationship difficulties, and him acting paranoid on occasions.
Circumstances before the offending
You and Mr Pantic were known to each other, having met around 2015. At the time, you were trafficking drugs in the Gippsland region and met Mr Pantic through a mutual associate. He was seeking a large quantity of methylamphetamine and you agreed to get it for him. You entered a partnership which involved one of you giving money to the other, and then the other travelling to Melbourne to purchase drugs. You spent a lot of time together and became good friends. You considered him to be more of a friend than a drug associate. However, your friendship deteriorated when Mr Pantic, for reasons unknown to you, allegedly stole $3,000 from you. You told police that he never returned this money, and your relationship never fully recovered. You cut ties with him and did not speak to him for some time.
You later told police that in late 2018, the two of you made contact with each other via Facebook. You met up for a coffee, he apologised to you, and you forgave him. The two of you became friends again, albeit you were not as close as before.
In the days leading up to Mr Pantic’s death, it appears you loaned him methylamphetamine valued at $350. He told you that he would pay you back by 10am the next morning. When he failed to pay you, you became enraged as you were then unable to pay the person who you owed about $1,000. You ‘bombarded’ him with calls and messages, to which he did not respond. As payment, you decided that you were going to take Mr Pantic’s grey Ford sedan, which belonged to his father. You messaged him, telling him that if he drove to Melbourne to buy drugs, you would wipe the $350 debt. You did not mention that you were planning on taking his car. You asked another person to pass on a message to the person you owed money to that you were going to get a car to cover the debt.
Circumstances of the offending
Shortly after 5pm on Wednesday, 10 April 2019, Mr Pantic drove his father’s grey Ford sedan about 90 kilometres from his home in Lakes Entrance to a farm owned by your grandparents, which is located near Sale in Gippsland.
Mr Pantic arrived at the property sometime after. It is agreed between the prosecution and defence that you caused the death of Mr Pantic by committing an unlawful and dangerous act. The prosecution does not allege or assert how you did this. According to the more recent undated statement you signed, and filed with the Court on 19 April 2024, you grabbed a log within arm’s reach and hit Mr Pantic on the head with it. Given how much is unknown, the prosecution accepts that the Court should sentence you on the basis that the act causing death involved an objectively low level of gravity.
After killing Mr Pantic, you concealed his body. Despite extensive efforts to recover his remains, which I will discuss later in these reasons, his body has never been located. Shortly before 3am, you drove Mr Pantic’s vehicle to Sale and dropped it off at the factory of an associate. That person drove the car to the person that was owed money who, after inspecting the vehicle, said he was not interested in receiving the car as payment for the debt owed by you. The car was returned to you that evening. In a final attempt to dispose of the vehicle, you offered to sell it to two other men. Both declined your offer. The whereabouts and movements of the car from this point on could not be determined by police. To this date, the whereabouts of the car remains unknown.
The police investigation
Mr Pantic was formally reported missing by his partner, Ms Teohaere, around 6am on 13 April 2019. That afternoon, the police published a media release and further disseminated information in an attempt to locate Mr Pantic.
At about midnight on 14 April 2019, you met with Detective Senior Constable Curran at the Sale Police Station and provided an initial account of what you said, you believed, were Mr Pantic’s last known whereabouts. However, Detective Senior Constable Curran regarded you as a person of interest and your conversation was covertly recorded. Your initial story went like this. Mr Pantic arrived at the farm around 7pm on 10 April 2019 in his grey Ford sedan. You talked for a long time and smoked some ice together. At some point, you agreed that Mr Pantic would drive to Melbourne to purchase drugs, and you gave him $2,000. Mr Pantic then left the farm in his vehicle around 9pm with a full tank of fuel and the money you had given him. After he left, you continued to chop wood and did not leave the farm until 4pm after you finished work for the day. When Mr Pantic failed to return some six hours later, you said you messaged him and when you did not receive a response, you called him on both of his mobile phones, but neither rang. You deleted those messages and calls before continuing on with your day. You put forward a theory that Mr Pantic had gone to his ex‑wife’s house.
On 15 April 2019, Victoria Police published a second media release in an attempt to locate Mr Pantic and the car. A media conference was held with Ms Teohaere for the purpose of promoting awareness concerning Mr Pantic’s disappearance.
On 15 and 16 April 2019, Victoria Police conducted two searches of the farm. Nothing of value was located. During the second search, Acting Sergeant Ringin spoke with you, during which you:
(a) took him to an area near the driveway and indicated that Mr Pantic had parked his vehicle in this location and the two of you talked in the car;
(b) showed him a room in a run‑down house referred to as ‘Aunt Edie’s’, where you and Mr Pantic smoked ice;
(c) took him to a wood pile at the rear of Aunt Edie’s and to a shearing shed from where you said you and Mr Pantic had moved a sick sheep; and
(d) showed Acting Sergeant Ringin a fuel tank next to the driveway and stated that you had put fuel in Mr Pantic’s vehicle.
You further said to Acting Sergeant Ringin that:
(a) you and Mr Pantic returned to Aunt Edie’s for a while and discussed plans to purchase the drug ice;
(b) you gave Mr Pantic $2,000 to buy drugs and Mr Pantic then left in his vehicle;
(c) you remained at the property all night and spent time going between the various sheds and Aunt Edie’s;
(d) you did not receive any further contact from Mr Pantic and had tried calling him a number of times after 4am the following morning, but there was no answer; and
(e) you tried to call Mr Pantic everyday, but his mobile phone was turned off.
At the hearing of the application for a sentence indication before me on 6 July 2023, the prosecution submitted, and I accept, that these conversations were an attempt made by you to conceal your involvement in the death of Mr Pantic.
On 17 April 2019, you called Mr Pantic’s mobile phone for the first time since he was reported missing and, of course, you received no response. By this stage, you had made a number of purported attempts to contact him following his death. Again, it is alleged by the prosecution, and I further accept, that such calls were an attempt to conceal your involvement in Mr Pantic’s death, and you were aware he was deceased at these times.
On 17 April 2019, Ms Teohaere sent you a text message with the following:
Hi sam its malina dale’s missus please if you know anything about where dale is or who he was going to see can u plz let me know coz our kidz r missing him like crazy n we just want him home, or wanna know that he’s ok
You told her that you were on your way to the police station and that Mr Pantic had $2,000 which belonged to you and you were not sure what to think. Before you arrived at the police station, you attempted to call Mr Pantic’s mobile phones three more times.
Acting Sergeant Ringin obtained a signed statement from you on 17 April 2019. Whilst making your statement, you made a further three calls to Mr Pantic’s mobile phones.
Between 11:23am on 18 April 2019 and 2:19pm on 22 April 2019, you made a further nine telephone calls. When you called Mr Pantic’s phone at 1:46pm on 22 April 2019, the mobile phone is said to have rang. You advised Ms Teohaere that Mr Pantic’s mobile phone had been switched on. At 2:18pm, you sent a text message to his mobile phone and then did not attempt to contact either one of his mobile phones for two months. At 3:23pm, you told Ms Teohaere to contact police about Mr Pantic’s mobile phone. You further told her that you had given Mr Pantic money to purchase ‘gear’, that you did not travel with him because you were ‘high’ and that Mr Pantic seemed normal when he left. You said that you did not know anything else.
These telephone calls mentioned were all part of the ruse you attempted in order to conceal Mr Pantic’s death, and your part in it.
On 11 June 2019, your partner, Amelia Taylor, provided her mobile phone to police to examine. Upon learning that she was cooperating with investigators, it is said that you spoke to a number of people about your worsening situation. Notably, you demanded that your sister smash her phone to ‘smithereens’ to make it unusable. You told another male associate that you were having a bad day and that you were ‘running out of time for freedom’.
On 18 June 2019, the Missing Persons Squad, in conjunction with Mr Pantic’s family, held a live media conference which focused on locating Mr Pantic and his vehicle.
On 18 September 2019, members from the Missing Persons, Search and Rescue Mounted Branch and Wellington Criminal Investigations Units commenced a large‑scale, two‑day forensic search of the farm pursuant to a search warrant.
Arrest and interview
You were arrested and interviewed by police later that day on 18 September 2019. You denied any knowledge or involvement in Mr Pantic’s death, or in the disposal of his mobile phone and vehicle. During the police interview, you gave conflicting accounts of what had happened on the night of Mr Pantic’s death and your movements on the days that followed. I do not propose to set out each contradiction. You were released pending further inquiries.
Procedural history
It appears that from September 2019 until November 2021, the investigation continued whilst you remained at large in the community.
On 10 November 2021, you were charged with murder and remanded in custody. Various section 198B examinations[2] were heard in this Court during 2022.
[2]Pursuant to the Criminal Procedure Act 2009 (Vic).
On 7 June 2023, you applied for a sentence indication hearing on a charge of manslaughter. The application was not opposed by the prosecution, so I proceeded to hear the application on 6 July 2023.
On 10 July 2023, I ruled that, should you plead guilty to the charge of manslaughter, I would impose a sentence of no more than nine years’ imprisonment with a non‑parole period of six and a half years. You accepted this indication and entered a plea of guilty to the charge of manslaughter on a new indictment on 12 July 2023, this being approximately 18 months after you were originally charged with murder.
A further series of occurrences then took place, which I shall now discuss.
On 23 October 2023, the Office of Public Prosecutions wrote to the Court seeking an adjournment of the plea hearing date, due to further information being provided by you to police (namely, in documents entitled ‘Letter to the Family of Dale Pantic’ and ‘Statement of Sam Blake’, which were not filed with the Court until April 2024). I shall say more about these documents later. The email stated, in part, that Search and Rescue squad divers were now hoping to conduct a search for Mr Pantic’s body over a number of days, although it was advised that, ‘the likelihood of finding anything significant after such a period of time is slim … the divers may also engage a hydrologist to ensure that everything is done to try and locate the remains of the body’. The plea was thereafter adjourned to allow these searches to take place.
On 10 April 2024, the Court was provided a statement of Detective Leading Senior Constable Jen Black, outlining the searches that had taken place following your provision of information to police in October 2023. This statement outlines the numerous targeted searches that were conducted by police investigators, Water Police and the Search and Rescue squad in the Thomson and Avon rivers and surrounding areas, during days in October and December 2023 and February 2024. All of these extensive searches proved futile and Mr Pantic’s remains were not located.
The plea hearing then proceeded on 30 April 2024. The Court was provided the two documents that you had earlier provided to police on 19 April 2024.
Victim impact statements
The Court received a number of victim impact statements from those closest to Mr Pantic, all of which I have read and carefully considered.
Jovan Pantic
Mr Pantic’s father, Jovan Pantic, described in his victim impact statement the close father‑son relationship they shared and the mental, physical and financial impact his death continues to have on him. He expressed his desire to locate his son and give him the farewell he deserves. He pleaded with you to tell him where his son is.
Ruzica Pantic
Mr Pantic’s mother, Ruzica Pantic, described her son as her pride and strength in life, whose death has caused her great suffering, pain and sadness that will remain with her for the rest of her life.
Bozana Pantic
Mr Pantic’s sister, Bozana Pantic, described her brother as her everything, someone she would rely on for comfort and advice during difficult times, and wrote about the tremendous void she now feels. She wrote about the impact her brother’s disappearance has had on her mental health and her difficulty concentrating, remembering and being motivated to get up in the morning and go on with her day.
Katherine Pavlovic
Mr Pantic’s former partner and the mother of his two eldest daughters, Katherine Pavlovic, described the day she learnt of his disappearance as the ‘darkest day of her life.’ She was tasked with the terrible job of having to tell their children that their father was missing and watched them hold onto hope that he would be found, hope that they began to lose as time passed.
Malina Teohaere
Mr Pantic’s partner and the mother of his three youngest children, Malina Teohaere, described your actions as having sentenced her and their children to a lifetime of missed moments, laughs, hugs, achievements, adventures, support and love.
Maya and Kiara Pantic
The final two victim impact statements were written by Mr Pantic’s eldest daughters, Maya and Kiara Pantic. They described the close bond they shared with their father and the difficulty they face coming to terms with his death.
In addition to the victim impact statements, the Court received a document filed by the prosecution titled ‘Impact of Offending on Family’ dated 6 June 2023, which sets out the impact Mr Pantic’s death has had on his five children, his current and former partner, and his parents. I have read this document and considered it in determining the appropriate sentence to be passed in this matter.
Personal circumstances
You were born on 20 July 1988 and are now 35 years of age. You were born and raised in Sale, with your family having owned and farmed land on the outskirts of Sale for many years. You have two sisters. Your parents separated when you were a child. You have maintained a close relationship with your father, despite having lived predominantly with your mother.
You attended school until Year 11 and report no adverse academic issues. On leaving school, you worked at the local IGA and later obtained employment as an Offshore Service Technician, on offshore oil rigs in Australia and overseas. You later obtained steady employment at a rig off the coast of Darwin.
When 21, you moved to Geelong for two years, to be with your girlfriend at the time. At the age of 25 you purchased a property in Sale. The relationship with your girlfriend ended when you were 27.
Despite only experimenting with drugs in your teenage years, it is reported that on this relationship breakdown, you commenced using methylamphetamine and became dependent on that drug, later failing a random drug test at work and losing your job in 2016. Being unemployed with an increasing drug problem, you withdrew significant amounts from the mortgage on the Sale property.
Having served a period of imprisonment, which I shall say more about shortly, upon your release from custody in 2018, you lived with your father and worked on the family farm. You ultimately had to sell the house in Sale, having defaulted on your mortgage repayments. At the height of your drug addiction, you report having used up to half a gram of methylamphetamine a day.
Criminal history
You have a previous criminal history comprising two court outcomes in 2017 and 2020.
The matter in 2017 involved a number of driving offences, possessing an unregistered handgun and ammunition, possessing stolen goods, and a number of bail offences, as you were on bail at the time of this offending. The total effective sentence imposed by the Sale Magistrates’ Court was eight months’ imprisonment.
The 2020 matter involved charges of trafficking methylamphetamine, possessing methylamphetamine, dealing with property being the suspected proceeds of crime, driving whilst disqualified and possessing a controlled weapon without excuse, along with a number of other driving offences. You were sentenced to a total effective sentence of four months’ imprisonment.
It is acknowledged that you have no criminal history for violent offending.
Mental health
With respect to your mental health, you report having been diagnosed with anxiety and depression in about 2016 and having been prescribed anti‑depressant medication since that time. No independent medical records have been provided to the Court regarding these diagnoses. You were, however, assessed by Forensic Clinician Karly Doyle in November and December 2022 who opined that you may have been relying on methylamphetamine in an attempt to self‑medicate negative symptoms associated with depression and anxiety disorder. I note this letter was prepared for the purposes of a bail application. No submissions relating to the principles laid down in the decision in R v Verdins[3] were advanced on your behalf.
[3][2007] 16 VR 269.
Submissions for Blake
It was submitted by counsel on your behalf that your plea of guilty was entered at the first available opportunity, despite it being some five days before your trial on the charge of murder was due to commence. It is well recognised by this Court that a plea of guilty is of great utility as it avoids the need for a lengthy trial, promotes finality, and spares witnesses the burden of giving evidence.
It is further submitted on your behalf that your plea of guilty is indicative of your remorse and willingness to accept responsibility for your actions. Counsel relied on two factors to demonstrate this. Firstly, after you entered a plea of guilty, you provided a letter to Mr Pantic’s family. It was submitted that this letter reflects poignant elements of your remorse and insight, and that in particular:
(a) you recognised the inadequacy of your words in comparison to the grief that you have caused;
(b) you do not purport to fathom the breadth of the heartbreak experienced by Mr Pantic’s family;
(c) you characterise your actions as ‘selfish’, ‘disgusting’ and ‘shameful’, and without thought to others;
(d) you acknowledge that you killed an innocent man and the hurt that you have caused is permanent and cannot be remedied; and
(e) you are burdened by a deep sorry and regret for your actions and their consequences.
Secondly, in a further signed statement, you put forward a description of how you killed Mr Pantic, the last known location of his body, and what happened to his belongings. In particular, you said that:
(a) you struck Mr Pantic with a nearby piece of wood during a physical altercation;
(b) you transported and deposited Mr Pantic’s body into the Avon River via a boat‑ramp on Springberg Lane, in the locality of Perry Bridge, before returning to the farm and lighting a fire which you used to burn the sheet he had been wrapped in, the clothes you had been wearing and anything flammable in the car;
(c) you threw Mr Pantic’s mobile phone out the window at a location near Wurruk, and you disposed of the pram and car seats into the Thomson River; and
(d) Mr Pantic’s car was stored at a particular premises before being driven to a residence in Labertouche belonging to a person who you asked to sell the vehicle or, alternatively, to get rid of it.
It was submitted that as this information was not previously known to investigators, and it put into motion an extensive search for Mr Pantic’s remains, which regrettably, proved to be unsuccessful given the passage of time and other factors. Geomorphologist Dr Dean Judd, in his report dated 12 December 2023, noted the following in respect of the investigation:
(a) the state of scientific learning about the transport of full human bodies in fluvial environments is extremely limited;
(b) it was possible that the body made its way out to Lake Wellington; and
(c) there have been nine flood events since the body was deposited into the river; the first being in July 2020 and the last in October 2023, which may have caused the body to shift or the remains to be buried in the sands.
Nevertheless, your counsel submitted that, in all the circumstances, your cooperation in providing both the last known location of Mr Pantic’s body and the mechanism of his death should be regarded as significant mitigating factors, even though his remains could not be located. It is submitted that you were not obligated to reveal this information, however, had done so in an attempt to provide his family with closure.
In support of this argument, Mr Casement drew attention to Croucher J’s decision in R v Moreland; Tippins & Thorp, during which his Honour said:[4]
Whether classified as the absence of, or the offsetting of, aggravation that concealing and burning a body involves or as a mitigating factor in its own right, there is good reason to encourage those who do the decent thing, albeit in this case much later than they might have done, and disclose the whereabouts of a body, by the imposition of a sentence that is less severe than it would be absent that disclosure. In the same way that assistance to the authorities – in the form of turning Queen’s evidence – is encouraged by a reduction in sentence, whatever its motivation, so too should assistance of the type that Mr Moreland has engaged in be encouraged by a reduction in sentence, whatever its motivation. Such disclosure at least has the potential to benefit the family of the deceased by giving them certainty regarding the deceased’s fate and the opportunity to bury or otherwise deal with his remains.
[4][2015] VSC 324, [66].
It was submitted that it is open to the Court under section 5(2CA) of the Sentencing Act 1991 (Vic) [‘the Act’] to have regard to the attempt at cooperation. This provision, which I will discuss in more detail later in these reasons, allows the Court to take into account cooperation by an offender found guilty of manslaughter in circumstances where he or she has assisted in the investigation to identify the last known location of the body and the place where the body of the victim may be found. Your counsel submitted that you have satisfied this requirement by providing the material that you have, and the Court should have regard to this in sentencing you, as a mitigating factor.
Submissions for the prosecution
It is submitted by the prosecution that the various steps taken by you to conceal your involvement in the deceased’s death, and the concealment of his body, are relevant in the consideration, and assessment, of your level of remorse. The following factors in particular were emphasised:
(a) you took a number of steps to dispose of the deceased’s car, including attempting to give it to an associate in exchange for satisfaction of a debt, and later trying to sell it to another two people, who both declined. The vehicle has since been unable to be located;
(b) you contacted the deceased’s mobile phone a number of times in the knowledge he was already deceased; and
(c) you lied to police when they first attended the farm on 14 April 2019, when a search warrant was executed on 16 April 2019, and in your Record of Interview.
With respect to the question of your mental health and any impact that may have on the sentence to be passed, the prosecution submits that none of the factors in Verdins are enlivened in this matter.
As to sentencing factors, the prosecution submits that the principles of general deterrence, just punishment and denunciation should be given significant weight, and your prospects of rehabilitation are tied to being abstinent from drugs, particularly methylamphetamine.
The prosecution has also made written and oral submissions about the application of section 5(2CA) of the Act. The prosecution submits that the Court must be satisfied that you have in fact cooperated in the investigation of the offence to identify the last known location of the deceased and where his remains may be found. It is pointed out that the basis of this cooperation is the Blake Statement. The prosecution does not make any positive submissions as to whether you have been honest and truthful in making this statement.
Further, the prosecution submits that the second step is to consider the actual value of the cooperation offered. It is pointed out that the deceased’s body was unable to be found, and therefore the Pantic family has not received the small degree of closure they might have received had his body or remains been located. The prosecution pointed to the cases of R v Moreland; Tippins & Thorp[5] and R v Mitchell[6] as examples of cases in which accused persons offered assistance in locating the bodies of their victims. The prosecution ultimately submits that, if in the event the Court is satisfied that you genuinely cooperated with investigators, section 5(2CA) only has limited application, if any, given:
[5][2015] VSC 324.
[6][2005] VSC 219.
(a) the deceased’s body was not located;
(b) the cooperation is of limited value where you only disclosed the purported location of the deceased’s remains in the Avon River four and a half years after the incident, this being over a time in which there have been nine flood events; and
(c) the family of the deceased have, therefore, not received any closure. Further, it was submitted at hearing that the false hope provided by the extensive searches undertaken in the Avon River system may have in fact resulted in further anguish.
In the end, the prosecution submits that the making of the Blake Statement was plainly motivated by self‑interest, given its timing following the provision of a sentence indication, and the lengthy period of time that has elapsed since the deceased’s death. The prosecution also submits that the letter to the deceased’s family is more akin to a statement of regret for the circumstances you find yourself in.
As a result, it is submitted that you have shown limited, if any, genuine remorse, contrition, and insight into your offending.
Analysis and discussion
Sentencing factors
Maximum penalty
As above, the maximum penalty for manslaughter, at the time of this offence in 2019, was 20 years’ imprisonment. It is not a standard sentence offence. I note that the maximum penalty for manslaughter increased from 20 to 25 years’ imprisonment in 2020.
As manslaughter is a category 2 offence under the Act, section 5(2H) requires the Court to impose a custodial order unless one of the exceptions set out in the Act applies. None of those circumstances appear to be relevant here, and no party argued otherwise.
The seriousness of the offending
An assessment of the gravity of your offending becomes more challenging in circumstances where, apart from the version of the events you have provided, there is no objective evidence as to how you caused the death of Mr Pantic. In these circumstances, it was agreed between the parties for the purpose of the sentence indication hearing that you caused Mr Pantic’s death by committing an unlawful and dangerous act, with the prosecution accepting that the Court should sentence you on the basis that the act causing the death involved an objectively ‘low’ level of gravity.
In your signed statement, you state that you had an argument with Mr Pantic, which descended into a wrestling match on the ground. In what you described as an act in the ‘heat of the moment’, you grabbed a log within arm’s reach and hit Mr Pantic on the head with it. You do not recall how many times you hit him.
Whilst the prosecution did not resile from the agreement that the act causing the death involved an objectively ‘low’ level of gravity, after the receipt of your undated statement, the prosecution has encouraged me to consider that on the version of events you have now presented, I can take into account the level of trust between you and Mr Pantic, and the fact you appeared to have lured him to the farm that day to take his vehicle as payment of the drug debt he ostensibly owed. Whilst there is no evidence you had violence in mind when you did this, I do consider that the luring of him in these circumstances aggravates your offending to some degree. In my opinion, it is open to conclude there was to be some form of confrontation at the farm, and the fact that it developed into the physical violence you described, is unfortunate. You could have stepped away from the argument at any point and avoided a physical confrontation. Overall, I am of the view that the gravity and seriousness of your overall offending sits between the low and middle range for this type of offending. On your version of events, you took up a weapon, and struck him with it, resulting in his death.
Application of section 5(2CA) of the Act
Section 5(2CA) of the Act provides as follows:
(2CA)In sentencing an offender who has been found guilty of murder, conspiracy to murder, accessory to murder or manslaughter in circumstances in which the body or remains of the deceased victim have not been located, a court may have regard to whether the offender has cooperated in the investigation of the offence to identify—
(a)the location, or last known location, of that body or those remains; and
(b)the place where the body or remains of the victim of the offence may be found.
The prosecution noted in its written submissions that the rationale behind the introduction of this provision in 2016 involved a recognition that cases in which the body of the deceased person is not found, ‘cause particular distress to victims’ families and our laws must not provide false hope’.[7] To rely on this provision, the Court must be satisfied on the balance of probabilities that you indeed cooperated in the investigation of the offence to identify the last known location of Mr Pantic’s body or remains. I have synthesised my consideration of the impact of this provision with a consideration of your levels of moral culpability and remorse, as they seem inherently tied, and I will deal with this now.
[7]Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2016, 4727 (Lisa Neville).
Moral culpability and remorse
I will now turn to a consideration of your moral culpability and remorse.
There are some serious aspects of aggravation to your offending, particularly in regard to the actions you took after committing the unlawful and dangerous act that lead to Mr Pantic’s death. These included the disposal of his body, the disposal of the vehicle you used to transport his body, the various lies and inconsistent statements made to police, and the deceitful attempts to ‘contact’ Mr Pantic’s phones after you caused his death, in order to obscure your involvement and redirect suspicion away from yourself. You disposed of various items in a number of different locations, including a mobile phone that was recovered in a township outside Sale. You clearly went to great lengths to cover your tracks in the immediate aftermath of Mr Pantic’s killing. In my opinion, the deceitful untruths you told to his partner, and the constructed telephone communications, gave these people false hope that Mr Pantic may still be alive. These actions amounted to examples of cruelty on your part, for which you must be condemned.
It also falls to the Court to consider whether your offers of assistance were genuine, on the balance of probabilities.[8] There is no way to verify the veracity of your version of events, because of this delay involved, and the approach you took to covering up your crime. Your offer of assistance also came at a very convenient time, after a sentence indication was provided by this Court on the charge of manslaughter, which was accepted, thereafter placing a legislative hurdle on the Court from imposing a sentence any more severe than that indicated.[9] Further, if I am to accept the manner and circumstances of the disposal of Mr Pantic’s body that you have set out in your undated statement, the prospects of locating Mr Pantic’s body were always low if not impossible. I accept the prosecution submission that you were likely to have appreciated this fact, both when you first disposed of the body, and when you finally offered to assist the police. Failing to offer this assistance at an earlier stage has added to the anguish of the Pantic family.
[8]R v Storey [1998] 1 VR 359.
[9]Per s 209 of the Criminal Procedure Act 2009 (Vic).
Whilst the Court must encourage offenders to provide information to police that might provide families closure in cases of homicide, in this case it was too little, too late. It is difficult to accept this purported offer of cooperation at face value, as a genuine offer to assist, in all the circumstances. I have considered the line of cases in relation to the motivation behind offers to assist police later in this judgment.
It must also be said that the information you provided to police during the latter half of 2023 via your undated statement proved completely futile, which is hardly surprising given the many intervening flood events and long stretch of time that passed between Mr Pantic’s killing and the provision of this information. As I have already observed, it also appears to have had the unintended consequence of causing Mr Pantic’s family, in the words of the prosecutor, ‘further anguish as a result of what has followed from this purported cooperation’; in short, providing false hope.
In terms of remorse, your counsel placed significant weight on the letter of apology, authored by you and directed towards Mr Pantic’s family, whereas the prosecution submits that this letter does not evince a deeply held remorse, contrition or insight. This letter does indicate that you are aware that you have caused indelible grief, and acknowledge that your actions were disgusting, shameful and thoughtless. The information provided to police in the undated statement, including the final details of the mechanism of death and the purported location of Mr Pantic’s remains, of course indicates a level of remorse and willingness to finally account for your actions, many years after the relevant events. However, it must be said that there is a level of self‑interest and self‑pity evident in this letter. You describe feeling like part of your soul died that night, and that what you did has weighed on your mind constantly and eaten deep into your conscience. You note that you are ‘mentally free’ now as a weight has been lifted from you, since pleading to this offence. I am prepared to accept, however, that the writing of this letter appears to serve a purpose of catharsis and unburdening yourself of the shame surrounding the terrible crime you have committed.
Ultimately, I am only prepared to accept, as was the prosecution submission, that any mitigation to be afforded by either the purported offer of cooperation, which I do not accept as completely genuine, and your expression of remorse, is on the minor side. I accept, with some hesitation, that your offer of cooperation was at least, in some part, genuine, despite ultimately being futile. Ultimately, I have taken the effect of this provision into account in a minor way in mitigating the sentence to be imposed.
Finally, I point out that no Verdins factors have been advanced on your behalf. In light of the above, I consider your moral culpability for this offending to be towards the higher end.
Guilty plea
Your guilty plea is of significant utility. It goes without saying that it has saved substantial court time and resources, and spares the family and friends of Mr Pantic significant difficulty and pain, as well as providing some degree of certainty and closure. Your counsel also submit that it points to regret and a willingness to accept responsibility for your actions. These are no small matters, and they mitigate the sentence to be imposed.
However, there was a four year gap between the offending conduct and you entering a plea of guilty on the charge of manslaughter. A murder trial was set to commence the following week. As observed, the information in your statement was only revealed to police in October 2023, after you had received a sentence indication for the offence. It goes without saying that this has been an extremely drawn out and painful process for those affected, and they still suffer the effects, which doubtless will remain for the rest of their lives. I can well understand that they will regard the outcome of the proceedings as very unsatisfactory. It cannot be said that your plea came at the earliest possible opportunity. All these matters have been taken into account in my formulation of the sentence to be imposed.
Current sentencing practices
I have had regard to a number of past sentencing decisions in determining your sentence for this offence. They include:
(a) R v Williams:[10] The offender in this matter struck the deceased woman on the head a number times with a weight bar and dumbbell during an altercation, causing her death. Upon learning that she had died, the offender drove to the Blue Mountains, where he dumped her body in the bush. He then returned home and stole her jewellery, which he pawned. He later returned to the Blue Mountains and transferred her body to a location more difficult to reach. Notably, he led police to the spot where he had hidden her body months following his arrest. By that time, the body had decomposed and only skeletal remains were found. No real forensic assistance was obtained from her remains. He was convicted of manslaughter by a jury and sentenced to 14 years’ imprisonment with a non‑parole period of 10 years and 6 months.
[10][2004] NSWSC 189 (O’Keefe J).
(b) R v Moreland; Tippins & Thorp:[11] The three co‑accused in this matter were each found guilty of manslaughter by a jury for their involvement in ambushing, assaulting and abducting the deceased, who died shortly after. His body was disposed of in an unknown location. Following the guilty verdicts (but before the plea hearings), the first and second accused disclosed the location of the deceased’s body, which authorities located. Both accused were sentenced to 12 years’ imprisonment with a non‑parole period of 9 years.
[11][2015] VSC 324 (Croucher J).
(c) Ristevski:[12] The offender pleaded guilty to the manslaughter of his wife, whose body he concealed in isolated bushland. The method of the killing is unknown. The body was discovered eight months later by two horticultural contractors. The offender did not offer this information to authorities. On appeal, the offender was resentenced to 12 years’ imprisonment with a non‑parole period of 9 years.
(d) R v Smart:[13] The offender in this matter was found guilty of manslaughter by a jury for the death of his house‑mate, whose body he disposed of at an unknown location and never disclosed its whereabouts. Notably, the offender engaged in conduct following the incident to lay a false trail and destroy forensic evidence. He was sentenced to 11 years’ imprisonment with a non‑parole period of 8 years.
(e) R v Veerman:[14] The offender in this matter pleaded guilty to manslaughter. The circumstances of the deceased’s death were unclear. The offender concealed the deceased’s body in remote bushland, which was located 12 days later by a bushwalker. Notably, the offender had a drug history. He was sentenced to 9 years’ imprisonment with a non‑parole period of 6 years.
[12]DPP v Ristevski [2019] VSC 253 (Beale J); DPP v Ristevski [2019] VSCA 287 (Ferguson CJ, Whelan and Priest JJA).
[13][2008] VSC 155 (Lasry J).
[14][2015] VSC 193 (Hollingworth J).
Having regard to these cases and the present case at hand, it is obvious that there are both similarities and dissimilarities. The sentence I will impose on you has been determined based on the particular circumstances of this offence and your particular circumstances.
Sentencing purposes
General deterrence, denunciation and punishment
You must be justly punished for your actions, in a manner the community would consider fair in all the circumstances. Your actions after the offending have made it difficult to objectively determine the exact manner in which you caused Mr Pantic’s death. Nevertheless, even if your account is accepted, yours was serious offending, for which you will serve a significant period of imprisonment.
The sentence imposed must also serve the purpose of deterring the general community from engaging in similar behaviour. Nothing suggests that you are not an appropriate vehicle for general deterrence; and there is to be no reduction of the weight of this factor on the basis of the application of any Verdins principles. Your violence was callous and an example must be made of you.
Further, it is important that the Court denounce your actions. A life was cut short in a violent and senseless act, and because of your actions, a family has lost their loved one and had very little by way of closure surrounding the last moments of his life and the whereabouts of his remains. Such behaviour cannot be tolerated by the community.
Specific deterrence, rehabilitation and protection of the community
I have had regard to your criminal history in considering the application of specific deterrence as a sentencing factor. You do not have a spotless record, though I accept the submission that this offending represents a significant step up in gravity. I also accept that your plea of guilty, though coming late and at an opportune time, lessens the emphasis to be placed on specific deterrence somewhat. However, I hesitate to accept that your expressions of remorse are totally genuine indicators of your insight and regret. There is certainly a need for some specific deterrence to factor as part of the sentencing calculus; the sentence of imprisonment you will serve must deter you from ever engaging in such behaviour again.
As to your prospects of rehabilitation, I have not been availed of any expert reports regarding your level of risk of violent future offending, or the like. It has been submitted that you were a young man, with a good job, and a desire to have a family of your own before you ‘rapidly declined’ into the world of drug trafficking to support your drug habit and pull yourself out of debt. It has been submitted on your behalf that you have insight into the negative effects of your drug use and that you are using your time in custody productively, working in the prison metal industries and completing a number of courses in respect to drug and alcohol abuse and relationships. You also have a supportive family, a strong protective factor in your favour. It must be hoped that your time in prison will have a salutary effect on you and force you to reflect further on the trauma and pain you have caused Mr Pantic’s family. As I have commented already, however, your remorse and insight levels appear mixed, and I therefore regard your prospects of rehabilitation as somewhat guarded.
Community protection is also a relevant consideration. You will one day be released from custody, still a relatively young man, and you may pose a danger to the community. However, given this is your first violent offence, and given the time you will spend in custody, this factor does not weigh as heavily in the sentencing process, though I make the comment that addressing your substance abuse issues, and reflecting on the significance of your actions and their lasting impacts on the family and friends of Mr Pantic, is likely to be a significant aspect of your future rehabilitation and therefore the safety of the community upon your release.
Sentence
Having taken all of these factors into account, I sentence you to be imprisoned for nine years.
Taking into account the desirability of giving you a lengthy parole period, I order that you serve six years’ imprisonment before being eligible for parole.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 12 years’ imprisonment with a non‑parole period of 9 years.
Pre-sentence detention
I further declare that that you have served 1,010 days of pre‑sentence detention, not including this day.
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