Director of Public Prosecutions v Missen
[2019] VSC 32
•4 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN MISSEN |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 and 20 November 2018 |
DATE OF JUDGMENT: | 4 February 2019 |
CASE MAY BE CITED AS: | DPP v Missen |
MEDIUM NEUTRAL CITATION: | [2019] VSC 32 |
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CRIMINAL LAW – Sentence – Murder – Plea of Guilty – Son murdered his father – PTSD and depression – drug abuse – co-dependent relationship – spontaneous offence – sustained attack on victim – efforts of concealment of offence - delay in sentencing – limbs 1, 3 and 4 of Verdins – sentence of 21 years’ imprisonment with a non-parole period of 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Robyn Harper | Office of Public Prosecutions |
| For the Accused | Mr Benjamin Lindner | Lethbridges Barristers & Solicitors |
HER HONOUR:
Introduction
Nathan Missen, you have pleaded guilty to the murder of your father Mark Missen.[1] The maximum penalty for murder is life imprisonment. On 19 and 20 November 2018 I heard submissions on your behalf, submissions on behalf of the Prosecution and received victim impact statements. Forensic assessments and personal references were tendered by your counsel.
[1]You entered your plea of guilty on 23 July 2018.
The offence took place at premises you occupied with your father and your then girlfriend, Ebonee Rohde, at 8 Larsen Street, Mooroopna on 29 January 2016.
You became involved in a verbal argument with your father which erupted into a violent altercation, leading to you physically assaulting him until he was dead. Your father was 56 years of age at the time of his death.
Following the murder, you took steps to conceal what you had done by wrapping the corpse in a tarpaulin and preparing to dispose of it.
Together with Rohde you approached Mark Matthews and Anthony Burford and obtained their agreement to help remove your father’s body from the house at Mooroopna and take it to a disused mineshaft to be disposed of. This plan was carried out on 2 February 2016 at the Balaclava mine near Rushworth. The corpse was discovered on 12 March 2016 by two men who happened to be exploring nearby.
Circumstances of the offence
You had moved into the rented premises at Larsen Street, Mooroopna with your father and Rohde only a few weeks prior to the murder. The move was intended as a fresh start for the three of you.
Your father was unable to work as a result of workplace injuries received in 2008 and 2009, which resulted in chronic back pain and depression. Prior to renting the Larsen Street house, he had been living in a car in the bush for a period and taking significant quantities of prescription medication in order to manage his activities of daily living.
Rohde’s background was chaotic and dysfunctional and was marked by drug abuse. She is the mother of nine children as a result of previous relationships but at the time she formed a relationship with you she did not have custody of any of her children. You and Rohde had been moving between several addresses and had been unable to maintain a stable home.
Your relationship with your father at the time of the murder was intensely troubled and you suffered from a range of deep-seated emotional and psychological problems and were prone to drug abuse.
Your adult life was unsettled. You had fathered a child with Renee Hawkins in 2013 but had lost contact with her when she complained to you that your father had approached her sexually. The reporting of these details is contained in contemporaneous medical records provided at the plea hearing. Despite these events, you reconnected with your father after forming a relationship with Rohde.
Your father became concerned when you went missing in early 2016. It was after he located you on 6 January 2016 that there was an attempt made by yourself, your father and Rohde to move into a house together on 13 January 2016. In this period of time your doctor was considering a trial of lithium to control your mood.[2]
[2]Dr Rachel McDonald, Shepparton Medical Centre Consultation notes 12 January 2016.
The combination of vulnerabilities suffered by each of you meant that the newly formed household was like a tinderbox and only 16 days passed before the eruption of serious and ultimately lethal violence.
On the evening of the murder you were out driving with Rohde, and having quarrelled with her, you assaulted her by punching her to the face and perpetrating further assaults upon her. She sent text messages to your father’s phone between 7.33 pm and 7.36 pm informing him of the assaults on her. I should interpolate here that you are not to be punished for the assault on Rohde, which is merely put forward by the Prosecution as relevant context.
Upon arrival home you and Rohde went straight into your bedroom to watch a movie. Soon afterward your father came in to see to whether Rohde was alright and inquired of you whether you had assaulted her. You followed your father out into the kitchen where a loud verbal argument developed. Through your counsel you have submitted that a key topic of the argument was your father’s decision to give away a car that you had worked on together.[3] Working on cars was one of the activities you enjoyed in peaceful moments with your father. You believed that your father gave away the car to spite you. I am prepared to accept that this topic may have been canvassed in the argument with your father although it is likely that you also argued about your treatment of Rohde.
[3]See also the psychological report of Jeffrey Cummins dated 14 November 2018 [152].
Rohde could not hear what was being said in the kitchen but, after the argument turned violent, she heard the noise of a person’s body displacing the refrigerator or freezer. Shortly after this, you dragged your father bodily into the bedroom and dropped him to the floor.
You have given an account to Associate Professor Andrew Carroll and to Jeffrey Cummins that your father participated in the initial violent confrontation. Whilst I am prepared to accept that your father may have done so, it appears that he was overborne by you and he was seriously injured by the time you dragged him to the bedroom. Rohde observed your father lying on his back, bleeding from the mouth, gasping and making noises as though trying to talk.
You said to Rohde, ‘It’s too late to get him some help, I’ve broken his jaw’.
You told Rohde to get something to stop the bleeding. When she complied and brought a pillow case and towel you wrapped them around your father's head and then kicked and stomped on him repeatedly whilst yelling at him to be quiet. The Prosecution alleges, based on the evidence of Rohde, that once your father stopped moving or making noises you placed a belt around his neck and pulled it tight. The Prosecution does not seek to prove that any actions with the belt contributed to death.[4] I will refer to this aspect later in my sentencing remarks.
[4]The fracture to the hyoid bone may have occurred post mortem.
There is evidence that at 7.44 pm Rohde called 000 asking for police in Mooroopna but the call could not be completed because you seized control of her phone.[5] It is not clear at exactly what stage of the events that call was attempted.
[5]Rohde later told police that you subsequently broke her mobile phone.
As I have already mentioned, having killed your father, you decided to take steps to cover up your crime by disposing of his body. You wrapped the corpse in a tarpaulin using tape and ropes and hid it in a wardrobe. Rohde was required to assist you in these endeavours. You then left the house and went in search of someone to help you transport the body away from the premises. You had no immediate success that night and returned home with Rohde.
The following morning you and Rohde left Larsen Street in your father’s Ford BA and approached Matthews for assistance.
Matthews lived in Echuca and was an old friend to yourself and Rohde. Burford was present visiting Matthews when you and Rohde arrived. You did not know Burford well.
Rohde said to Matthews, ‘We need a hand to get rid of Mark’s body’. You pointed to Rohde’s injured face pretending that you had killed your father in response to him assaulting Rohde saying that, ‘the old man went too far’. You then offered Matthews a motor vehicle, in return for help with disposal of the body. Matthews and Burford ultimately agreed to assist you, although Burford was not expecting any reward for his involvement. You left Rohde behind whilst embarking on this endeavour.
You took Matthews and Burford back to the Larsen Street premises and showed them the location of the body. Using gloves, you tied rope around the corpse and carried it to the boot of the Ford BA before driving with Matthews and Burford to the vicinity of Rushworth. A mine shaft was found near the Balaclava mine and the three of you carried the body from the boot of the car to the vicinity of the mine shaft. You removed the belt from around the neck of the deceased prior to enlisting Burford’s help in lifting the deceased’s body into the mineshaft.
You returned with Matthews and Burford to Mooroopna where you gave Matthews your father’s Nissan Skyline car in return for his help in disposing of the body.
In the period that followed, you and Rohde maintained the ruse that your father was still alive but had gone away somewhere. You continued to drive around in his Ford BA and Rohde began giving away and selling off items of your father’s property. On 21 February 2016, you and Rohde spent the night at your mother’s house in Morwell before returning to the Larsen Street premises. On 26 February 2016 notice was served by the rental agent to vacate the premises because of unpaid rent.
On 28 February 2016, Zoe Rutter observed you arguing with Rohde, whilst you were in Traralgon visiting her. Eventually you confessed to Rutter, ‘I’m a bad person, I’ve killed my dad and put him down a mineshaft. I feel bad because Ebonee was there and I made her watch me do it all.’ You later told her that you were only joking and that your father was in a rehabilitation facility.
On 3 March 2016, your aunt, Helen Brady raised concerns with police that Mark Missen could not be located. She had seen you and Rohde driving around in his car.
On 8 March 2016, while in Traralgon, you confessed to Peter Winter that you had killed your father.
On 12 March 2016 your father’s decomposing body was discovered in the mine shaft by campers who were exploring in the vicinity. The body was recovered by police on 13 March 2016 and an autopsy was performed on the following day.
Post mortem
Dr David Ranson assisted by Dr Soren Blau found evidence of head and neck injuries; including recent skull fractures to the facial skeletal structures, the mandible and the hyoid bone in the neck.[6] The head injuries were consistent with several applications of blunt force trauma and with both lateral and anterior/posterior force applied to the deceased’s jaw.[7]
[6]Depositions 187 [3].
[7]Ibid [4].
Decomposition of the body created an obstacle to the pathologist in giving a definitive cause of death.[8] It appeared that death had occurred many weeks earlier.
[8]Dr Ranson noted that forces to the head resulting in the fracture of facial bones and the mandible will be transmitted to the cranial contents and can be associated with intracranial injury and death. Damage to the hyoid bone may result from squeezing force applied to the neck.
The identity of the corpse was not able to be established until after 18 March 2016, when a missing person’s report was made by Cheryl Tyndall about her brother Mark Missen. Publication by police of items of clothing found with the body led to a notification that it could be Mark Missen. The identity of the corpse was confirmed by fingerprint evidence on 22 March 2016.
Police arrests
The following day, on 23 March 2016, police declared 8 Larsen Street, Mooroopna to be a crime scene. You were arrested with Rohde in Traralgon later that day. You were formally charged with murder and remanded in custody on 25 March 2016. Rohde was charged with a related offence, which I will mention further below.
On 30 March 2016, Matthews was arrested and he took part in a video re-enactment of the disposal of the body. He admitted taking possession of the Nissan Skyline vehicle as payment for his help. On 1 April 2016, Burford was arrested and also took part in a video re-enactment of his role in the disposal of the body.
A number of telephone calls between yourself and your aunt Helen Brady were monitored by police but you denied killing your father in those calls. You later gave her a self-serving narrative as to how your father was killed.
Nature and gravity of the offence
Murder is a grave offence as is manifest in the maximum available penalty fixed by Parliament. Whilst I accept that your father may have contributed to the outbreak of violence between the pair of you, a striking feature of your conduct is the flagrant violence you inflicted once you declared to Rohde that it was ‘too late’ to get help. Motivated by self-preservation, you decided to continue assaulting your father rather than summoning help at that time.
Victim impact statements
The Court received victim impact statements from Cheryl Tyndall, Dianne Berends, Lawrence Tyndall, Jacob Tyndall and Kerrie Mitchell. The statements of Cheryl Tyndall and Lawrence Tyndall were read aloud but I have carefully considered all of the statements filed, whether or not they were read aloud in open court.
Cheryl Tyndall, eldest sister of Mark Missen, stated that the loss of her brother Mark has been heartbreaking. Mark had an ongoing role in her life and that of her husband Laurie, including frequent visits to their family home in Shepparton. Lawrence Tyndall lost a brother-in-law and a mate who would give valuable advice while Laurie did manual and mechanical chores around the house. Lawrence feels his wife has been under a black cloud since learning of the murder. Both mourn the loss of an uncle to their four sons. One of their sons, Jacob Tyndall has said that he is at a loss to describe the repercussions of his uncle's death. He remembers a practical man who was generous with his time and know-how.
Dianne Berends, sister of Mark Missen, shared a close bond with Mark especially after their mother died. She misses her younger brother and feels that no one can ever replace him. She is deeply angry at the way he was killed.
Kerrie Mitchell, former wife of Mark Missen, was deeply shocked when she learned of your crime. Despite being divorced for some time she described feelings of profound sadness and grief.
Plea and sentence of each accused
I now turn to outline the disposition of charges against Matthews, Burford and Rohde. On 30 August 2016, Anthony Burford offered to plead guilty to the charge of assist offender,[9] relating to the death of Mark Missen and to testify for the Prosecution. He formally entered a plea of guilty to that charge before this Court on 3 October 2016 and then gave a sworn undertaking to assist in the prosecution of you and Rohde. He was sentenced on 14 December 2016 to a 16 month Community Correction Order as a result of his early plea of guilty, past assistance and promise of future cooperation, his youth and absence of prior convictions, his good prospects for rehabilitation and his lesser role in the offence.
[9]Crimes Act 1958 s 325(4)(b) in respect of the putative offence of manslaughter.
On 8 November 2016, Matthews pleaded guilty at a committal mention to assist offender.[10] He was arraigned on that charge before this Court on 2 December 2016 and undertook to give evidence for the Prosecution against you and Rohde at your trial. He was sentenced to 12 months' imprisonment with a minimum of three and a half months on 14 December 2016. He received a reduced sentence because of his past assistance and willingness to testify for the Prosecution. Matthews was ten years older than Burford, received a motor vehicle as reward for his role in the offending and had prior convictions. His prospects for rehabilitation were less favourable than those of Burford.
[10]Ibid; DPP v Matthews & Burford [2016] VSC 783.
On 29 May 2017, Rohde entered a plea of guilty in the Magistrates’ Court to the charge of assist offender in respect of the murder of Mark Missen.[11] She had provided a series of statements to police and a video re-enactment but the first few statements advanced a false version of events. Rohde’s fourth statement,[12] provided valuable information to police regarding the events surrounding the murder and the disposal of the body. Rohde’s subsequent conduct and circumstances led to delay in the finalisation of these proceedings. She was pregnant when arrested and was granted bail in April 2016. Plea negotiations were occurring on her behalf as long ago as October 2016. Her bail was forfeited due to breach of conditions and she changed solicitors more than once. She received further charges and there were delays in setting down the joint committal. After entering a plea to assist offender in the Magistrates’ Court, on 29 May 2017 she was later arraigned before Lasry J in this Court on 31 May 2017 and on 28 July 2017 a plea was made on her behalf and five further charges of breach of bail were taken into account. On that day, she gave a sworn undertaking to the Court to give evidence against you at a trial in accordance with her third and fourth statements.
[11]Crimes Act 1958 s 325(4)(a). It should be noted that proceedings against Rohde for assist offender in respect of a murder, related to her greater degree of knowledge of the circumstance in which Mark Missen was killed in contrast to the version of events provided to Matthews and Burford.
[12]Made on 28 March 2016.
Rohde was sentenced on 2 August 2017 to 197 days’ imprisonment, on the charge of assist offender (murder) but together with the breach of bail charges I imposed a total effective sentence of 211 days’ imprisonment, together with a Community Correction Order for 18 months.
You committed the offence of murder without any encouragement from Rohde and you then saw the need to involve her and others in covering up your crime. Rohde had already been assaulted by you at the time you killed your father. She had good reason to be fearful of opposing you. When you visited Matthews’ premises you gave a false account of Rohde’s facial injury and of how you came to kill your father before asking for help.
The nature of the charges and sentences passed on your co-offenders reflect these disparate factors, along with their willingness to testify against you at your trial.
Personal History
You were born on 5 October 1989 and are presently aged 29. You were 26 at the time of the murder. You experienced a fragmented childhood and adolescence. You had been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) at the age of 5. You attended primary school in the Latrobe Valley but your mother struggled to manage your behaviour in your early years. Your father separated from your mother Rosalind Smith-Missen in 1995 when you were aged 5.
You were sent to live with your father in 2000, when you were only 11 years of age. You left school at 14 to work as a labourer for your father. By that time your father had married his second wife, Kerrie Mitchell. Although you had some happy times with your father and stepmother, the family came under strain when you entered adolescence and the family relocated to Traralgon from Bairnsdale. In 2006, after leaving school and joining the workforce, you began to experiment with cannabis and methamphetamines. Your employment history has mainly centred on short term manual work. Your father ultimately separated from Kerrie Mitchell in 2012.
In summary, it seems that you did not have a stable upbringing despite your father’s endeavours as a parent. No doubt your father found your behaviour challenging at times but I accept that you suffered physical and emotional abuse during your childhood and adolescence having been abandoned by your mother to the care of your father.
In 2012, when you were aged in your early twenties, you entered a relationship with Renee Hawkins with whom you had a daughter. This relationship came under stress when your partner complained that your father was sexually molesting her. You had moved to Shepparton and sought psychiatric treatment in late 2013 and were prescribed anti-depressants in response to the family crisis.[13] A psychiatric report from that period records you as saying that, during the period of conflict surrounding Ms Hawkins allegations, you learned that your father attempted suicide and also obtained an intervention order against you. This meant that you could not discuss matters with him.
[13]See clinical report of Dr Chathanchirayll, psychiatrist dated 21 August 2013.
You obtained employment for six months with a meat-works factory and then with Rubicon Water for seven months and your relationship with your partner, Ms Hawkins, ended in 2014.
In 2015 you commenced a relationship with Rohde, who was some years older than you. Drug abuse seems to have been a feature of your relationship with Rohde.
In August 2015, you had reunited with your father and you and Rohde were living at 41 Skene Street, Shepparton with him. This situation became untenable and on 4 September 2015 your father applied for and obtained an intervention order against you from the Shepparton Magistrates’ Court.[14] You moved away with Rohde and your father left for Queensland but after a car accident he returned to Victoria at the end of October 2015.
[14]Police records show a number of family violence reports between the accused and the deceased between 2008-2015, including complaints by the deceased leading to intervention orders and complaints of breaches, as well as a complaint by the accused in 2011 that the deceased had assaulted him and threatened him with a firearm.
At the beginning of January 2016, you self-harmed and, as I previously mentioned, went missing for some days. Your father and Rohde went looking for you and reported you as a missing person to police on 4 January 2016, locating you on or around 6 January 2016.
Throughout January 2016 you attended a medical practice in Shepparton for mental health support. Your father was also seeking mental health support from the same practice over this period. As already mentioned, it was around this time that you and Rohde had moved into the Larsen Street property with your father.
What is apparent from this brief history of your life is that your relationship with your father was punctuated by many ups and downs over the years but despite the difficulties there was a close and co-dependent bond. You have said with hindsight that you felt that you could not live with your father, but you also could not live without him. Tragically, as a result of your own criminal actions you will now have to survive without your father’s love and support and must accept the consequences of intentionally taking a human life.
Psychiatric and psychological evidence and effect on moral culpability
You were assessed by Associate Professor Carroll on 7 November 2018 and he provided a forensic psychiatric report on 13 November 2018. Jeffrey Cummins also saw you on 18 October 2018 and conducted background inquiries by contacting your mother and aunt for additional information. He prepared a psychological report on 14 November 2018. Records were supplied to the authors of each report from Goulburn Valley Health and from Shepparton Medical Centre relating to the mental health history of you and your father leading up to the fatal conflict. Prison medical records were also made available regarding your time on remand.
Associate Professor Carroll considered that, at the time of the offending, you were suffering from the conditions of a Major Depressive Episode on a background of Recurrent Major Depressive Disorder-Moderate, chronic Post Traumatic Stress Disorder (‘PTSD’) and a Methamphetamine Use Disorder.[15]
[15]Psychiatric Report of Associate Professor Andrew Carroll dated 13 November 2018, 17-18.
These conditions were ‘mutually synergistic’, with each exacerbating the manifestation of the other and contributing to the episode of rage that erupted at the time you killed your father. It was considered likely that your primary psychiatric pathology was PTSD, which predisposed you to major depression and substance misuse. It was not possible to disentangle the relative contributions of each condition to the offending. It was noted that you had regular depressive episodes during your teenage years with a suicide attempt in your early twenties.
The occurrence of PTSD was attributed to major developmental neglect, abuse and trauma during your childhood and adolescence. Your early years were also marked by ADHD, learning difficulties and stuttering. You reported that your father inflicted repeated acts of physical violence on you as you grew up and there is some independent support for this information in the material before me. Associate Professor Carroll referred to the ambivalent and repeatedly conflictual relationship between you and your father within the dynamic of his and your own precarious mental health. You were found to have a weak sense of self and low self-confidence. He opined that there was no simple nexus between your psychiatric condition and the offending but rather a complex concatenation of circumstances and mental disorders, culminating in the episode of rage in which you attacked your father.[16]
[16]Depositions 19.
You told Associate Professor Carroll that you and your father were both ‘mentally unwell’ and constantly ‘at each other’s throat[s]’ in the months prior to the offence. It is significant to my acceptance of your impaired mental health, that in January 2016 you attended your General Practitioner three times and were referred to the local area mental health service because of unstable moods. Whilst there has been consideration to the possible diagnosis of Bipolar Disorder in various medical assessments of you, Associate Professor Carroll could find no convincing evidence to support this diagnosis. The content of medical records for January 2016 describe you as agitated and restless, reporting poor sleep and variable appetite with differing medications being trialled without much success. However, the notes for 6 January 2016 suggest that you underplayed the extent of your drug use in that consultation.
You have now been in custody for nearly three years and Associate Professor Carroll reports that your mental health is better than when you were at large, with appropriate medication being prescribed for unstable mood and abstinence from illicit drugs in a structured environment. Your Major Depressive Disorder is now in remission and your PTSD is less troublesome. However, you are at risk of institutionalisation in the long run. Associate Professor Carroll recommends a lengthy period of supervision after release.
Jeffrey Cummins also opines that your clinical history, recorded prior to the offence, revealed mood fluctuations within the context of a turbulent and complex father-son relationship. You were found at interview to be moderately-severely depressed and Mr Cummins described an enmeshed relationship with your father where you felt incomplete and guilty away from him but were often in conflict when with him.
Mr Cummins considered that prior to the offence you suffered a Major Depressive Disorder of at least moderate severity associated with anxious distress, and a trauma-based disorder that had been present since your teen years. This was described as an adjustment disorder with mixed disturbance of emotions and conduct. Mr Cummins also noted the contribution of frequent, often daily methamphetamine use.
He considered that your perception, judgment and reasoning ability would have been impaired by your poor mental health as well as the effects of drug use. Mr Cummins also warned that your mental health may deteriorate after sentence.
Because of the opinion of Associate Professor Carroll and Jeffrey Cummins and in combination with the information drawn from your pre-offence medical records, which were tendered at the plea hearing, the Court was urged to find that Verdins considerations had some application to mitigation of sentence. Specifically, Mr Lindner relied on limbs 1, 3 and 4 of Verdins.
In R v Verdins,[17] the Court of Appeal listed six ways that temporary or permanent impairment of mental functioning, was relevant to sentencing. Limbs 1, 3 and 4 express the following principles:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
...
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
[17](2007) 16 VR 269.
It was submitted that the Major Depressive Episode and PTSD affected your ability to make calm and rational choices and to think clearly when you succumbed to spontaneous rage and killed your father, creating a nexus between your impaired mental state and the offending. The effect of these conditions was such as to reduce your moral culpability so that general and specific deterrence should be sensibly moderated, and punishment and denunciation should have less weight.
However, Mr Lindner properly conceded that any contribution from the Methamphetamine Use Disorder could not avail you as a Verdins consideration or a factor in mitigation.
The Prosecution accepted that you are entitled to modest recognition of Verdins principles as a result of those psychiatric conditions that were not related to drug use. It was also submitted by the Prosecution that, whilst there was no evidence of methamphetamine use at the time of the offence, the influence of your Methamphetamine Use Disorder was given equal prominence by Associate Professor Carroll with your PTSD and Major Depressive Episode, detracting from the weight to be given to Verdins principles.
In my view, whilst it is not possible to disentangle the effects of your Methamphetamine Use Disorder from the effects of the Major Depressive Episode and PTSD at the time of the offence it is necessary to have regard to the likelihood that methamphetamine abuse adversely affected clinical efforts to treat your other psychiatric conditions in the lead up to the offence. Although you repeatedly attended for medical and psychiatric help between 2013 and 2016 your ongoing drug abuse appears to have been a countervailing factor. Associate Professor Carroll notes that when you saw a psychiatrist in this period you do not appear to have told him about your methamphetamine abuse. I conclude that you cannot rely on Verdins to the extent you could have but for your drug abuse.
Nevertheless, in line with the principles set out in Verdins’ limbs 1, 3 and 4, I am prepared to moderate the sentence I impose to some degree in recognition of the contribution of your Major Depressive Episode and PTSD to the offending. In addition to Verdins principles I also take into account that your disrupted childhood and adolescence and your enmeshed and conflictual relationship with your father did not leave you well equipped to deal with the vicissitudes of adult life.
Prior criminal history
Your previous criminal history is very limited. You were dealt with at the Shepparton Magistrates’ Court on 15 November 2013 for offending on 29 July 2013, including for contravention of a family violence safety notice, assault police and resist police. This incident involved you visiting your father and demanding your father get you some help by taking you to hospital.[18] Previous to that, you were placed on a bond without conviction at the Latrobe Valley Magistrates’ Court on 19 November 2012 for unlawful assault and earlier at the same court on 29 October 2010 you were fined for dangerous driving.
[18]Depositions 3034-6.
Delay and timing of the plea of guilty
Your entry of a guilty plea was late and you are not entitled to the same mitigation of sentence as if you had pleaded guilty at the earliest possible stage. However, you are still entitled to the utilitarian value of your decision to plead guilty to murder. The fact that your plea of guilty was not an early plea does not negate the relevance of delay in the finalisation of these proceedings for the purpose of sentencing you.[19]
[19]Hicks v The Queen [2016] VSCA 162, 6 [23].
A number of aspects of delay in the prosecution of you were due to factors beyond your control. One factor was that Rohde, who was a vital prosecution witness, changed representation more than once before finally giving an undertaking to cooperate with the Prosecution in mid-2017.
Also, you were diagnosed and treated for testicular cancer which meant that your trial could not proceed in Shepparton as planned. Once you formally entered your plea your legal representatives required an adjournment of the plea date in order to obtain clinical records from the Shepparton area and Corrections and in order to seek the assessments of Associate Professor Carroll and Mr Cummins.
As a result of these matters, it is now over three years since you committed the offence and you have spent the period since your arrest in March 2016 in a remand setting. I take into account that during that time on remand you have taken active steps towards rehabilitation. I also take into account in your favour that delay in finalising this proceeding has likely caused you added anxiety whilst awaiting the final outcome.[20]
[20]Ibid.
Response to imprisonment on remand
It is significant that this is your first term of imprisonment and that you appear to have used your time productively, enrolling in several programmes open to remand prisoners.[21] Further, you have held an important role as a peer educator within Port Phillip Prison, and received training in drug education.
[21]Exhibit L Certificate of Appreciation Peer Support (22 December 2016) including Kangan Certificate 2 in Warehousing, Certificate 1 in Textile Clothing and Footwear, ‘Cope Well’ Certificate of Completion (5 October 2017), ‘Coping Inside’ Certificate of Completion (13 October 2017), Certificate of Appreciation Peer Support Program (21 December 2017), Certificate of Completion Peer Educator (24 January 2018).
Your maternal aunt and uncle visit your regularly and remain in daily telephone contact. They have provided a positive description of their past and present relationship with you. They are farmers and recall your ready willingness to assist them when their farm was threatened by fire, as well as your assistance with other tasks over the years. They have offered you a home when you are ultimately released. Your mother has also visited you and provided a supportive reference, although you do not enjoy a close relationship with her, having reported longstanding feelings of early abandonment. It is very important to your future rehabilitation that you remain connected to your remaining family members and I note that you appreciate the support you have been getting.
Your time in custody has been made more difficult by a diagnosis of testicular cancer. This required surgery by way of an orchiectomy and chemotherapy. You have been told that you will need to remain at Port Phillip Prison to ensure adequate follow up since surgery. At present, you are in remission from cancer. This illness and the need for follow up has impacted on your circumstances and may limit your options for re-classification in the immediate future. I have taken these aspects of personal hardship into consideration.
Prospects for rehabilitation
Mr Lindner submitted that you have good prospects for rehabilitation based on the absence of significant criminal history and your expressions of remorse. Reference was made to your positive attitude to education and psychological treatment in and prison, your improving insight and the ongoing support of your aunt and uncle.[22]
[22]Plea Transcript 139.
I accept that your prospects for rehabilitation are reasonable, particularly if you remain on stabilising medication and avoid illicit drugs when you are released. A period of supervised release is likely to facilitate this approach.
Aggravating factors
I agree with Prosecution submissions that the objective gravity of your crime is aggravated by the way you continued to assault your father when he was already severely incapacitated. Whilst I cannot be satisfied beyond reasonable doubt that any actions with the belt contributed to death, I am satisfied that you intended your father’s death when you continued to assault him in the presence of Rohde after she brought you the pillow case and towel. The objective seriousness of the offending is increased by the nature of the physical violence you inflicted, together with your efforts to dispose of the body, involving others in that conduct. The concealment of the offence led to delay in relatives of your father learning of his death and added to the misery caused by your actions.
Regardless of the pressures you may have felt yourself to be under in late January 2016, you and you alone are responsible for killing your father in an episode of appalling brutality.
Mitigating factors and Remorse
Nevertheless, I also consider that the offending was not premeditated but arose in circumstances of sudden rage within the setting of a highly dysfunctional household, where each member of the household was mentally unstable.
Both Associate Professor Carroll and Jeffrey Cummins were persuaded that you are deeply remorseful and grief-stricken as a result of your crime. This also accords with testimonials provided by Dennis and Helen Brady and your mother Rosalind Smith-Missen.
I accept that you are contrite but note that frank remorse took second place to self-interest in the aftermath of the murder.
In summary, I am obliged to give weight to denunciation, just punishment and general and specific deterrence, whilst allowing a modest concession to Verdins principles. Specific deterrence is somewhat diminished as a factor given your limited criminal history and conduct on remand. Community protection will be achieved by the length of the sentence to be imposed and by allowing for a considerable period where you may be subject to supervised release. Rehabilitation remains an important goal of sentencing and I have taken account of the fact that you are still under thirty years of age.
I have also applied the principle of parsimony in s 5(3) of the Sentencing Act 1991 (‘Sentencing Act’).
Current sentencing practice
The parties referred to the small number of cases involving the murder of a parental figure.[23] None of the cases located are truly comparable to your case. Nonetheless, I have had regard to the broad range of sentences for murder and have also considered data published by the Sentencing Advisory Council,[24] and in the Victoria Sentencing Manual.[25]
[23]R v Wales VSC 115; Phillips v R [2012] VSCA 140; Lane [2003] VSC 180.
[24]Which show that between the years of 2011-2012 and 2015-2016 the median length of prison sentences was 20 years and the most common length of imprisonment was also 20 years. Further, between the years of 2012-2013 and 2015-2016 the average length of imprisonment was 19 years and 7 months and 22 years and 3 months respectively.
[25]In the murder case collection.
Previously, the Court of Appeal has referred to the limitations of drawing comparisons with other sentences for the same offence, emphasising it should only be done when the case ‘may be seen to fall broadly within the same category of seriousness as the subject offence, and where the circumstances of the offender are not dissimilar’.[26]
[26]DPP v Zhuang A Crim R 282, 294 [34].
A distinct feature of this case is that despite the history of conflict within your relationship with your father, you have accepted responsibility for murdering the person you had come to depend on most.
Conclusion
Nathan Missen for the murder of your father Mark Missen I sentence you to 21 years’ imprisonment with a minimum of 17 years.
I declare under s 6AAA that but for your plea of guilty I would have imposed a sentence of 24 years with a minimum period of 20 years.
I declare 1049 days, including today, as presentence detention already served pursuant to s 18 of the Sentencing Act 1991.
I will sign the disposal orders sought.
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