Director of Public Prosecutions v Murdoch

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0318 & S CR 2019 0005

DIRECTOR OF PUBLIC PROSECUTIONS

SCOTT ALAN MURDOCH

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2020
DATE OF SENTENCE:	7 May 2020
CASE MAY BE CITED AS:	DPP v Murdoch
MEDIUM NEUTRAL CITATION:	[2020] VSC 244

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CRIMINAL LAW – Sentencing – Murder – Intentionally cause serious injury – Both crimes involving attacks on women in their own homes separated by a period of three months – Coincidence evidence – Violent offending on parole – Late pleas of guilty – Limited evidence of remorse – Serious Violent Offender for both offences – Protection of the community – Life imprisonment – NPP 36 years – R v Williams [2007] VSC 131; Hudson v R [2010] VSCA 332; (2010) 30 VR 610; Phillips v R [2012] VSCA 140; (2012) 37 VR 594; Hunter v The Queen [2013] VSCA 385; (2013) 40 VR 660; R v Bayley [2013] VSC 313; R v Cardamone [2017] VSC 493; Cardamone v The Queen [2019] VSCA 190; DPP v Gargasoulas [2019] VSC 87; DPP v Herrmann [2019] VSC 694 – Sentencing Act 1991 (Vic) ss 5(1), 5(2), 5(2)(e), 6AAA, pt 2A, 6A(b), 6D, 6F, 11(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas QC Ms J Poole	Solicitor for Public Prosecutions
For the Accused	Mr J Shaw	Ann Valos Criminal Law

HER HONOUR:

Introduction

Scott Murdoch, on 8 August 2019, you pleaded guilty to Charge 1: causing serious injury intentionally to Ilona Prohaska on 21 May 2013, and Charge 2: murdering Kylie Louise Blackwood on 1 August 2013.

The charge of causing serious injury intentionally[1] carries a 20-year maximum penalty. The charge of murder[2] carries a maximum sentence of life imprisonment. These crimes, committed three months apart from one another, were committed whilst you were at large on parole for an earlier sentence imposed by this Court. I will discuss that matter later in these reasons.
[1]Pursuant to s 16 of the Crimes Act 1958 (Vic).
[2]Pursuant to s 3 of the Crimes Act 1958 and common law.

Intentionally Causing Serious Injury to Ilona Prohaska

I now turn to describe the facts on which Charge 1 is based. Mrs Prohaska, an elderly woman who lived on her own since the death of her husband, was attacked by you in her own home on 21 May 2013. She was aged 73 at the time of the incident. She suffered life-threatening injuries. The incident involving Mrs Prohaska unfolded in the following way.

On the afternoon of 21 May 2013, Mrs Prohaska returned home from a medical appointment at around 3.00pm. She resided in a three-storey house in Endeavour Hills. She parked her car, went inside, and lay down on her bed. Meanwhile, Mr Brook, a council employee working in the park opposite Mrs Prohaska’s house, noticed a man dressed in a high visibility jacket, baseball cap, and glasses walking back and forth through the park. Mrs Prohaska was expecting an insurance assessor to come to her house that afternoon. Therefore, when a man arrived at her front door and rang the doorbell, she assumed it was the insurance assessor. Instead, it was you, Scott Murdoch. You were holding a large knife when Mrs Prohaska opened the door, and when she tried to close the door on you, you kicked it open causing the door to strike her on the left side of her head. As she fell onto her back, you took the opportunity to enter her house. The Council employee heard a loud scream from somewhere nearby at around 3.15pm.

Mrs Prohaska had a medical condition for which she wore a MEPACS medical alarm around her neck. You removed the alarm from her and threw it into a nearby bedroom. You then knelt on her chest and placed a knife under her chin causing a small cut. You told her not to scream and said that if she did what you told her to do, you would not cut her throat. You then demanded cash and allowed her back onto her feet, walking with her into her bedroom to get her purse. She tried to give it to you, but instead you motioned for her to give you cash and a Commonwealth Bank debit card from her purse. You demanded the PIN for her debit card and Mrs Prohaska wrote it down on a piece of paper for you. You told her that if she had lied to you, you would return in two days and kill her, or that two people would come back and kill her.

You then directed Mrs Prohaska down some stairs that led to a basement games room. When Mrs Prohaska reached the bottom of the stairs, you turned to face her and suddenly placed the tip of the knife on the left side of her neck. You took a hammer from your jacket and struck the handle of the knife with it, forcing the tip of the knife blade into her neck. You then removed the knife and placed the tip of the knife on the right side of her neck and repeated the same action with the hammer and knife.

Mrs Prohaska lost consciousness and fell to the floor at the bottom of the stairs. You left her there gravely injured. You departed the house by the front door and went immediately to the Bendigo Bank ATM at 482 Lonsdale Street, Dandenong. You were captured on CCTV footage at 4.06pm operating the teller machine. You inserted Mrs Prohaska’s debit card and entered the PIN that she had given you. You made some failed attempts to withdraw larger amounts of money before making some account balance inquiries and then withdrawing $490 at 4.09pm. Another attempt to withdraw money was unsuccessful and you left the ATM shortly after 4.10pm.

You then went to see your parole officer in Dandenong at around 4.30pm. You had attended upon her earlier that day, before you attacked Mrs Prohaska, but she had sent you away and told you to come back for your appointment later.

Despite the severity of the attack on Mrs Prohaska, she regained consciousness and managed to crawl upstairs and locate her medical alarm. She activated the alarm at 3.30pm and ultimately was able to convey that she had been stabbed. Police and ambulance officers attended at once, and Mrs Prohaska was taken to Dandenong Hospital where she received surgery.

She sustained injuries to the left and right side of her neck and a laceration over her left eyebrow. The wound to the left side of the neck was deep and involved substantial blood loss. Mr Dayan Chandrasekara, one of the surgeons who operated on Mrs Prohaska, opined that the vascular injuries to her neck, if left untreated, would have resulted in catastrophic blood loss.

Dr Jason Schreiber, a Forensic Physician employed by the Victorian Institute of Forensic Medicine,[3] reviewed the medical records regarding Mrs Prohaska’s injuries and also opined that without treatment in hospital, it is likely that she would have deteriorated and died. The injuries were life-threatening and severe. He considered that significant force would have been required to inflict the injuries.
[3]Report dated 16 July 2018.

Mrs Prohaska was an inpatient at Dandenong Hospital from 21 May 2013 until 12 June 2013. The ongoing physical and psychological effects of her injuries continue to this day. It need hardly be said that the ordeal she endured was terrifying and she has shown great courage and fortitude in her efforts to recover.

When police examined Mrs Prohaska’s house, they found no signs of forced entry, but observed blood stains at the bottom of the stairs to the basement, in the hallway, and in the front room where she had been found by police. Her purse was located, but there were no credit cards or bank cards inside. The knife and hammer used in the attack were never recovered.

It was not until after you had been remanded in custody on the charge of murdering Mrs Blackwood, that police suspicions focused more fully on you as a suspect in the attack on Mrs Prohaska. Police noted similarities between the offences. In April 2018, your DNA reference sample was compared with a DNA sample obtained from the white knitted jumper worn by Mrs Prohaska when she was attacked. The analysis showed extremely strong support for the proposition that you contributed to the DNA profile found on the jumper.

On 13 June 2018, you were interviewed by police about the attack on Mrs Prohaska. You told police that you knew Mrs Prohaska, having attended secondary school with her son, and that you had been to her house when you were younger. You said that she would know you. However, Mrs Prohaska was unable to identify you from photographs shown to her. I deduce that you may well have visited her son at the house some years earlier, but if Mrs Prohaska had ever met you, she did not recall or recognise you at the time of the offending. This is hardly surprising given that your head was covered and you were wearing glasses at the time you attacked her. Also, Mrs Prohaska received a blow to her head and a bleeding injury over her left eye, before being stabbed in the neck.

Under questioning from police, you denied involvement in the attack and put forward an alibi that you were at the home of a former partner, Nicole T, at the time of the incident. However, Nicole T contradicted that account and said you visited her very briefly on the day in question but did not go inside her house. She also told police that during the relevant period, you always kept work clothes and tools in your car including a hi–vis jacket and a hammer.

On 1 July 2018, you were charged with a number of offences in relation to the attack on Mrs Prohaska. Subsequently you offered to plead guilty to the one charge of cause serious injury intentionally and the Crown accepted that offer. You later attempted to withdraw that plea.

Murder of Kylie Blackwood

I now turn to describing the facts on which the charge of murdering Kylie Blackwood is based.

The lead up to the murder of Mrs Blackwood produced several items of evidence linking you to that crime. Evidence obtained by the Crown showed that you had hired a white Nissan Tiida sedan on 30 July 2013, which was due for return at 1.30pm on 1 August 2013. The shape and appearance of the Nissan Tiida sedan was quite distinctive. CCTV obtained from premises and locations around the vicinity of Mrs Blackwood’s house showed a vehicle of that appearance coming and going from the area at the relevant time. Furthermore, your former partner, Nicole T, was sitting in her car outside the Masonic Centre in Koo Wee Rup on 31 July 2013 and saw you pull up next to her in a vehicle that she described as a white or pearl Nissan sedan. You tried to approach her, but she locked her car doors to avoid you. You returned to the car and drove off at speed. She described your clothes and appearance at that time, including a top that she recognised as belonging to her brother.

I will now describe what was done to Kylie Blackwood on 1 August 2013. Kylie Blackwood was a married woman and the mother of three children. She lived with her family at an address in McCaffery Rise, Pakenham. Peter and Kylie Blackwood had three children, a son, born in 2001, and twin daughters born in late 2002.

Mrs Blackwood worked part-time as a sales assistant at a fashion boutique. She completed her last shift on 31 July 2013. On that day, she took home some new jeans to try on, planning to take them back on her next shift if she did not like them.

On 1 August 2013, the Blackwood family prepared for school and work in accordance with their usual weekday routine. After her husband and children left home that morning, Mrs Blackwood engaged in Facebook and telephone communications with some of her friends. She planned to meet a friend later that day.

Peter Blackwood returned home at about 11.00am and noticed that Kylie was wearing the new jeans from the shop where she worked. He stayed for a short period, before returning to his work duties. Kylie Blackwood left the house shortly afterwards. She drove to a car wash in Pakenham, and then to a shopping centre in Officer, arriving there at 11.30am. She was captured on CCTV at the shops and at 12.16pm she drove east along Balmoral Road in the direction of her house.

Whilst Mrs Blackwood was away from home, a roof tiler, Mr Pratt, was working on the roof of a property that looked down on the Blackwood house. At around 11.42am, he saw a man walking up the street, who appeared to ‘case’ the outside of the Blackwood premises. He later gave police a good description of the man, including the man’s top which he described in markedly similar terms to the top that you were seen wearing the night before. The Crown case is that the person he saw was you.

Mrs Blackwood returned home sometime before 12.20pm and Mr Pratt saw her walk to the front of the house to check the bins before going inside. The Nissan Tiida sedan was captured on CCTV going back and forth in the vicinity between 12.23 and 12.31pm. Mrs Blackwood appears to have unpacked her groceries and gone into the study where she used a home computer. The evidence suggests that she was looking at a website at 12.50pm when she was disturbed by you. The computer chair was pushed backwards and a nearby picture frame was knocked over. A neighbour heard a scream coming from the vicinity of the Blackwood study. It appears likely that you attacked Mrs Blackwood near the couch in the lounge room, and that this occurred after she tried to flee from you once she became aware of your presence. Mrs Blackwood was stabbed to the head, neck, and upper chest, and there were signs of defensive injuries on her hands.

After attacking Mrs Blackwood, you left her house with her stolen Suncorp card and a small package.[4] Mr Pratt saw you walking out of McCaffery Rise about 20 minutes after he had last seen Mrs Blackwood. You went directly to the National Australia Bank ATM in Main Street Packenham, which was about 3km from the Blackwood home. At 1.05pm, you attempted to access Mrs Blackwood’s account using her Suncorp card and entered an incorrect PIN three times in rapid succession. You left the ATM but soon afterwards at 1.30pm, you went into the same branch and made a cash deposit of fifty dollars into your own bank account. You then left the area.
[4]Containing unknown contents.

Meanwhile, Mrs Blackwood’s twin daughters were waiting to be picked up by their mother from school. When she did not arrive, they were given a lift home by a neighbour. Once home, they found the front door locked and went through the garage into the house. Inside, they were confronted by the horrifying sight of their mother lying bleeding on the couch. A neighbour was summoned, and police and ambulance were called. When ambulance officers attended, they were unable to detect signs of life in Kylie Blackwood.

When police examined the crime scene, there were no signs of forced entry, making it likely that you entered the house through the garage. Further examination of the scene showed Mrs Blackwood’s leather purse in the kitchen, but it was found to contain only 45 cents. About $95 in cash and Mrs Blackwood’s Suncorp card were missing. The attack on Mrs Blackwood was largely confined to the couch area in the room where she was found. When she was killed, she was still wearing the new jeans that she was seen in that morning by her husband.

Post-mortem examination of Mrs Blackwood’s body found seven incised wounds to the head, five incised wounds to her neck, and five incised wounds to her chest, two of which penetrated the left pleural cavity. These last-mentioned injuries led to significant blood loss. There were also defensive type injuries to the left and right limbs. Forensic pathologist, Dr Kate Strachan,[5] opined that the degree of force used to inflict the stab wounds was moderate to severe, and the wound pattern was suggestive of a single-edged weapon. That weapon was never recovered.
[5]Report dated 12 April 2016, 20.

On 20 August 2013, police investigators were canvassing persons of interest in the investigation into the murder of Kylie Blackwood. Detective Howse visited you at your address at 6 Jennifer Court, Pakenham, and informally inquired about your movements on 1 August 2013. You told him that you had not been residing at your address and gave an account designed to imply that you had an alibi for the relevant period when Mrs Blackwood was murdered.

In September 2013, you were in hospital after a car accident, and a former partner, Sarah W[6], visited you. You told her you needed an alibi for the day Mrs Blackwood was attacked because police had questioned you. Sarah W refused to assist you.
[6]The mother of your children.

The homicide investigation into Mrs Blackwood’s murder was detailed and painstaking. It involved piecing together evidence of banking transactions, movements of the Nissan Tiida rental car, the identification evidence of Mr Pratt, and a range of other circumstantial evidence. Ultimately, you were arrested on 8 April 2016, and although you declined to comment about the murder, a DNA sample was taken from you and compared with DNA sampling from the new pair of jeans worn by Mrs Blackwood at the time of her death. That comparison showed extremely strong support for the proposition that you contributed to the DNA found on Mrs Blackwood’s jeans.

The murder of Kylie Blackwood was a crime that sent shockwaves through the community, especially amongst residents of the locality where she lived. Like the attack on Mrs Prohaska, the real motive for the attack on Mrs Blackwood remains obscure. As your counsel rightly conceded, it cannot have been wholly motivated by a desire to commit theft.

Prior Convictions

As indicated, you were on parole at the time of the offences against each victim. On 25 November 2009, you were sentenced by King J of this Court to seven years and two months imprisonment with a non-parole period of five years, for the offence of causing serious injury intentionally to Karen Cheeseman[7] and two counts of theft.[8] The offending in that instance occurred on 26 September 2006. Substantial pre-sentence detention had to be taken into account by her Honour when you were sentenced for those offences.
[7]Née Duker.
[8]The Queen v Scott Alan Murdoch [2009] VSC 636.

Ms Cheeseman, the victim of the 2006 offending, was 37 and you were 29 when you met her via a telephone introduction service. She drove to Pakenham in her car and you went with her back to her house. The pair of you socialised for a while before you got up and appeared to look into other parts of her house. You returned to Ms Cheeseman and made a sexual advance that was rejected. You then demanded she drive you home. When she refused and tried to phone triple zero, you seized her phone and grabbed her by the throat, squeezing her throat until she could not breathe properly. You stabbed her twice in the throat and once in her left cheek. You also struck her left temple with a heavy paperweight, causing a severe wound. You later disposed of the paperweight in a plastic bag. The knife you used was never located.

You stole Ms Cheeseman’s car, and drove away, having also stolen her mobile phone and purse. Ms Cheeseman regained consciousness and called triple zero. She was taken to hospital and was found to have a deep penetrating injury to each side of her neck, a laceration above the left eyebrow and upper ear, and marked swelling on her face. Fortunately, the penetrating injuries to the neck did not involve vital structures. However, she spent several weeks in hospital recovering from her injuries.

Ms Cheeseman suffered from some mild physical impairments before you attacked her, and afterwards suffered ongoing loss of function and serious impacts on her independence and enjoyment of life

The day after the attack on Ms Cheeseman, you were seen by your brother-in-law attempting to clean her car in the Safeway car park. You appeared to have blood on you. You gave various exculpatory versions about your actions to your brother-in-law and sister, and to police, implying that another person was involved. You went to some lengths to cover your tracks including faking a note to imply that you were being threatened by the real assailant. Ultimately, careful police investigation uncovered your link to the crime. The plastic bag containing the paper weight was found and DNA sampling of it made it likely that you had handled it. DNA consistent with your profile was also detected in the driver’s section of Ms Cheeseman’s car.

The narrative of these details shows that, in 2006, you cunningly tried to cover up a violent assault on a female victim. In a similar vein, you put forward a false alibi to police regarding the Prohaska incident, when interviewed about that matter. A similar attempt at concealment was made after you murdered Kylie Blackwood when you lied to police about your whereabouts and sought to have your former partner support a false alibi. On each occasion, it was only after detailed and thorough police investigation that you were identified as the offender.

At the time of being sentenced for the attack on Ms Cheeseman, you already had prior convictions. You had been fined in January 1998 for two counts of theft and one count of making a false report to police. Then, in 1999, you were dealt with by the County Court for a charge of causing injury recklessly leading to a partially suspended sentence of 20 months’ imprisonment.[9] You were 20 years old at the time of that offence which involved an assault on a young man at a party whom you believed had indecently assaulted your sister. The victim was drunk and punched you outside the party, and you responded by punching him repeatedly until he fell backwards and struck his head on concrete. You left him there without summoning help. He was later taken to hospital and admitted to intensive care with bleeding and swelling of the brain. He required extensive rehabilitation after the incident.
[9]The sentence imposed was 20 months, with 14 months suspended for two years.

Procedural History

It is now appropriate that I set out the procedural history leading to your pleas of guilty to the Prohaska matter and the Blackwood matter and events that precede my sentencing of you.

You were granted parole from the sentence imposed for the 2006 offending and released from custody on 1 October 2011. Your parole period was due to expire on 27 November 2013.

In August 2013, you were involved in a major car accident. On 4 October 2013, your parole was cancelled due to non–compliance with conditions and you were returned to custody to serve the remaining two years and two months of your sentence. A copy of the progress report issued by your parole officer was tendered before the Court,[10] and shows your lack of engagement with the parole conditions. Your sentence expired on 3 December 2015 and you were released. On 8 April 2016, you were interviewed and charged with the murder of Kylie Blackwood. You were remanded in custody on that date.
[10]Ex P-8.

A contested committal took place on 1 May 2017, but there were delays due in part to subpoenas served by your lawyers.[11] The committal finally took place in December 2017 [12]and, on 7 December 2017, you were sent for trial to this Court. Although an initial directions hearing took place in this Court soon after committal, it was in April 2018 that DNA testing confirmed a link between you and the offence against Mrs Prohaska. Whilst pre-trial argument was still being pursued in the Kylie Blackwood matter, police decided to interview you in relation to the Prohaska matter. This occurred on 1 July 2018 and you were then charged with that matter. Soon afterwards, the Crown foreshadowed that they would apply to have both trials joined, and would also seek to rely on tendency and coincidence evidence.
[11]Subpoenas were served on Victoria Police, in response to which police made claims of public interest immunity.
[12]Between 4 and 7 December 2017.

The Prohaska committal took place on 9 January 2019. On 22 January 2019, the Crown confirmed their intention to file over a joint indictment. On 11 February 2019, a trial indictment was filed over involving charges relating to both victims, and a lengthy coincidence notice was filed soon afterwards. There were further mentions, and on some of the days when the Court convened, the case could not proceed because of custody management concerns relating to you.[13]
[13]This precluded appearance in court or via video link.

Further pre-trial proceedings took place in early July 2019, and the Crown’s submissions on coincidence evidence were advanced on 16 July 2019. The trial was fixed for 29 July 2019.[14] On 31 July 2019, I ruled that the Crown should be permitted to rely on coincidence evidence and the joint trial of both matters was set to resume on 1 August 2019.[15] On 7 August 2019, just as a jury was about to be empanelled, your then counsel requested an adjournment indicating the need to visit you in custody to seek instructions about a matter of importance. This occurred and, on the following day, a plea offer was made on your behalf and accepted by the Crown.
[14]At which time, further argument about coincidence evidence and other pre-trial issues took place.
[15]Pre-trial argument on other disputed evidentiary issues continued on 1 and 5 August 2019, but on 6 August 2019, you were not brought to court because of custody management concerns regarding your welfare at the time.

On 8 August 2019, a plea indictment was filed over containing the charges that are now before me, and you were arraigned and pleaded guilty. The plea hearing was set down to be heard in September 2019. However, on 22 August 2019, you informed your lawyers that you wished to change your plea in relation to the Prohaska matter. Your trial counsel and solicitors then ceased to act for you. After further case management before this Court, Lasry J heard your change of plea application on 10 December 2019 and later refused leave for you to change your plea on the Prohaska matter. The plea in respect of both matters was then fixed for a date suitable to your new lawyers and to the prosecution.

In summary, you pleaded guilty to the current indictment on 8 August 2019, after evidentiary rulings and before the empanelment of a jury. No doubt, my ruling permitting the Crown to rely on coincidence evidence influenced your decision to plead guilty to both the Prohaska matter and the Blackwood matter. The circumstantial evidence in the Blackwood matter was overwhelming. With the addition of the coincidence evidence, there was a strong Crown case in the Prohaska matter. Lasry J was well-satisfied that you should be required to adhere to your plea in the Prohaska matter.

Although there has been delay in bringing these matters to their conclusion, that delay is procedurally explicable.[16] There was no suggestion that any lapse of time should mitigate your sentence.
[16]I note also that some of the delays were due to your non-appearance in court for medical reasons, as well as your attempt to change your guilty plea in the Prohaska matter.

Victim Impact Statements

I now wish to refer to the impact of your crimes. I have had regard to the impact of your crimes in arriving at your sentence. The Court received a victim impact statement from Illona Prohaska,[17]the primary victim in Charge 1. She is now 80 years old. Her husband and son are dead, and she only has her daughter remaining. She said that your attack on her ruined her life. She suffers constant physical pain and severe headaches since the attack. She feels that her balance and hearing have been damaged. She has trouble swallowing her food. She feels unsafe and afraid of the dark when she goes to bed at night, and is haunted by images of her attacker. Socially, she has been unable to do the things that she used to enjoy, such as attending church. She has become more isolated. This became worse after the death of her son. The attack on Mrs Prohaska was an appalling crime that left her feeling that she has nothing to live for anymore.
[17]Ex P-2.

Regarding the murder of Kylie Blackwood, there was an outpouring of grief and shock when those who knew and cared for her learned of her fate.

Peter Blackwood, Kylie’s husband, said that Kylie’s life was taken away without any reason or sense. After Kylie’s murder, he was an emotional and physical wreck, unable to eat for days, or drive a car for nearly a month. Dealing with the loss of Kylie was torturous as he had to deal with his own pain, as well as his children’s profound sadness. Peter Blackwood acknowledged the efforts of the Homicide Squad in bringing the case to a conclusion.

Mia Blackwood said that she lost a part of herself when she lost her mother. The trauma and grief will never leave her. The feeling of emptiness was indescribable. She said, ‘My mother never deserved this, neither should anyone else have to go through this pain.’ Not a day goes by when she does not think of her mother. Holly Blackwood said that she will never fully come to terms with what happened to her mother. The suffering and hurt destroyed her childhood, and continued into her teenage years, and early adulthood. She still has terrible nightmares, gets flashbacks of what happened, and has become a highly anxious person. She misses her mother and struggles every day without her. Chase Blackwood vividly remembers arriving home to find police tape around his house. All he wants is to have his mother back. He misses her smile, and the fact that he will never see her again has changed everything in his life. He feels broken and struggles with relationships and showing affection.

Allan and Edith Whitta, Kylie’s parents, said that Kylie was their only daughter and losing her has left a massive void in their lives. Seeing her children grow up without their mother leaves them feeling very sad. Alan Whitta said he misses the simple things like sharing a coffee with his daughter and doing odd jobs for her. Justin Whitta, Kylie’s brother, expressed his sadness at losing his only sibling and his deep sense of hurt at the way she was killed.

Kylie Blackwood was part of a tightly knit community. Apart from the Victim Impact Statements already mentioned, a great many others were received from her family and friends.[18] Those statements are testament to their feelings of grief and loss. Many of the authors spoke of family celebrations that were coloured with sadness because of Kylie’s untimely death. They spoke of how hard it was to put their feelings into words. I acknowledge their efforts and recognise that no sentence that I impose can dispel the pain and loss they will continue to endure as a result of what you did.
[18]Ex P-3. Victims not already referred to who submitted Victim Impact statements include Faye Cunningham, Sophie Spencer, Greg Blackwood, Michael Blackwood, Ronald Blackwood, Anne Cousins, Mary Coughlin, Sharon Blackwood, Nicole Healy, Michael Carroll, Paul Morgan, Tain Bartholomew, and Sandra Ferwenda.

A pervasive theme running through the victim impact statements was the sense of horror at what was done to Kylie Blackwood and Ilona Prohaska in the sanctuary of their own homes.

Your crimes have severely affected those who offered victim impact statements to the Court, but there will be many other people who will have been impacted by these crimes and feel less secure in their daily life, because of what you did.

Personal Background and Subjective Circumstances

I will now describe your personal circumstances. You are presently aged 42. You were born in Dandenong and grew up in Endeavour Hills. You have a younger sister aged 39. You were 35 years of age at the time of the offences before the Court.

Your father taught martial arts and your mother was a medical receptionist. They separated when you were a teenager. You were close to your father and upset when he died in 2006. Your childhood was unremarkable save for one exception. You have stated that you were a victim of childhood sexual abuse. This was a matter referred to in the sentencing of you by King J in 2009. You alleged that on two separate trips to Scotland, when you were aged 6 and then 10, you were sexually abused by your uncle and his friend on multiple occasions. After the second trip, you were diagnosed with bulimia and sent for outpatient counselling to Monash Medical Centre. You told your sister about the abuse in 2004.

You attended Dandenong High School and then Hallam High School before leaving to take up an apprenticeship. You left school in Year 11 to become an apprentice floor tiler. You then worked as a plasterer for some years. After you completed your first custodial sentence in your early 20s, you worked as a plasterer and formed a relationship with Sarah W. You and Sarah had two children who are now aged 17 and 18. You separated from her in 2006. You receive visits from your children, and a maternal aunt from time to time. You have some family support.

After you were paroled in 2011, your children lived with you for a while. You formed a new relationship with Nicole T and resided with her and your children as a family unit in Morwell and elsewhere.

You were working as a scaffolder between 2011 through to mid–2013 and were using amphetamines on and off. You were involved in a car accident in July 2013, and another more serious single-vehicle collision on 31 August 2013. You were airlifted to the Alfred Hospital with severe injuries. After two months in a rehabilitation facility, you were discharged, but soon afterwards, your parole was cancelled for non-compliance with conditions and you had to return to custody to serve out the rest of the 2009 sentence.

Regarding your medical and psychological background, you have been an insulin-dependent diabetic for most of your adult life and you are currently prescribed anti-depressants.

Mr Shaw placed contextual reliance on a diagnosis given to the Court as part of the custody management issue that arose during pre-trial hearings.[19] Dr Sam Pang, psychiatrist, told the Court that you were not experiencing any mental illness and had not experienced mental illness in the past, but that you had a borderline personality disorder.[20] He opined that there was nothing prohibiting you from attending your trial from the point of view of your mental health.
[19]See 6 August 2019.
[20]Transcript, 6 August 2019, 392. Dr Pang referred to a diagnosis made when you were an inpatient in St Paul’s psychosocial rehabilitation unit in mid-2018, and at an earlier time.

Mr Shaw conceded[21] that your borderline personality disorder did not give rise to mitigation of sentence by reference to Verdins principles[22] in light of DPP v O’Neill.[23] I note that there is no evidence before me for Charge 1 or Charge 2 which shows that your borderline personality disorder impaired your ability to exercise appropriate judgement, make calm and rational choices, think clearly, appreciate the wrongfulness of your conduct, or that it made you disinhibited or obscured your intent to commit the offences. Unlike the recent case of DPP v Herrmann,[24] no psychological or psychiatric evidence relating to the two offences was led on your plea hearing. The Court was bereft of any detailed information that might shed light on your mental state or motive in 2013 when you attacked each victim.
[21]Transcript, 4 March 2020, 155, 157.
[22]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269.
[23][2015] VSCA 325; (2015) 47 VR 395.
[24][2019] VSC 694.

In terms of the hardship you may experience whilst serving your sentence, Mr Shaw noted that you have self-harmed several times on remand and that you have been under a management regime from time to time. He also submitted that you are a protection prisoner and that you are likely to spend much or all of your sentence in relative isolation due to the nature of your crimes. Mr Shaw relied on these aspects of hardship in mitigation.[25] I accept that I should give modest weight to hardship of the kind mentioned by Mr Shaw, but the weight to be accorded is limited in the absence of more specific evidence about your custodial circumstances and management.
[25]Reliance was placed on R v Williams [2007] VSC 131, [115]–[123].

Timing of Pleas of Guilty

I am obliged to consider your pleas of guilty to the offences and the stage at which they were made.[26] You offered to plead guilty at a late stage, after pre-trial argument and adverse evidentiary rulings. There had been a contested committal in both matters, and pre-trial cross-examination of Mrs Prohaska. Nevertheless, the timing of your pleas avoided the need to summon a jury to court for your trial. I will discuss the significance of your pleas of guilty shortly.
[26]Sentencing Act 1991 (Vic) s 5(2)(e).

Nature and Gravity of the Offences

The prosecution submitted that the offending in each case was chilling in the manner in which it was perpetrated, noting that soon after each attack you went immediately to an ATM machine with the victims’ cards intent on withdrawing money from their accounts. The similarities between the Prohaska offending and the Blackwood offending were said to indicate a disturbing pattern of behaviour.[27]
[27]Coincidence evidence was to be led if the trial of both matters had proceeded, with the Crown relying on points of similarity between the two events: namely, that each matter involved women who were home alone during the day when attacked; that each victim was savagely and repeatedly stabbed in the neck before the offender left the scene; Mrs Prohaska suffered life-threatening injuries and Mrs Blackwood died from her injuries; the attacker was not known to them; there were no signs of forced entry to either premises; cash and/or bank cards were taken from each victim and used within a short period of time at ATM machines; the attacker in each event wore a hooded jumper, protective glasses, and a cap; the events occurred within three months of one another in the south-eastern suburbs of Melbourne (Pakenham and Endeavour Hills); you had a connection to each location (your mother lived in Endeavour Hills and you lived in Pakenham); and DNA evidence linked you to the clothing of each victim.

It was also submitted that the 2006 offending correlated with the 2013 offences in some important respects, despite not involving an initial trespass into the victim’s home.[28]
[28]Both of the 2013 offences, and the earlier 2006 offending, were committed when you were in the home of a female victim who was on her own at the time of the attack. In the 2006 offending, the mode of attack involved stabbing the victim in the neck, leaving her in an injured state and stealing from her, before later seeking to conceal the offending. The injuries inflicted were also similar to the 2013 offences.

The Crown referred to other aggravating features of the crimes before the Court, submitting that the Court should find that there was a degree of pre-planning before each offence because witnesses observed a person, who was likely to be you, loitering near each victim’s premises before the intrusion into their home. A knife was taken into Mrs Prohaska’s house. In respect of the Blackwood matter, the hire of a vehicle that was used to get to and from Mrs Blackwood’s house was suggestive of a degree of planning. I accept the submission that the offences involved a degree of pre-planning.

I must be satisfied beyond reasonable doubt of circumstances of aggravation.[29] I am satisfied to that standard that you selected the homes in advance of entering, and then went into those homes prepared to inflict serious violence on their occupants.
[29]R v Storey [1998] 1 VR 359.

The Crown also referred to the ferocity of each offence and the fact that the offending against Mrs Prohaska and Mrs Blackwood was committed whilst you were on parole for the 2006 offending, detracting from your prospects of rehabilitation and adding to the need for specific deterrence. I accept those submissions. Your attendance at the Corrections Office in Dandenong before and after attacking Mrs Prohaska shows a particularly brazen attitude. The fact that both victims were attacked whilst you were on parole shows that your previous time in custody was not effective in reforming you.[30] I accept that the objective gravity of each offence and your prior history mean that prominence must also be given to general deterrence, denunciation, and just punishment.[31] There are also special provisions of the Sentencing Act1991 (Vic) (‘Sentencing Act’ or ‘the Act’) that apply to you in respect of both offences because of your classification as a serious violent offender.[32]
[30]See eg, Nettle JA in Phillips v R [2012] VSCA 140; (2012) 37 VR 594, 602 [27] (‘Phillips’).
[31]See Sentencing Act 1991, s 5(1).
[32]Sentencing Act 1991, pt 2A.

Regarding subjective factors, the Crown submitted that whilst remorse is relevant pursuant to s 5(2C) of the Sentencing Act, there was little evidence of remorse before the Court, and that the Court should not give much weight to the expression of remorse offered through Mr Shaw for the murder of Kylie Blackwood.

Submission that the Court should impose life imprisonment without parole

Ultimately, the Crown submitted that despite your pleas of guilty, your crimes when viewed alongside your criminal history, warrant a sentence of life imprisonment. Phillips v R (‘Phillips’)[33] was relied on as confirming that the maximum sentence can be imposed in rare and exceptional cases[34] even when an offender pleads guilty. It was submitted that this is such a case.
[33][2012] VSCA 140; (2012) 37 VR 594.
[34]Phillips [2012] VSCA 140; (2012) 37 VR 594, 610 [55] (Redlich JA and Curtain AJA). See also, Hunter v The Queen [2013] VSCA 385; (2013) 40 VR 660, 663–4 [14] (Maxwell P and Coghlan JA) (‘Hunter’).

The Crown also argued that the Court should decline to fix a non-parole period.[35] It was pointed out that a disproportionate sentence could be imposed in order to achieve protection of the community.[36]
[35]Referring to s 11(1) of the Sentencing Act.
[36]Protection of the community being the principal purpose of sentencing a serious violent offender pursuant to s 6D(b) of the Sentencing Act.

Defence submissions that a non-parole period should be fixed

In response to the Crown submissions, Mr Shaw conceded the objective gravity of your crimes, and that your prior criminal history is bad. However, he urged the Court to fix a non-parole period in recognition of your pleas of guilty. Whilst it might be thought very likely that you would have been convicted by a jury of one or both offences, he submitted that the strength of the Crown case does not determine the utilitarian discount for a guilty plea. The length and complexity of the proposed trial was relevant to assessing the public benefit that results from a guilty plea. It is open to assume that if the trial had proceeded the Crown would have been put to the proof on all issues and required to call all necessary evidence.

Mr Shaw also informed the Court that you had recently expressed remorse in relation to the murder of Kylie Blackwood. Your statements of remorse were recounted by him in open court. Mr Shaw conceded that this expression of remorse was belated, and he was unable to point to any remorse in respect of the Prohaska matter.

In response to a submission from the Crown that there is nothing for the Court to act on regarding future risk, Mr Shaw submitted that if a non-parole period was fixed, it would be up to the Adult Parole Board to consider the level of risk posed by you, if, and when, any non-parole period expires.

Consideration of the parties’ submissions

In considering the parties’ submissions, it is readily apparent that crimes such as those before the Court, propagate understandable fear and outrage in the community. Each of the victims was caught off guard by your intrusion into their homes and had no chance of escaping your cowardly attack. After departing each crime, you took no interest in the fate of each victim. The home intrusion context is an aggravating feature of each offence.

The age and frailty of Mrs Prohaska aggravate that crime, along with the deliberate manner in which her injuries were inflicted, and the severity of her injuries. I regard the offence involving Mrs Prohaska as a particularly serious example of that offence.

The savage murder of Kylie Blackwood deprived her of the precious gift of life. The fact that life imprisonment can be imposed for the crime of murder, reflects the value that the law accords to the sanctity of human life. Whilst accepting that some features of aggravation present in other cases are not present in this case, I nevertheless regard the charge of murder as falling within the worst category for that offence.[37]
[37]See Veen v The Queen (No 2) [1988] HCA 14, [15]; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson and Toohey JJ), citing Ibbs v The Queen (1987) 163 CLR 447, 451–2.

You are not to be punished afresh for the offending against Ms Cheeseman, but the repetition of two further episodes of serious unprovoked violence committed whilst on parole shows why the community must be protected from you, quite apart from the strictures of the Sentencing Act.

Although you were initially an invited guest into the house of Ms Cheeseman in 2006, creating a point of distinction between the 2006 offending and 2013 offences, in other respects, your subsequent conduct towards Ms Cheeseman was eerily similar.

Ultimately, I am left in no doubt that the appropriate punishment for the murder of Kylie Blackwood is life imprisonment. I also consider that the offence against Mrs Prohaska requires a penalty in the upper end of the range for that offence.

The central question occupying my attention is whether a non-parole period should be fixed. I have already referred to several relevant sentencing purposes mentioned in s 5(1) of the Sentencing Act. One sentencing purpose that I have not yet referred to is rehabilitation. Justice King, when she sentenced you, considered that there were some favourable signs regarding your capacity for rehabilitation. Those matters proved to be insufficient to discourage further violent offending. The fact of your offending whilst on parole shows that you were unwilling or unable to engage in rehabilitation at the time you were released.

Although you still have some family support, and long-range predictions about rehabilitation are always difficult, your chances of being successfully rehabilitated whilst serving your sentence, appear poor.

Coming now to s 11(1) of the Sentencing Act, the Court is obliged to fix a non-parole period where life imprisonment is imposed,[38] ‘unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’. The meaning to be attributed to s 11(1) was discussed in Hunter v The Queen (‘Hunter’)[39] and will be referred to in more detail later.
[38]Or a sentence of more than two years.
[39][2013] VSCA 385; (2013) 40 VR 660.

Mr Shaw expressed concern that the Crown’s submissions on sentence may have infringed Barbaro v The Queen.[40] Lest there be any doubt on this point, I intend to give the Crown’s submissions no more importance than the High Court decreed should be given to such submissions.[41]
[40]Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (‘Barbaro’).
[41]That is to say, I will of course consider submissions on ‘the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases’, but any conclusions drawn upon that material are mine, and mine alone to make: Barbaro [2014] HCA 2; (2014) 253 CLR 58, 74 [39], [41], 76 [49] (French CJ, Hayne, Kiefel and Bell JJ).

I regard it as beyond doubt that life imprisonment is warranted for the murder of Kylie Blackwood, and I also regard the question of whether the nature of the offence and/or your past history is such that the Court should decline to fix a non-parole period as being squarely in contention for the offences before the Court.

Current Sentencing Practices

I have examined current sentencing practices for the crime of murder, including cases where a sentence of life imprisonment without a minimum term being fixed was considered or applied in this State.[42] I have also reviewed comparative cases involving very serious examples of the crime of causing serious injury intentionally.[43]
[42]Judicial College of Victoria, Victorian Sentencing Manual (4^th ed) pt E; Judicial College of Victoria, Victorian Sentencing Manual — Case Summaries, 1.1 Murder.
[43]SACStat Sentencing Advisory Council Statistics, Higher Courts, ‘Causing serious injury intentionally’, 1 July 2013–30 June 2018; Judicial College of Victoria, Victorian Sentencing Manual — Case Summaries, 4.2 Intentionally causing serious injury. When referring to current sentencing practice, it needs to be borne in mind that the definition of ‘serious injury’ changed for offences on or after 1 July 2013. The charged conduct would have met the later definition and the later sentences remain relevant. Upper end sentences before and after July 2013 range between 8 and 15 years.

Imprisonment for life without fixing a non-parole period has rightly been described as ‘a dreadful punishment’.[44] It is the most extreme sentence that can be imposed by a court. Sadly, it is a sentence that has been required in this State on certain exceptional occasions since fixed-term sentences began to be imposed in 1986. However, apart from those cases where the offender has already been convicted of murder in the past, or is facing sentence for more than one murder, such an outcome is exceptional where an offender pleads guilty. Cardamone v The Queen (‘Cardamone’)[45] is the only example in this State.[46]
[44]See eg, Cardamone v The Queen [2019] VSCA 190, [129]; R v Cardamone [2017] VSC 493, [90]; [93], quoting from R v Coulston [1997] 2 VR 446, 463 (Winneke P, Brooking JA and Southwell AJA).
[45][2019] VSCA 190.
[46]Cardamone established that, provided the requirements of s 11 of the Sentencing Act have been met, it may be appropriate to impose life imprisonment without fixing a non-parole period even though the offender has pleaded guilty and has only ever been found guilty of one murder. The sentence of life imprisonment with no minimum term was upheld by the Court of Appeal.

Close scrutiny of the facts in Cardamone shows why the offending, together with the past history of the offender, merited the sentence imposed in that case. In Cardamone, the offender was sentenced for murder, incitement to murder, and breach of parole.[47] Although he did not commit more than one murder, he had been convicted of a vicious rape and had other convictions for serious offending. More significantly, the offending for which he stood sentence involved extreme cruelty inflicted over a lengthy period.[48]
[47]R v Cardamone [2017] VSC 493.
[48]Ibid [27]–[28], [97]. The victim was burned alive as well as being driven over in a car. Justice Lasry described the offending as ‘thoroughly unprovoked, extraordinarily violent and horrifyingly callous with a variety of means being employed to create terror and suffering in the deceased woman before her extremely painful death’. His Honour noted that the victim must have spent hours whilst still conscious, expecting to be murdered.

The parties referred for comparative purposes to a small number of other cases where life imprisonment without parole was imposed by the sentencing judge following a guilty plea[49], although the offenders in those cases had committed murder more than once. R v Coombes[50] involved an offender who had been convicted of murder on two earlier occasions. Further, an aggravating feature of the offending was dismemberment of the body of the deceased to avoid detection. Although Coombes pleaded guilty, the objective gravity of the offence and his previous convictions for murder were such as to make life imprisonment without the prospect of parole appropriate in his case.
[49]Not disturbed on appeal.
[50][2011] VSC 407.

Hunter was referred to by the parties because it involved detailed consideration of the circumstances in which life imprisonment without fixing a non-parole period might be warranted. The relevant principles had earlier been considered in Coulston v The Queen,[51] R v Lowe,[52] and R v Beckett;[53] but Hunter, like Cardamone, involved a more recent consideration of s 11(1) of the Sentencing Act.
[51][1997] 2 VR 446.
[52][1997] 2 VR 465.
[53][1998] VSCA 148.

Hunter breached his parole by murdering a young woman, whilst already serving a sentence[54] for the murder of another young woman. He had other convictions and had contravened his parole in the past. Whilst on parole for the previous murder, he had committed the offences of kidnapping, false imprisonment, and intentionally causing injury.[55] When Bell J imposed life imprisonment without a minimum term, he took into account the offender’s earlier conviction for murder, as well as the nature of the attack and the manner in which the offender dealt with the body of the deceased. Although Hunter pleaded guilty, the objective gravity of the offence and his earlier conviction for murder informed the sentence imposed, and informed the subsequent reasoning of the majority judgment of the Court of Appeal.
[54]16 years’ imprisonment with a non-parole period of 13 years.
[55]Sentenced to six years and six months’ imprisonment, with a non-parole period of four years and six months.

Returning to your circumstances, the combined effect of your criminal history, particularly the offending in 2006, and your commission of the offences before the Court whilst on parole, make the question of whether a non-parole period should be fixed, a troubling one.

In Hunter, the Court of Appeal was divided about the outcome of the appeal against sentence by the offender, with Maxwell P and Coghlan JA dismissing the appeal and holding that the entry of a plea of guilty was a necessary condition for the fixing of a non-parole period given the gravity of the applicant’s case, but it was not a sufficient condition .[56]
[56]Hunter [2013] VSCA 385; (2013) 40 VR 660, 663–4 [14].

Priest JA, in dissent, observed that:

There is a public interest in giving recognition to a plea of guilty even in the face of a very strong prosecution case. Those faced with the prospect of either pleading guilty or electing to contest a trial need to know that a plea of guilty will find recognition in the sentence passed.[57]

[57]Ibid 692 [133].

His Honour remarked that the sentencing judge had recognised the following factors;[58]
[58]Ibid 691–2 [130].

·     the fact that ‘an offender has pleaded guilty, and did so early, is a sentencing consideration of singular importance’;
·     it ‘is beyond question that appropriate credit for pleading guilty, and doing so early, must be given in almost every case’;
·     a ’plea of guilty always carries with it both objective (or utilitarian) benefits in terms of the administration of justice and also usually indicates that the offender has experienced subjectively (that is, personally) an appropriate sense of remorse’;
·     a ‘plea of guilty saves the court and the community very considerable cost and expense, as well as the great distress of a contested criminal trial with all that it involves’;
·     a plea of guilty ‘helps to bring a sense of closure to victims’;
·     the ‘objective benefits of a guilty plea must almost always be taken into account, whether or not the offender also demonstrates subjective remorse and whatever be the apparent strength of the prosecution case’; and
·     there ‘is a profound public interest in encouraging offenders to plead guilty and taking such pleas fully into account when determining sentence’;

but it was his Honour’s opinion that the sentence of life imprisonment with no minimum did not adequately reflect these considerations, or the fact that remorse had been shown by the offender and the fact that the offender had put forward some information on how the deceased was killed.

Unlike Hunter, you did not enter your pleas of guilty at an early stage, but many of the factors mentioned above apply in your case. Of course, each of the cases I have mentioned ultimately turn on their own specific facts. It has frequently been said that: ‘Sentences are not precedents which must be applied unless they can be distinguished and the paramount duty of the Court is to do justice in individual cases.’[59]
[59]DPP v Adajian [1999] VSCA 105, [28] (Callaway JA). See also, [4] (Phillips CJ).

In considering the utilitarian benefit of your pleas of guilty, I accept Mr Shaw’s submission[60] that very serious offending involving more than one matter being heard together may entail great utilitarian benefit.[61] Previous authorities have observed that ‘the more serious the crimes, the greater the weight to be given to a plea of guilty’.[62] In most cases, recognition will be given even in spite of a strong prosecution case.
[60]Transcript, 4 March 2020, 118.
[61]In savings of public resources and respite from stress and trauma for participants in the trial process. The benefit to the administration of justice is significant. The proposed trial was expected to run for 6 to 8 weeks with over 100 witnesses to be called. The family of each victim and, in the case of Mrs Prohaska, the victim herself, witnesses, and potential jurors have avoided the public airing of your crimes over several weeks of trial.
[62]Hall v R (1994) 76 A Crim R 454, 469 (Crockett and Southwell JJ), as quoted in DPP v Nguyen [2010] VSCA 31, [28] (Ross AJA).

When you sought to change your plea in the Prohaska matter, you told the Court that you adhered to your plea of guilty regarding the murder of Kylie Blackwood. In sentencing you, I have given modest weight to your belated expression of remorse for the murder of Kylie Blackwood, made through Mr Shaw.

Although you are not to be punished for seeking to withdraw your plea in the Prohaska matter, your conduct in that regard underlines your absence of remorse for the harm you caused her.

Whilst the belated expression of words of remorse for the murder of Kylie Blackwood is not without significance, your capacity or willingness to change your behaviour remains highly questionable, given your past history.

Reference was made by Mr Shaw to R v Williams,[63] R v Bayley,[64] and R v Hudson[65] as cases where a head sentence of life imprisonment was imposed, but the mitigating effect of pleas of guilty found recognition in the fixing of a non–parole period. In the case of Williams, King J, when sentencing Williams for three murders, found no evidence of remorse, but imposed life imprisonment with a non-parole period of 35 years for utilitarian reasons.[66] If not for his guilty pleas, she would have declined to fix a minimum term. In Bayley, the offender’s past history and index offending were very bad. Nettle JA imposed a sentence of life imprisonment but elected to fix a non-parole period of 35 years.[67] In Hudson, the offender shot and seriously injured his female companion in a public location as well as shooting two innocent bystanders who had tried to intervene to protect her. One of the bystanders was killed and the other was seriously injured. Hudson had also committed an earlier serious assault on another victim. He pleaded guilty and a sentence of life imprisonment was imposed on the charge of murder and, after other sentences were imposed for the remaining charges, a non-parole period of 35 years was fixed.[68] The non-parole period was not disturbed on appeal.[69] In dismissing Hudson’s appeal where he argued that the non-parole period was manifestly excessive, the Court of Appeal recorded that thirty-five years was equal to the longest non-parole period yet fixed in Victoria, based on sentencing statistics prepared by the Sentencing Advisory Council at that time.[70] Of course, that was more than a decade ago, and since then there have been a number of occasions upon which very high non-parole periods have been imposed for very serious offending.[71]
[63][2007] VSC 131.
[64][2013] VSC 313.
[65][2008] VSC 389.
[66]King J observed that if pleas of guilty had not been entered, the Court could have been tied up for many years conducting the accused man’s trials.
[67]Bayley appealed the sentence, but the Court of Appeal dismissed his appeal.
[68]The sentence comprised five years’ imprisonment on one count of being a prohibited person using an unregistered firearm (count 1); eight years’ imprisonment on one count of intentionally causing serious injury (count 2); life imprisonment on one count of murder (count 3); twelve years’ imprisonment on each of two counts of attempted murder (counts 4 and 5).
[69]Hudson v R [2010] VSCA 332; (2010) 30 VR 610. Although the Court of Appeal confirmed the non-parole period set by the sentencing judge, it increased the sentences in respect of the two counts of attempted murder to 14 years’ and 6 months’ imprisonment (count 4) and 16 years’ imprisonment (count 5): at [75].
[70]Ibid 615–16 [22].
[71]Examples of which include Director of Public Prosecutions v Todd [2019] VSC 585 (guilty plea; 35 years NPP; murder and sexual offences); Director of Public Prosecutions v Gargasoulas [2019] VSC 87 (not guilty plea; 46 years NPP; multiple murders, reckless conduct); R v Price [2016] VSC 105 (guilty plea; 38 years NPP; murder, robbery, rape, attempted theft); R v Bayley [2013] VSC 313 (guilty plea; 35 years NPP; rape, murder).

Serious Violent Offender

Because of your earlier conviction for a serious violent offence, you must be sentenced on each charge as a ‘serious violent offender,’[72] in accordance with Part 2A of the Sentencing Act.[73] Section 6D of the Sentencing Act deals with factors relevant to sentence length.[74] The Crown referred to the power to impose a disproportionate sentence to protect the community and pointed out that pursuant to s 6E of the Act, the terms of imprisonment imposed for each offence must, unless otherwise directed by the court, be served cumulatively.[75] The fact that both offences occurred in breach of parole also enlivens s 16(1A)(d) of the Sentencing Act, displacing the presumption of concurrency.
[72]Part 2A of the Sentencing Act applies to serious offenders, with s 6A(b) applying to serious violent offenders, as defined under s 6B.
[73]Part 2A requires that an offender sentenced for murder who has previously been sentenced to imprisonment for a serious violent offence — which includes causing serious injury intentionally — must be sentenced as a ‘serious offender’.
[74]If under s 5, the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) 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.
[75]Sentencing Act 1991, s 6E.

I note that the principle of parsimony in s 5(3) of the Act also applies.[76] In your case, where protection of the community is to be regarded as the principal purpose of sentencing, and where deterrence, just punishment, and denunciation are also very significant goals, a severe sentence is required.
[76]Subject to (2G) and (2H) a Court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

Mrs Prohaska, was stripped of her capacity to enjoy life. You did that. Kylie Blackwood lost her life and her husband lost a loving wife. Her children lost a devoted mother. Her daughters are irrevocably scarred by the experience of finding their mother’s body. You did that. Your actions have left a path of devastation across many lives. Condign punishment in the form of a head sentence of life imprisonment is called for.

Decision to fix a non-parole period

I have carefully considered whether the application of s 11(1) should lead the Court to decline to fix a non-parole period.

The factors relevant to the selection of your head sentence also have a bearing on the selection of any non-parole term fixed by the Court, although the Court of Appeal in Hudson referred to the discrete considerations that apply to the determination of a non-parole period.[77]
[77]Hudson v R [2010] VSCA 332; (2010) 30 VR 610, 619 [37].

In your case, you will be commencing your sentence when you are already middle-aged. You suffer from diabetes and are encumbered by a borderline personality disorder that has led to self-harm in the past. You were also a victim of childhood sexual abuse. All of these factors form part of the person you are now and have been taken into consideration. I accept that you are currently a protection prisoner and that the nature of your crimes will impact on how you are managed in custody.

Having carefully considered the competing submissions on whether a non-parole period should be fixed, an important factor influencing my decision is the public interest in encouraging offenders charged with very grave crimes to accept responsibility in open court by pleading guilty.

It must be borne in mind that a sentence of life imprisonment can lead to the offender serving every day of that sentence even where a non-parole period has been fixed.

Weinberg JA observed in DPP v Gargasoulas:[78]

It has been said that only rarely will the nature of an offence be treated as sufficiently grave to warrant a refusal to fix a non-parole period. In particular, the fact that the crime for which a sentence is being imposed warrants the imposition of the maximum penalty does not preclude the fixing of a non-parole period. Indeed, the High Court has said that the more severe the maximum penalty, the more appropriate it is that a minimum term be set. That is to allow for the possibility, in such a case, of some mitigation of the punishment.

[78][2019] VSC 87, [159] (footnotes omitted).

When a court fixes a non-parole period, it is merely setting the minimum term that justice requires an offender to undergo before giving rise to eligibility for parole.[79] This does not equate with an entitlement to be released at that time.[80]
[79]R v VZ (1998) 7 VR 693.
[80]As Southwell J stated in R v Denyer, ‘[i[t must be steadily borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the non-parole period’: [1995] 1 VR 186, 196 (citation omitted), as quoted in Hunter v R [2013] VSCA 385; (2013) 40 VR 660, 689 [121] (Priest JA). Similarly, Crockett J outlined the consequences of being subject to a life sentence, stating in R v Bugmy that ‘[t]he punishment imposed has always been, and will remain, one of imprisonment for life. This means that he will always remain subject to detention. If paroled, and then guilty of a breach of that parole, he can always be reclaimed. … So to the day he dies he can be called upon to suffer incarceration’: (Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Fullager and Marks JJ, 21 June 1989) 2, as quoted in Hunter v R [2013] VSCA 385; (2013) 40 VR 660, 689 [122] (Priest JA).

I have ultimately decided to fix a non-parole period in your case, although the period I have selected is a very long way in the future. I would not have done so, but for your pleas of guilty to the charges along with the aforementioned considerations.[81] I have not found it necessary to impose a disproportionate sentence because I consider that the proposed sentence is proportionate to the offending. As it would be otiose to order accumulation on a sentence of life imprisonment, the sentences for each charge will be served concurrently.
[81]Despite also acknowledging the change of plea application in the Prohaska matter.

Mr Murdoch, please stand up.

On Charge 1, you are sentenced to ten years’ imprisonment.

On Charge 2, you are sentenced to life imprisonment.

Because I have sentenced you to life imprisonment on Charge 2, the sentence on Charge 1 will run concurrently with the sentence on Charge 2.

The total effective sentence is life imprisonment.

I fix a non-parole period of 36 years.

I declare I have sentenced you as a ‘serious violent offender’ pursuant to s 6F of the Sentencing Act on each of Charge 1 and Charge 2.

Presentence Detention

Pursuant to s 18 of the Act, I declare that, including today, you have served 1,491 days of pre-sentence detention, and I direct that the period already served be noted in the records of the Court.

Section 6AAA

Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have imposed a total effective sentence of life imprisonment and I would have declined to fix a non-parole period.

I will make the disposal orders sought.

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[2020] VSC 244

7 May 2020