Director of Public Prosecutions v Lee
[2023] VSC 437
•31 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0031
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODNEY LEE |
---
JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 May 2023 |
DATE OF SENTENCE: | 31 July 2023 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Lee |
MEDIUM NEUTRAL CITATION: | [2023] VSC 437 |
---
CRIMINAL LAW – Sentence – Murder – 2 charges – Guilty plea to both charges – Serious violent offender – Use of firearm – Advanced age of offender – Sentenced to total effective sentence of 30 years – Non-parole period of 24 years – Crimes Act 1958 (Vic), s 3 – Sentencing Act 1991 (Vic), ss 5, 5A, 5B, 6AAA, 6B, 6D, 6E, 6F, 11, 11A, 18.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | P Bourke KC with M Mahady | Director of Public Prosecutions |
| For the accused | A Waters | Victoria Legal Aid |
HIS HONOUR:
A. Introduction
Rodney Lee, on 17 February 2023, you pleaded guilty to the murders of Saumoto Gasio and Tibor Laszlo at Mordialloc in Victoria on 13 January 2022.
The maximum penalty for murder is life imprisonment.[1] The standard sentence for murder is 25 years’ imprisonment.[2]
B. Circumstances of the offending
[1]Crimes Act 1958 (Vic), s 3(1)(a).
[2]Crimes Act, s 3(2)(b).
B.1 Background to the offending
You murdered Mr Gasio and Mr Laszlo at the unit complex in McDonald St, Mordialloc (“the Unit Complex”), where all 3 of you lived in separate units. The Unit Complex was situated on land owned by the Mordialloc Presbyterian Church, but was managed and operated as public housing. In the period leading up to the murders, the dynamic between you and other residents of the Unit Complex, including Mr Gasio and Mr Laszlo, had grown increasingly hostile. For the purposes of providing context, it is instructive to describe some of the interactions that took place between you and other residents of the Unit Complex in the years and months leading up to the offending.
You first moved into the Unit Complex in October 2006, and reported living there without conflict for a number of years. From the time you moved in, you provided assistance to other residents and took an active role in maintaining the communal areas of the Unit Complex, including repairing and replacing drainage, installing heating, fixing issues with hot water and water pressure, and mowing the communal lawns from time to time. You also planted and maintained a communal garden at the Unit Complex, in which you took great pride and joy. In fact, you told police that you “put everything” into this garden.
Your relationships with other residents at the Unit Complex began to deteriorate sometime around 2020. You made verbal complaints to neighbours about loud music, and became increasingly bothered by other residents’ consumption of alcohol in communal areas. You also took exception to their unwillingness to provide assistance with tasks such as gardening and taking out the bins. Further, you had repeated confrontations with the other residents over them turning off a tap connected to a hose you used to water the communal garden, which you would often leave running.
Sometime in mid 2021, a new resident moved into Unit 15. You were unhappy about his presence at the Unit Complex as you perceived him to be too young to live there, and you became convinced that he was cooking and dealing drugs from his unit. You made several unsuccessful attempts to turn other residents against this resident, and also made complaints about him to the police, the church and public housing authorities.
You also had several clashes with another fellow resident, Janice Bateman, over your dissatisfaction that she was allowing her grandson to reside in her unit with her. Due to his involvement with the new resident in Unit 15, you formed a belief that Ms Bateman’s grandson was also dealing drugs, and confronted Ms Bateman about this on a number of occasions. On 1 of these occasions, sometime in late 2021, you spat in Ms Bateman’s face following an argument the 2 of you had about her grandson.
B.2 Events on 13 January 2022
On 13 January 2022, at around lunchtime, you returned home from Southland Shopping Centre to the Unit Complex. After putting away your shopping, you went outside and turned on the tap connected to the hose to water the communal garden. You decided to leave the hose running whilst you returned to your unit, ate lunch and had a sleep.
Later that afternoon, you went outside and discovered that the garden hose had been turned off. You could not see anyone around at the time and yelled out in frustration, “I’ll kill you, you bastards”, presumably referring to other residents at the Unit Complex.[3] A short time later, you and a fellow resident, Robert Teear, had a heated exchange which culminated in you hitting Mr Teear with a garden chair.
[3]During your record of interview, you acknowledged you had said this but indicated that you did not mean anything by it at that time.
There were differing accounts of your altercation with Mr Teear. In your record of interview, you said that Mr Teear had come “flying” out of the bushes “wanting to fight” and you had “defended [yourself]” by swinging the garden chair at him. In contrast, Mr Teear told police that you came running around the corner “screaming” at him, using highly abusive and offensive language towards him, whilst holding a garden chair. It is unnecessary to make any findings about which version of these events was correct.
Later on the evening of 13 January 2022, a number of residents, including Mr Gasio, Mr Laszlo and Mr Teear, were socialising in the communal outdoor area of the Unit Complex. At approximately 9.00 pm, you left your unit to move the hose and discovered that the tap had again been turned off. When you went to turn the tap back on, you and Mr Gasio started arguing.
In describing your confrontation with Mr Gasio, you initially told police that Mr Gasio approached you, grabbed you by the hand and twisted your fingers backwards, and told you, in abusive language, to leave the hose off. You also told police that Mr Gasio told you that he could do anything he wanted with your life, because he “own[ed]” you and your life. However, you later clarified that it was you who made the first physical contact, pushing Mr Gasio after he told you to leave the hose off.
Your account of this interaction again differed from the accounts given by those who witnessed it. None of these witnesses described Mr Gasio as being physically violent towards you on the night of 13 January 2022. These witnesses stated that Mr Gasio accused you of wasting water and in response you were verbally abusive towards him, in substance calling him a worthless individual and telling him to “go back to where [he] came from”. Their evidence was that Mr Gasio told you that you were not welcome at the social gathering and that you needed to leave, and you walked off without saying another word. Again, it is not necessary to decide which account was accurate. Whatever was said, on no version of events could what was said by Mr Gasio explain or justify what occurred next.
Following your confrontation with Mr Gasio, you returned to your unit and armed yourself with a single barrel shotgun, which had belonged to your grandfather, together with several shotgun shells.
At approximately 9.08 pm, you left your unit and approached the group of residents sitting in the communal outdoor area. You took aim and shot Mr Gasio, who was sitting on a garden bench. Another resident in attendance at the social gathering, Anabella Soares, heard you say, “I’m going to kill all of you” before you shot Mr Gasio. Forensic testing indicated that Mr Gasio was shot in his left upper arm area from a range of approximately 2.4 to 3.4 metres.
Mr Gasio and Mr Laszlo ran and took cover in Unit 1, a nearby ground floor unit. During this time, you reloaded your shotgun and fired a single shot through the window of Unit 15, which was situated on the second storey of the Unit Complex.
You then made your way to the rear entrance of Unit 1. By this time, Mr Gasio had collapsed on the floor in the kitchen area. Mr Laszlo and Ms Bateman’s grandson, who lived in Unit 1, were providing whatever assistance they could to Mr Gasio. The grandson had called emergency services and was receiving instructions when you appeared in the doorway holding the shotgun.
Mr Laszlo and the grandson, who could do little to protect themselves, attempted to take cover behind the refrigerator. You took aim and shot Mr Laszlo, who immediately fell to the floor. Forensic testing indicates that Mr Laszlo was shot in the torso from a range of approximately 2.8 to 3.9 metres.
You then exited Unit 1 and again loaded your shotgun. You fired another shot at Unit 15, this time hitting the front door. Despite fearing for his own life, Ms Bateman’s grandson bravely continued attempting to assist Mr Gasio and Mr Laszlo until emergency services arrived at the scene.
At approximately 9.15 pm, police arrived at the Unit Complex and located you in your unit, still armed. From outside your unit, officers communicated with you and demanded that you put down your shotgun. You ignored this direction and instead stepped outside your unit and began raising your shotgun. Police again made demands for you to drop your weapon. Moments later, an unsuccessful attempt was made to shoot and disarm you. You retreated back into your unit and began writing a note detailing the events of the day.
Mr Gasio and Mr Laszlo were pronounced dead at the scene at 9.34 pm.
A short while later, at approximately 9.41 pm, you surrendered yourself to members of the Victoria Police critical incident response team. At 10.05 pm, when asked by detectives if you knew why you had been placed in custody, you said, “I killed them”.
C. Subsequent events
After you were taken into custody, you were transferred to the Moorabbin Police Station, where you were interviewed by 2 police officers. This interview was suspended at around 1.00 am on 14 January 2022, and resumed later on the morning of 14 January 2022. At the conclusion of this interview, shortly before 11.30 am on 14 January 2022, you were charged with 2 counts of murder.
During your interview, when asked about events on and leading up to 13 January 2022, you made full and frank admissions. On several occasions, you confessed to having shot both Mr Gasio and Mr Laszlo. However, your answers made clear that, rather than feeling regret or remorse for the deaths, you perceived yourself as having been victimised and provoked by them and the other residents of the Unit Complex.
You explained to the police that tensions had started “months back” when the new resident had moved into Unit 15. You described how the situation at the Unit Complex and your responses to it had turned other residents from friends to enemies; from talking to you to “hating [your] guts”. Your various grievances and hostile interactions with other residents were recounted at length. The differences between your accounts of your altercations with Mr Teear and Mr Gasio on 13 January 2022 and those given by other witnesses, to which I have referred previously,[4] appeared to demonstrate a desire on your part to cast yourself as the properly aggrieved party, and to explain your actions as the result of provocation by the other residents in the Unit Complex.
[4]See pars 10-13 above.
Whether or not your accounts of these interactions were accurate, nothing could justify the disproportionate, senseless and brutally violent way in which you responded. However, apparently in an attempt to explain your actions, you told police several times during your record of interview that you had just “had enough” of the situation, that “enough was enough”, and that the other residents “knew what they were doing was wrong”. Towards the end of the interview, you asked the 2 officers interviewing you, “I’ve been provoked a bit, haven’t I?”.
Your lack of remorse was also evident in the manner in which you spoke of the shootings during your record of interview. You conceded to police that Mr Gasio had had “absolutely nothing to do with any of this”, before asking rhetorically, “why didn’t he just leave the hose alone?”. While describing the events that occurred when you entered Unit 1 after shooting Mr Gasio, you told interviewers that Ms Bateman’s grandson ducked for cover, but Mr Laszlo “wasn’t so lucky”. Indeed, when asked at 1 point during your interview whether the grandson was your intended target, you stated that you “would have shot the bastard too” because he had “caused trouble, nothing but trouble”. Obviously, you are not being punished for comments such as these, but they clearly demonstrate your lack of remorse.
While you were being interviewed, members of the Victoria Police major crime scene unit attended the Unit Complex. They conducted a forensic examination and took photographs and videos of the scene. They also recovered the single barrel shotgun you used to shoot Mr Gasio and Mr Laszlo, 4 fired shotgun cartridges, 7 unfired shotgun cartridges and 2 shotgun wads.
On 14 January 2022, forensic pathologist Dr Paul Bedford conducted post-mortem examinations of Mr Gasio and Mr Laszlo. Dr Bedford concluded that Mr Gasio had suffered extensive shotgun injuries to the left arm and chest area, resulting in a fatal injury to the heart which ultimately caused his death. The post-mortem examination of Mr Laszlo showed that he had suffered a shotgun injury to the left lower chest and abdomen, which caused significant and fatal injuries to the large bowel, left kidney, inferior vena cava and aorta.
You have remained in custody since being charged on 14 January 2022, and pleaded guilty to the murders of both Mr Gasio and Mr Laszlo at the seventh committal mention of this matter on 17 February 2023. You were arraigned in this court on 6 March 2023, and again entered pleas of guilty in respect of both murders.
D. The victims
Saumoto Gasio was born on 29 September 1959 in Falelatai, a village near Apia, Samoa. He was 1 of 7 children, and is survived by his 8 children and 8 grandchildren. Mr Gasio taught boxing and taekwondo for 25 years, until he was forced to stop due to health problems.
Tibor Laszlo was born on 16 April 1964 in Sydney. He moved to Croatia at a young age, where he completed primary and secondary school, and then to Germany to undertake an apprenticeship at goldsmith school as a gem-setter and jeweller. Mr Laszlo was an impressive linguist, speaking English, German, Croatian and Hungarian. He worked as a jeweller until his death.
E. Impact on victims
Victim impact statements of 3 of Mr Gasio’s children, Rasta Gasio, Dijana Gasio and Jeorja Nola Bullen, and 2 fellow residents at the Unit Complex who were witnesses to the offending, Peter Reading and Robert Teear, were provided to the court. Rasta Gasio and Ms Bullen also read their statements in court at the plea hearing. Each of the victim impact statements clearly demonstrated the devastating and lasting impact that the deaths of Mr Gasio and Mr Laszlo have had on their families and friends. Mr Reading’s and Mr Teear’s statements also described the lasting and traumatic impact of the events they witnessed on 13 January 2022. I have taken each of these statements into account in determining the appropriate sentence to impose on you.
F. Circumstances of the offender
F.1 Personal background
You were born in Melbourne on 6 January 1949. You were 73 years old at the time of your offending, and you are now 74 years of age.
You are the middle child of 5 children and you were raised predominantly in the Moorabbin area. Your father was an alcoholic and was frequently and severely emotionally and physically abusive towards you, your mother and your siblings. When you were 16 years old, you helped your mother and your younger brothers flee the family home.
Your formal education was limited. Due to your turbulent family environment and financial stresses at home, your schooling concluded at the end of primary school. At 13 years old, you commenced your first full-time job as a shoemaker. Your employment was relatively stable throughout your working life, and you were employed in a range of roles, including as a farmhand, a machine operator, an assistant at a butcher’s shop, a cleaner and a forklift driver.
You retired at the age of 58 years old. Following your retirement, you volunteered as a handyman and cleaner at the Mordialloc Presbyterian Church. In the years immediately prior to your offending, you also regularly attended the Mordialloc Men’s Shed, where you were involved in activities such as making kindergarten toys, repairing furniture and making furniture for a women’s refuge, amongst other things.
You have described yourself as a socially isolated individual. You never married, you have not had a partner for many years and you have no children. You have had minimal contact with your siblings during your adult life and you have experienced difficulty cultivating lasting friendships.
Your counsel stated that you had not consumed alcohol in more than 9 years and do not use illicit substances. During a recent psychological assessment, you denied ever having an alcohol dependence and said that you reduced your alcohol consumption “many years ago” but that you would “have a Guinness every now and then”. You adamantly denied ever using illicit substances. When it was raised with you that your medical records indicated that you had a history of opioid use, stimulant use and cannabis use, you were unable to explain the discrepancy. In any event, there was no evidence to suggest that you were under the influence of drugs or alcohol at the time of your offending.
At the time of your offending on 13 January 2022, you had no prior criminal convictions.[5] Your lack of a criminal history is a matter I have taken into account, including with respect to factors of specific deterrence and your prospects of rehabilitation.
F.2 Expert evidence
[5]There is some evidence before the court to suggest that on 10 May 2022, you were found guilty of an unlawful assault of Ms Bateman, your former neighbour at the Unit Complex, on 30 November 2021. However, this evidence was not relied upon by the prosecution.
F.2.1 Psychological assessment
A report dated 5 May 2023 from Dr Mathew Barth, psychologist, provided an overview of your personal background, the circumstances of your offending and your current mental health status. Dr Barth reported that at the time of your psychological assessment, you did not meet the diagnostic criteria for any mood disorder, psychotic disorder or adjustment disorder. Nor was there any indication that you were labouring under any such disorders at the time of offending. However, you did present with symptoms of moderate levels of depression.
Dr Barth considered that your mental state was characterised by prominent persecutory ideation, as demonstrated by a belief that you were being targeted and threatened by other inmates in custody. Dr Barth described you as “very guarded and mistrustful of others” and noted that you presented with poor insight into your offending. He explained that the genesis of your current mental state is likely attributed to your dysfunctional personality traits, which appear to have originated from your chaotic and abusive upbringing and the impact this had on your psychosocial development.
It was reported that you are highly likely to be suffering from paranoid personality disorder. As a result, you continue to experience difficulty expressing remorse for your offending due to your fixed belief that you were being victimised, mistreated and threatened by other residents at the Unit Complex. According to Dr Barth, your dysfunctional personality is likely to have exerted a degree of impact on your ability to exercise appropriate judgment. Specific mention was made of your distorted and grossly exaggerated persecutory thoughts about the other residents at the Unit Complex, which continued to intensify in the leadup to your offending.
However, there was no indication from Dr Barth’s assessment that your maladaptive personality traits and lack of appropriate judgment impaired your functioning to such a degree that you were incapable of understanding the wrongfulness or consequences of your offending. In response to sustained questioning from Dr Barth during your psychological assessment about the gravity of your offending, you stated: “I have to live with it … No one deserves to die, not by my hand or anyone else’s”.
Dr Barth also conducted a detailed violence risk assessment which indicated that you are likely to represent no less than a “moderate risk” of recidivism. Your risk is said to be most relevant in situations where you feel victimised, threatened or humiliated by others. It was noted in this regard that you continue to experience persecutory ideation and you have been unwilling to engage with professional mental health services in custody.
F.2.2 Mobility assessment
The court also received a letter from the Department of Justice and Community Safety dated 3 May 2023. This letter was provided in response to a request from your solicitor for information about your access to health treatment and medication in custody and arrangements to assist with your mobility.
The letter outlines that you suffer from multiple complex medical conditions and chronic pain,[6] and notes that you require the use of a wheelchair for mobilisation. It describes the arrangements that are in place at the Metropolitan Remand Centre, where you are currently held, for the administering of medication and treatment for the management of these conditions, and the equipment and support services that are available to you.
G. Overview of sentencing considerations
[6]These include that you have had both hips replaced; require knee replacements; suffer from cellulitis (which requires ongoing dressing and treatment); and are on medication for various ailments, including arthritis, back and foot pain, and restless legs.
G.1 Sentencing guidelines
The only purposes for which sentences may be imposed are prescribed under section 5(1) of the Sentencing Act 1991 (Vic). These purposes include to punish the offender in a manner which is just in all of the circumstances; to deter the offender or other persons from committing offences of the same or a similar character; to establish conditions which may facilitate the rehabilitation of the offender; to manifest the denunciation by the court of the conduct in question; and to protect the community.[7] The court must adhere to the principle of parsimony and 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.[8]
[7]Sentencing Act 1991 (Vic), s 5(1). See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).
[8]Sentencing Act, s 5(3).
The court must also have regard to a number of other considerations set out in section 5(2) of the Sentencing Act, including but not limited to the standard sentence, if any, for the offence, current sentencing practices, the nature and gravity of the offence and the offender’s culpability and degree of responsibility for the offence.[9] The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case.[10] The balancing of different and conflicting factors to arrive at a sentence that is just in all the circumstances is a process known as instinctive synthesis.[11]
[9]Sentencing Act, s 5(2).
[10]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Director of Public Prosecutions v Walters (2015) 49 VR 356, 380 [94] (Whelan JA, dissenting); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); R v Williscroft [1975] VR 292, 300.8-301.3 (Adam, Starke and Crockett JJ).
[11]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ), 377-378 [51] (McHugh J).
G.2 Standard sentence scheme
Murder is a “category 1 offence” as defined under section 3 of the Sentencing Act. Pursuant to section 5(2G) of the Act, a term of imprisonment must be imposed for this offence. As outlined above,[12] the standard sentence for murder is 25 years’ imprisonment.[13] The period specified as the standard sentence is, taking into account only the objective factors affecting the relative seriousness of the offence, the middle of the range of seriousness.[14] The standard sentence is to be treated as a “legislative guidepost” and does not affect the established instinctive synthesis approach to sentencing.[15]
[12]See par 2 above.
[13]Crimes Act, s 3(2)(b).
[14]Sentencing Act, s 5A(1)(b).
[15]Brown v The Queen (2019) 59 VR 462, 464-465 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA). See also Sentencing Act, s 5B(3)(b).
The court that sentences an offender for a standard sentence offence must state the reasons for imposing the sentence and explain how it relates to the standard sentence.[16] I have endeavoured to do so in these reasons. I have taken into account all of the matters I am required to consider under section 5(2) of the Sentencing Act, including the standard sentence for murder.
[16]Sentencing Act, s 5B(4)-(5).
G.3 Serious offender provisions
The serious offender provisions of the Sentencing Act are also applicable in this case. Section 6B of the Sentencing Act defines a “serious violent offender” as “an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment…”. Murder is categorised as a serious violent offence.[17]
[17]Sentencing Act, sch 1, cl 3(a).
Accordingly, upon being convicted and sentenced to a term of imprisonment on the first charge of murder, you fall to be sentenced as a “serious violent offender” with respect to the second charge on the indictment. Pursuant to section 6D of the Sentencing Act, the court must regard the protection of the community as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[18] Quite properly, the prosecution does not seek the imposition of a disproportionate sentence in this case.
[18]Sentencing Act, s 6D(a)-(b).
Further, the sentence with respect to the second charge of murder must be served cumulatively on the sentence for the first charge, unless otherwise directed by the court.[19] Your serious offender status must also be entered in the records of the court.[20]
[19]Sentencing Act, s 6E.
[20]Sentencing Act, s 6F.
H. Nature and gravity of offending and purposes of sentencing
As rightly conceded by your counsel, murder is an inherently serious offence that is aggravated by the use of a weapon.[21] Not only this, but you murdered 2 people, in their places of residence, where they were entitled to be and to feel safe, in the presence of other residents of the Unit Complex.
[21]Sentencing Act, s 5(2)(c).
During your record of interview, you maintained that when you were engaging with police at the back door of your unit,[22] you said, “get them off to hospital and then we’ll talk”, referring to Mr Gasio and Mr Laszlo. Your counsel submitted that this statement, amongst other factors including that each death was the result of only a single gunshot that was not fired from “point blank” range, demonstrated you had an intention to cause at least serious injury but not death. The prosecution contended that your intention to kill was apparent from the close range at which you shot Mr Gasio and Mr Laszlo. Taking this into account, as well as the circumstances in which you shot Mr Laszlo, namely whilst he was trying to assist Mr Gasio,[23] and the evidence of Ms Soares immediately before you opened fire,[24] I am satisfied beyond reasonable doubt that you intended to kill Mr Gasio and Mr Laszlo.[25] I so find.
[22]See par 20 above.
[23]See pars 16-18 above.
[24]See par 15 above.
[25]Cheung v The Queen (2001) 209 CLR 1, 11 [9]-[10] (Gleeson CJ, Gummow and Hayne JJ).
While I accept your counsel’s submission that your offending was not premeditated in the sense that you had planned to take the action over an extended period of time, you had ample opportunities between the altercation with Mr Gasio in the garden, retrieving the shotgun, shooting Mr Gasio, reloading the shotgun and shooting Mr Laszlo, to reflect on what you were doing and desist. In assessing the gravity of your offending, I have taken into account the fact that you followed Mr Laszlo into Unit 1 and shot him while he was attempting to assist Mr Gasio, and that both victims were completely defenceless against you. The prosecution rightly described your offending as brutal and callous.
You must be punished in a way that reflects the seriousness of the crimes you have committed and in a manner which is just in all the circumstances. The sentence must reflect the court’s condemnation and denunciation, on behalf of the community, of your violent criminal conduct and disregard for the sanctity of human life.[26] You took the lives of Mr Gasio and Mr Laszlo deliberately and you endangered the lives of others at the Unit Complex. You acted in the knowledge of the wrongfulness of your conduct in circumstances where you had time to reflect on your actions and change course.
[26]R v Sok [2012] VSC 229, [16] (Beach J); R v Dupas [2004] VSC 281, [9] (Kaye J).
I accept the prosecution’s submission that your moral culpability is high.[27]
[27]Sentencing Act, s 5(2)(d).
Your counsel conceded that in addition to denunciation, general deterrence and just punishment have significant roles to play in the formulation of an appropriate sentence in this case. In respect to general deterrence, the sentence must convey to the community that those who carry out serious crimes of violence such as murder against their neighbours with the use of a firearm will be met with strong punishment.
The question of whether you present a risk of future harm to the community is more complex. In light of your serious violent offender status, protection of the community is the principal purpose for which a sentence must be imposed in relation to the second charge of murder. In that regard, I have taken into account the violence risk assessment conducted by Dr Barth, which indicated that you are likely to represent no less than a “moderate risk” of recidivism in part due to your continued persecutory ideation and refusal to engage with mental health services in custody.[28] I accept your counsel’s submission that the length of the sentence to be imposed and your age at the expiry of any minimum term must also be factored into any assessment of future risk.
[28]See par 45 above.
On account of the entrenched nature of your condition, your difficulty expressing remorse, your poor insight into your offending[29] and your unwillingness to avail yourself to treatment in custody,[30] I have assessed your prospects of rehabilitation to be low. However, on account of your age and the state of your health, the question of rehabilitation is of less relevance.
[29]See par 42 above.
[30]See par 45 above.
It is not insignificant that you are highly likely to spend the remainder of your life in custody.[31] However, this weighty consideration must be balanced against the severity of your crimes.[32] The desirability of avoiding a crushing sentence that would deprive you of any realistic prospect of useful life after release is a relevant factor which I have considered in assessing what justice requires in all the circumstances. That said, your counsel properly conceded that, given your age and the state of your health, you will almost certainly be imprisoned for the remainder of your life. The fact that you may not have many years to live does not relieve the court of its duty to impose a sentence that is reflective of the seriousness and gravity of your crimes.[33]
[31]R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA and Hollingworth AJA).
[32]CCR v R [2012] VSCA 163, [73] (Hansen JA, with whom Warren CJ and Redlich JA agreed), citing R v Bazley (1993) 65 A Crim R 154, 158.3 (Crockett, Hampel and Smith JJ).
[33]Compare, for example, Director of Public Prosecutions v Gonzalez [2022] VSC 331, [49] (Fox J).
Further considerations
Although you were not immediately cooperative with police following their arrival at the scene,[34] you made full admissions both then[35] and during your record of interview.[36] Your pleas of guilty were entered at the seventh committal mention, on 17 February 2023, with the delay the result of a need to obtain assessments of your fitness and capacity. Your counsel submitted, and the prosecution accepted, that you pleaded guilty at the earliest reasonable opportunity.
[34]See par 20 above.
[35]See par 21 above.
[36]See par 24 above.
Your conduct during your record of interview and your pleas of guilty have significant utilitarian value, and show a willingness on your part to facilitate the course of justice. They have resulted in the saving of police and court resources, as well as spared witnesses from giving evidence at a trial,[37] and entitle you to a meaningful sentencing discount.
[37]Phillips v R (2012) 37 VR 594, 605-606 [37]-[39] (Redlich JA and Curtain AJA, with whom Maxwell P agreed).
In addition, the fact that your pleas of guilty were entered during the currency of the COVID-19 pandemic means that they should be accorded more substantial weight in mitigation of sentence than a similar plea entered at a time when the community and the courts were not afflicted by the effects of the pandemic.[38] Although such effects have now largely passed, you pleaded guilty at a time when the criminal justice system was still facing substantial backlogs and criminal jury trials were particularly resource-depleting, and I consider the utilitarian value of your guilty pleas to be greater for this reason.[39]
[38]Surtees v The King [2023] VSCA 42, [9] (Kyrou and Kaye JJA), [64] (Walker JA); Worboyes v R (2021) 96 MVR 344, 365 [35]-[36] (Priest, Kaye and T Forrest JJA).
[39]Director of Public Prosecutions v Armstrong [2023] VSC 374, [111]-[112] (Tinney J).
Your counsel submitted that, applying similar logic, the impacts of the COVID-19 pandemic on your experience of custody to date ought also be taken into consideration. I accept this submission, although, as rightly conceded, this impact has diminished in more recent times. It is also noted, consistent with Dr Barth’s observations as to your social isolation and difficulty cultivating relationships,[40] there was no evidence that the pandemic has had the practical effect of restricting any opportunities for contact with or visits from friends and family.[41]
[40]See par 38 above.
[41]Compare, for example, Director of Public Prosecutions v Gonzalez [2022] VSC 331, [34] (Fox J).
In light of the arrangements and support services that are in place for treatment and management of your medical conditions in custody,[42] I do not consider that there is a significant risk that imprisonment will have a grave adverse effect your health.[43] Nor was such a submission made on your behalf. However, your counsel did submit, and I accept, that your poor physical health and mobility issues[44] make imprisonment more onerous for you, and this has been taken into account as a mitigating factor in sentencing.[45] Your advanced age likewise means that custody will be more burdensome for you, and this too has been considered as a factor in mitigation.[46] I note that soon after your arrest you attempted suicide by slashing your arm, and then spent a number of days in hospital as a result.
[42]See par 47 above.
[43]R v Van Boxtel (2005) 11 VR 258, 266-268 [29]-[33] (Callaway JA, with whom Ormiston and Charles JJA agreed).
[44]See par 47 above.
[45]Smith v The Queen [2018] VSCA 208, [30]-[35] (Whelan and Kyrou JJA); R v Van Boxtel (2005) 11 VR 258, 266-268 [29]-[33].
[46]R v RLP (2009) 213 A Crim R 461, 474 [32] (Neave and Redlich JJA and Hollingworth AJA).
Dr Barth’s report makes clear the link between your current mental state and your chaotic and abusive childhood, including exposure to violence and alcoholism from a young age.[47] Your childhood deprivation, the lasting impacts it has had on you and the role that these impacts played in your offending have the effect of reducing your moral culpability to some extent.[48] However, the significance of any mitigation in this regard must decrease in the face of other sentencing considerations, such as community protection and general deterrence.
[47]See pars 42-43 above.
[48]Bugmy v The Queen (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Also on the basis of Dr Barth’s assessment of your mental state,[49] the prosecution accepted that the considerations set out in R v Verdins[50] would have some application in the circumstances. I consider, consistent with Dr Barth’s findings,[51] that your paranoid personality disorder and prominent persecutory ideation impaired your ability to exercise appropriate judgment and to make calm and rational choices, and so reduce your moral culpability to a modest extent.[52] As your counsel submitted, it is also likely that these conditions will mean that a sentence will weigh more heavily on you,[53] and I have taken this into account as a mitigating factor.
[49]See pars 42-43 above.
[50](2007) 16 VR 269.
[51]See par 43 above.
[52]R v Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA).
[53]Ibid, 276 [32(6)].
I also consider that Dr Barth’s assessment of your mental state warrants a sensible moderation of general deterrence as a factor in sentencing.[54] However, Dr Barth’s report makes clear that your mental state did not impair your functioning to the degree that you were incapable of understanding the wrongfulness or consequences of your offending behaviour.[55] For this reason, any moderation applied has been relatively modest.[56]
[54]Ibid, 273 [17] .
[55]See par 44 above.
[56]R v Verdins (2007) 16 VR 269, 273-274 [20], quoting R v Wright (1997) 93 A Crim R 48, 51.1 (Hunt CJ at CL).
As was evident in both your record of interview[57] and in Dr Barth’s assessment of your mental state,[58] the level of remorse you have shown for your offending is very limited.[59] You have displayed a tendency to emphasise the conduct of others and cast yourself as the victimised party in almost all interactions with other residents at the Unit Complex. However, as conceded by the prosecution and consistent with Dr Barth’s views, I accept that your difficulty with expressing remorse is a product of your entrenched paranoid personality traits and psychological profile. I consider your lack of remorse to be a factor relevant to specific deterrence.
[57]See pars 24-27 above.
[58]See par 43 above.
[59]See par 44 above.
At the plea hearing, your counsel provided the court with a table of cases in which sentences have been imposed for murder as a standard offence. This table included 4 authorities involving multiple homicides.[60] The prosecution referred the court to 2 additional authorities concerning multiple homicides.[61] I have had regard to the sentences imposed in these cases in determining the appropriate sentence to pass on you.[62] However, it must be reiterated that current sentencing practices are only 1 factor to be taken into consideration, not the controlling factor.[63]
[60]Director of Public Prosecutions v PS [2023] VSC 85; Director of Public Prosecutions v Elliott & Fares [2022] VSC 554; R v Wilio [2022] VSC 86; R v Shaptafaj [2022] VSC 71.
[61]Director of Public Prosecutions v Clover [2019] VSC 123; Director of Public Prosecutions vKunduraci [2015] VSC 707. It should be noted that neither of these cases involved standard sentencing.
[62]See Sentencing Act, s 5(2)(b).
[63]Director of Public Prosecutions (Victoria) v Dalgliesh (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453-454 [82] (Gageler and Gordon JJ); Director of Public Prosecutions v Zhuang (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA).
J. Sentence
Taking each of the matters referred to above into account, and balancing the factors set out in the Sentencing Act as best as I am able, for the murder of Saumoto Gasio, I sentence you to 22 years’ imprisonment. I treat that as the base sentence.
For the murder of Tibor Laszlo, I sentence you to 22 years’ imprisonment.
Regarding the second charge of murder, I direct that a period of 8 years be served cumulatively on the sentence imposed on the first charge.
That makes the total effective sentence 30 years’ imprisonment. I fix a period of 24 years’ imprisonment as the period you must serve before you become eligible for parole.[64]
[64]Sentencing Act, ss 11(1), 11A(4)(b). Your counsel invited the court to order a non-parole period fixed at 70 percent of the total effective sentence. However, a non-parole period of 21 years would not adequately reflect the gravity of your offending or the other factors that have been taken into account.
I direct that it be entered in the records of the court that you were sentenced as a serious violent offender in respect of the second charge of murder.[65]
[65]Sentencing Act, s 6F(1).
For the benefit of Mr Laszlo’s family members, I note that the relatively modest degree of cumulation should not be taken as an indication of the court’s assessment of the value of Mr Laszlo’s life. Rather, it should be seen as the means by which the court has sought to ensure that the total effective sentence of imprisonment represents an appropriate and just response to your offending.[66]
[66]Director of Public Prosecutions v Marino [2011] VSCA 133, [53] (Kyrou AJA, with whom Buchanan and Nettle JJA agreed).
Pursuant to section 6AAA of the Sentencing Act, had you not pleaded guilty, I would have sentenced you to a total effective sentence of 40 years’ imprisonment, with a non-parole period of 32 years.
Pursuant to section 18 of the Sentencing Act, I declare that 565 days of imprisonment, not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[67]
[67]Sentencing Act, s 18(1) and (4).
K. Ancillary orders
Disposal and forfeiture orders will be made substantially in the terms sought by the prosecution. I note that these orders were not opposed by your counsel.
31
0