Director of Public Prosecutions v Panagiotou
[2022] VSC 9
•21 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0291
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TONY PANAGIOTOU | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 December 2021 |
DATE OF SENTENCE: | 21 January 2022 |
CASE MAY BE CITED AS: | DPP v Panagiotou |
MEDIUM NEUTRAL CITATION: | [2022] VSC 9 |
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CRIMINAL LAW — Sentence — Manslaughter — Unlawful and dangerous act — Accidental discharge of shotgun — Offending occurred in context of a home invasion in company — Immediate remorse — Verdins principles applicable — Limited prior offending and otherwise of good character — Good prospects of rehabilitation — Onerous custodial conditions while on remand — Utilitarian value of plea during COVID-19 pandemic — Sentence of nine years’ imprisonment, with non-parole period of six years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Malcom Thomas with Mr Rahmin de Kretser | Stephen Andrianakis & Associates |
| For the Accused | Ms Melissa Mahady with Ms Ruth Champion | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Tony Panagiotou, you have pleaded guilty to one count of manslaughter arising from the shooting death of Duane Hutchings at the Oakleigh East property of Mr Hutchings’ friend on 9 February 2019. You were committed to stand trial in this Court on 18 December 2019 on charges of murder and aggravated home invasion. After a lengthy history of case management and pre-trial hearings in this Court, the matter resolved on 15 October 2021. On 19 October 2021, you were formally arraigned and pleaded guilty to one count of manslaughter.
On 21 December 2021 I heard the prosecution opening, received victim impact statements into evidence and heard submissions from your counsel and the prosecutor as to the sentence that should be imposed on you. The maximum penalty for manslaughter is now 25 years imprisonment but at the time of your offending the maximum penalty was 20 years imprisonment. It is now my responsibility to sentence you for this offence.
Circumstances of the offending
Your sons, George and John Panagiotou, ran a DJ equipment hire business called ‘Love it Loud’ with their friend, Jonathon Atalalis. On 6 February 2019, Calie Unwin hired equipment from the business that she planned to sell. She hired the items using false details and fake proof of payment, but used her real mobile phone number to effect the transaction. It was agreed between Ms Unwin and George Panagiotou that the equipment would be hired for a single day and arrangements were made for the items to be delivered to Ms Unwin’s associate, Mark Tremble.
On 7 February 2019, Ms Unwin sent a text message to George Panagiotou requesting a further night’s hire of the equipment, which was agreed to. The following day, Ms Unwin arranged for her friend, Paul Simpson, to contact Love it Loud to hire further equipment for a day. Mr Simpson contacted the company and organised for items to be delivered to Ms Unwin’s Oakleigh East unit located at [redacted].
At around 5.00pm that afternoon, you and one or two other males dropped the equipment at Ms Unwin’s address. Mr Simpson paid for the hire in cash. After you left, Ms Unwin photographed the equipment and placed an advertisement on ‘Gumtree’ offering to sell the items for $3,500. One of the contact numbers provided in the advertisement was the same phone number she had used to contact “Love it Loud” on 6 February 2019.
During the afternoon and into the night, you and your two sons George and John Panagiotou and their friend, Johnathan Atalalis, tried unsuccessfully to call Ms Unwin. Mr Atalalis sent two text messages requesting that Ms Unwin contact him about the first lot of hired equipment, making reference to the possibility he would report the matter to the police. Your son, John Panagiotou went to the Doncaster Police Station to report the theft of the first set of DJ equipment. The police declined to intervene in the matter, ostensibly because there was still a hire agreement in place. Notwithstanding that police had advised against attending the address provided by the hirer, approximately an hour later you sent a text message to John Panagiotou advising that you had tried knocking of some doors around the address provided, but that no one had heard of the person responsible for the hire.
Around this time, John Panagiotou accessed the Gumtree website and at 8:08pm, lodged a report with its administrators, stating that he had located his stolen equipment for sale on the site, and requesting that the advertisement be removed. John and George Panagiotou then exchanged text messages in relation to the second lot of equipment hired by Mr Simpson. At 10:36pm, John Panagiotou sent a text message to you stating, ‘[redacted]’. Further messages were exchanged between the two of you which included a link to the Gumtree advertisement for the second lot of equipment and a contact number that accompanied the ad.
At 11:27pm, George and John Panagiotou and Mr Atalalis attended the Doncaster Police Station and made a further report about the stolen equipment. They showed police the Gumtree advertisement but were again advised that nothing could be done about the items, as it was a ‘civil matter’. This was most unfortunate in view of what followed.
Over the course of the following day, you, your sons and Mr Atalalis exchanged calls and text messages discussing how you could retrieve the stolen equipment. Late in the evening on 8 February 2019, Mr Atalalis and John Panagiotou contacted two associates, Samuel Suratman and Marc Amad, to assist them. In their messages, Mr Atalalis and John Panagiotou made references to picking up the equipment.
Between 3:58 am and 5:11 am on 9 February 2019, Mr Atalalis and Ms Unwin exchanged several text messages about the advertised DJ equipment, with Mr Atalalis posing as an interest buyer. Ms Unwin provided her address so that Mr Atalalis could view the equipment. Around this time, a friend of Ms Unwin’s, Duane Hutchings, arrived at her house.
George and John Panagiotou then approached you at home and told you they were going to get the equipment. They told you that they were taking batons with them as it could get dangerous. You agreed to go with them.
At approximately 5:00 am, you, George and John Panagiotou, Mr Atalalis, Mr Suratman, Mr Amad, and three further associates, William Labas, Lachlan Spadafora, and Ameer Jarrar, all arrived at Ms Unwin’s unit in four separate vehicles. You were in possession of a loaded shotgun and your sons were armed with batons.
Mr Atalalis called Ms Unwin and informed her that he had arrived. She let him inside the unit as the others from Mr Atalalis’ group waited outside. Mr Atalalis looked at the equipment briefly then advised Ms Unwin that he had not brought the cash inside with him. He exited the unit and confirmed with those outside that the equipment was hired from Love it Loud. During this time, Ms Unwin remained in her home, talking with her friend, Mr Hutchings.
You, George and John Panagiotou, Mr Atalalis, Mr Amad, and Mr Jarrar then entered Ms Unwin’s unit together. You were in possession of the loaded shotgun at this time. You and other members of the group immediately began physically assaulting Mr Hutchings by punching and kicking him. Ms Unwin observed two people using metal bars to attack him. George Panagiotou approached Ms Unwin and raised a metal pole towards her, warning her not to move, and not to use her phone. At this time, you produced the shotgun and discharged one shot, impacting Mr Hutchings to the head and causing him to collapse. I shall return to the matter of whether or not you admitted to pointing the gun at Mr Hutchings, which is in contention.
You then fled from the unit, taking the shotgun with you. The remainder of your group remained behind and began dismantling the DJ equipment. Ms Unwin asked if she could call an ambulance for Mr Hutchings, but George Panagiotou yelled back at her, telling her to wait five minutes. The group then left with equipment.
Ms Unwin called ‘000’ at 5:24 am. Police and paramedics arrived soon after. Mr Hutchings was transported to the Alfred Hospital where he was pronounced dead at 6:35am.
You were arrested at your home on 10 February 2019. You participated in a record of interview, admitting that you were responsible for shooting Mr Hutchings, stating that you thought Mr Hutchings was reaching for a weapon during the fight with your co-offenders. You stated that in response, you removed the shotgun from under your jumper and aimed it low at Mr Hutchings, yelling ‘stop’. You told police that you did not intend to pull the trigger, but that the firearm ‘just went off’. You were charged the same day with murder and aggravated home invasion and remanded in custody, where you have remained.
Each of your five co-offenders were arrested and charged with aggravated home invasion, intentionally causing injury, recklessly causing injury, and unlawful assault.
Procedural history
You and your five co-accused were committed to stand trial on the charge of murder in this Court on 18 December 2019. After a post-committal directions and a further directions hearing, an indictment was filed with the Court on 5 June 2020 charging you with murder, aggravated home invasion, and home invasion, and each of your co-accused with aggravated home invasion, home invasion, intentionally causing injury, and recklessly causing injury.
By the date of the further directions hearing on 16 October 2020, the Court was advised that George Panagiotou’s matter had resolved to a guilty plea to charges of aggravated burglary and intentionally causing injury, and each of the co-accused advised that they consented to the transfer of their matters to the County Court of Victoria. On the same day, orders were made pursuant to s 167 of the Criminal Procedure Act 2009 (Vic) transferring their matters accordingly. Each of those matters, with the exception of the proceeding concerning Mr Atalalis, have now finalised. George and John Panagiotou were each convicted of aggravated burglary and intentionally causing injury on 11 March and 30 August 2021, respectively. Mr Amad and Mr Jarrar were each convicted of aggravated burglary and recklessly causing injury on 25 May and 23 June 2021, respectively. Mr Atalalis’ trial is listed for hearing in the County Court on 26 April 2022.
The charges against you remained before this Court due to the nature of them. On 22 April 2021, your matter came before me for the preparatory cross-examination of a prosecution witness pursuant to s 198B of the Criminal Procedure Act 2009 (Vic) and preliminary argument.
The trial in this matter was listed to commence on 13 September 2021, but was vacated due to the COVID-19 ‘lockdown’ in place at that time. In the intervening period, the matter resolved between the parties on 15 October 2021. As I earlier said, you were then arraigned before me on 19 October 2021 and entered a formal plea of guilty to manslaughter. The plea then proceeded on 21 December 2021.
Victim impact statements
Six victim impact statements were filed with the Court for the purposes of the plea hearing as follows:
(a) Christine Hutchings – mother of Mr Hutchings
(b) Angela Hutchings – aunt of Mr Hutchings
(c) Tina Hutchings – aunt of Mr Hutchings
(d) Edward Birch – friend of Mr Hutchings
(e) Nicole Hutchings – cousin of Mr Hutchings
(f) Sheleen Wilson – former partner of Mr Hutchings
These statements were read aloud in open Court at the plea hearing. Each of them express in detail the devastating impact that Mr Hutchings’ loss has had on those closest to him. I have taken these statements into account in determining the sentence that I shall impose on you.
Personal circumstances
You were born in 1962 and are now 59 years of age. Your parents migrated from Greece in the 1950s and started a clothing manufacturing business in Collingwood. They raised you and your younger brother in the Abbotsford area. You completed your secondary schooling up to year 11 at Abbotsford High School before undertaking one year of a diploma of financial planning at Deakin University. You met your wife in your mid-20s and the two of you went on to have four children, who are now aged between 16 and 25.
Having worked extensively in the hospitality industry, you established and ran a number of Melbourne nightclubs between 1996 and 2006. You later undertook work as a consultant assisting others to establish nightclubs, and also supported your sons with their business, Love it Loud.
You have a history of substance use. You report that prior to your arrest, you were in the habit of consuming up to half a bottle of spirits per day, and were regularly using cocaine. You were not, however, affected by either substance at the time of the offending in this matter.
You have a prior criminal history comprising a finding of guilt for intentionally causing injury in 1988 for which you were fined $1,500, and findings of guilt for affray, unlawful assault and recklessly causing injury in 2013, for which you received a six-month Community Corrections Order. No conviction was recorded for either matter.
Defence submissions
Mr Thomas of counsel, who appeared with Mr de Kretser on your behalf, made the following submissions in mitigation of sentence.
Objective gravity of the offending
It was submitted on your behalf that the offending occurred in the following circumstances:
(a) Between 6 and 8 February 2019, your sons were twice deceived by Ms Unwin, resulting in the loss of equipment from their DJ equipment hire business. At this time, you advised your sons to report the matter to the police;
(b) Your children twice attended the Doncaster Police Station but were incorrectly advised that the police were not able to assist as it was ‘a civil matter’. You were informed that the police would not assist in the recovery of the equipment;
(c) Your sons and their associates then made arrangements to personally recover the equipment. You were not involved in those discussions;
(d) You were awoken by your son, George Panagiotou, in the early hours of 9 February 2019 and were told that they were going to get the equipment. You made the decision to go with your sons out of concern that the situation could be dangerous. You concede that you knew that your sons were in possession of weapons and that it was possible that a violent altercation could occur;
(e) You concede that you took the shotgun and ammunition from your home and that you loaded the firearm and cocked it prior to entering Ms Unwin’s home, thereby increasing the potential for the shotgun to be discharged;
(f) You entered Ms Unwin’s premises after your co-offenders. While Mr Hutchings was being assaulted, you quickly produced the shotgun at which time it discharged.
At issue at the hearing of this plea was whether you admitted to pointing the shotgun at Mr Hutchings in your record of interview. The relevant part of the record of interview is as follows:
Q.When you did remove the firearm and point it at [Mr Hutchings], did you say anything to him?
A.Yeah, I said “Stop”
Your counsel submitted that you in effect answered the second part of the question regarding whether you said anything to Mr Hutchings, without accepting that you pointed the shotgun at Mr Hutchings as was put to you.
You concede that your actions in producing a loaded and cocked shotgun in close proximity to Mr Hutchings while your finger was on the trigger were unlawful and dangerous. You further concede that your conduct was conscious, voluntary and deliberate, and that the firearm discharged as a result of pressure that you placed on the trigger. However, you submit that the pressure you placed on the trigger was not carried out consciously, and that as such, the discharge was not deliberate. You deny any intention to injure Mr Hutchings. Your counsel characterised the offending as an ‘accidental discharge’ of the firearm, albeit in the context of you taking a series of deliberate steps which ultimately led to Mr Hutchings’ death.
You contend that your motivation in attending Ms Unwin’s house was a misguided desire to protect your sons. While acknowledging that the unlawful entry into her home in possession of a weapon is an aggravating feature of this case, your counsel submitted that your conduct cannot be described as vigilante behaviour, and that you should not be sentenced on such a basis.
Taking the foregoing factors into consideration, your counsel submitted that your conduct falls in the mid-range of seriousness for manslaughter offending.
Plea of guilty and remorse
It was submitted that you indicated your willingness to plead guilty to manslaughter at an early stage of the proceeding, and that this, together with your post-offence conduct, are genuine signs of your remorse.
Prior to being formally interviewed, you were covertly surveilled by police, and were recorded making multiple references to your feelings of guilt and your inability to make it up to Mr Hutchings’ family. Although you initially provided ‘no comment’ responses when interviewed by police on 10 February 2019, you went on to make full admissions to the offending and referred several times to your feelings of remorse. An extract from your record of interview was played at the plea hearing and your remorse was palpable. Despite having lied in your interview about the circumstances in which the firearm was disposed of, you subsequently arranged for it to be retrieved by the police.
Further, a Forensicare social worker noted that you were crying periodically throughout a consultation following your police interview, and that you reported suicidal ideation at that time. A number of testimonials provided to the Court for the purposes of the plea hearing attest to feelings of remorse and shame you expressed to your family and friends.
While you acknowledge that your offer to plead guilty was not made at the earliest possible opportunity, it was submitted on your behalf that you nevertheless indicated a willingness to plead guilty to the charge of manslaughter from June 2020 onwards. It was submitted that your guilty plea has saved the Court the significant time and resources of a lengthy trial, thereby demonstrating a willingness to facilitate the administration of justice,[1] and has also spared prosecution witnesses, particularly Ms Unwin, the difficult experience of giving evidence at trial.
[1]Cameron v The Queen (2002) 209 CLR 339, [11] (Gaudron, Gummow and Callinan JJ).
It was submitted that there is significant utilitarian value in your guilty plea, particularly in the context of the COVID-19 pandemic and resulting disruptions to the Court’s operations. In this setting, it was submitted on your behalf that your guilty plea ought to be afforded additional weight and should attract a more pronounced amelioration of sentence.[2]
Verdins considerations
[2]Worboyes v The Queen (2021) 96 MVR 344, [39] (Priest, Kaye and T Forrest JJA).
You were the victim of a home invasion yourself in 2004, at which time you were threatened at gunpoint. This incident was verified in a report of Ms Joanna Zhu dated 6 July 2009 that was obtained as part of Victims of Crime Assistance Tribunal proceedings.[3] After that experience, you reported hyper vigilant behaviours, severe anxiety, and intrusive memories and nightmares. Your mental health destabilised further when threats were directed towards your wife and your son was assaulted and subjected to persistent threats between 2018 and 2019. It was in this setting that you obtained the shotgun used in the offending. You did not seek the assistance of mental health professionals at that time.
[3]Report of Ms Joanna Zhu dated 6 July 2009.
You were assessed by clinical neuropsychologist, Mathew Staios, on 15 November and 6 December 2021. In a report dated 8 December 2021, Mr Staios writes that you display hypervigilant behaviours and severe anxiety as a result of violence and threats directed towards your son. Mr Staios opines that you present with an adjustment disorder of mixed depressed/anxious type, in conjunction with Post Traumatic Stress Disorder (‘PTSD’). With respect to your offending, Mr Staios writes:[4]
[8.2]While Mr Panagiotou’s history of poorly managed post-traumatic stress and anxiety are factors that should be taken into consideration, in my opinion they are not the sole cause relating to his current offending…Given Mr Panagiotou’s pre-existing self-reported hypervigilant behaviours and paranoia, it is my opinion that a combination of these factors, in addition to a pre-existing rigid thinking style likely impacted on his decision-making in the context of his current offending. In the lead up to his current offending, it would appear that he was fixated, paranoid, and preoccupied with potential threats relating to his family. In this instance, Mr Panagiotou’s capacity for consequential thinking was likely impacted as a result of a poorly managed anxiety disorder, limited emotion regulation, hypervigilance, and an ongoing need to protect his children.
[4]Report of Mr Mr Mathew Staios dated 8 December 2021, [8.2].
It was submitted that whilst the report of Ms Zhu does not amount to a PTSD diagnosis, it does evidence that you were the victim of an incident that had a significant impact on you. It was submitted that Mr Staios’ findings are that the home invasion in 2006 appears to have been the event that triggered symptoms of PTSD that were not adequately addressed.[5]
[5]Above n 4, [8.1].
It was submitted that in light of Mr Staios’ findings, the principles espoused in R v Verdins are enlivened and the Court can be satisfied on the balance of probabilities that your impaired mental functioning did contribute to the offending in such a way that renders you to some extent less blameworthy.[6] In particular, it was submitted that your moral culpability is reduced because the symptoms of your anxiety and PTSD made it more difficult for you to exercise sound judgement and make rational, calm choices at the time of the offending. It was contended that you brought the shotgun, loaded it and cocked it prior to entering Ms Unwin’s residence in the context of your hypervigilance and paranoid thinking.
[6](2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
Further, it was submitted that the application of the principle of general deterrence ought to be moderated given the longstanding nature of your PTSD and anxiety, and that the weight given to specific deterrence should attract similar moderation.
Prior good character
Fourteen character references were filed with the Court from your family members and friends. Those references attest to your ongoing dedication and commitment to your family, your strong work and business history, various contributions to the community through volunteering, and your role as a mentor to others through your business.
Prospects of rehabilitation
While acknowledging your past findings of guilt for violent offences, it was submitted that your criminal history is dated, with your previous dispositions recorded 33 and eight years ago, respectively, with a gap of 25 years between offending.
Notwithstanding these prior matters, it was submitted that you have excellent prospects of rehabilitation owing to:
(a) your successful completion of a Community Corrections Order in 2013;
(b) your good character, excellent employment history and commitment to your family;
(c) the ongoing support of your family;
(d) your genuine remorse and the fact that you took responsibility for the offending conduct from the outset; and
(e) your productive use of time on remand, including the completion of several TAFE courses and behavioural strategy programs, your employment as a unit billet and Caraniche peer educator, and your regular attendance at Buddhist meditation sessions.
It was submitted that the Court can give appropriate weight to what are said to be your positive prospects of rehabilitation by setting a comparatively lower non-parole period.
Current sentencing practices
Your counsel relied on three cases which are said to bear factual similarities to the present matter, namely, R v Howard,[7] Director of Public Prosecutions (Vic) v Osborn,[8] and R v Torun.[9] In those cases, sentences of eight and nine years’ imprisonment were imposed, with non-parole periods between five and six years. In refusing the Director’s appeal on sentence in the matter of Director of Public Prosecutions (Vic) v Torun, the Court of Appeal noted:[10]
[58]The judgments of this court in Phillips and Stratton emphasise that the issue of whether the discharge of the firearm was intentional is significant. Comparison of specific fact situations is not helpful, but, as was noted by this court in Stratton, there does not seem to be any case where a sentence over 10 years was imposed in a circumstance where it was found that there had been no intention to harm the victim…
[7][2014] VSC 194 (Macaulay J).
[8][2017] VSC 535 (Keogh J).
[9][2014] VSC 146 (Croucher J).
[10][2015] VSCA 15, [58] (Ashley, Whelan and Beach JJA).
Onerous conditions in custody
It was submitted that your time in custody has been rendered more onerous by reason of restrictions imposed in response to the COVID-19 pandemic, including mandatory quarantine periods, lockdowns, the suspension of personal visits and a reduction in access to rehabilitative and educational programs. These conditions have previously been described by this Court as bordering on the inhumane.[11] During your time on remand, you have been twice transferred to hospital for removal of polyps.
[11]Re Elias [2020] VSC 502, [38] (Priest JA).
It was submitted that your time in prison will continue to be onerous in circumstances where you continue to admonish yourself for the impact of your offending on your family and your inability to assist them financially and emotionally, particularly while your sons’ charges were before the court.
Parity
It was acknowledged on your behalf that none of your co-accused were charged with manslaughter or had knowledge of your possession of the shotgun prior to the shooting. The principle of parity has little role to play in this case.
Prosecution submissions
Ms Mahady, who with Ms Champion appeared for the prosecution, made the following submissions on behalf of the Director of Public Prosecutions.
Nature and gravity of the offending
The prosecution submitted that the offending is a serious example of manslaughter. The loading, cocking, presenting, placement of your finger on the trigger and firing of the shotgun were said to be a composite set of movements that, taken as a whole, were willed, despite the fact that you did not discharge the firearm deliberately.[12]
[12]Murray v The Queen (2002) 211 CLR 193; Ryan v R (1967) 121 CLR 205.
With regard to the issue of whether or not you pointed the firearm at Mr Hutchings, the prosecution submitted that you did admit to aiming the gun at Mr Hutchings in your record of interview when you demonstrated holding the firearm at chest height. The prosecution submitted that the allegation you pointed the shotgun at Mr Hutchings is supported by ballistics evidence demonstrating the upward angle of the shot.
The prosecution submitted that the offending was further aggravated by the fact that discharge of the shotgun was contemplated prior to entry into the home given the weapon was loaded and cocked prior to entry, that the offending occurred in the context of an aggravated burglary in the early hours of the morning, that you were in company with armed co-offenders, that you took the law into your own hands, that Mr Hutchings was shot whilst being physically assaulted by others and that Mr Hutchings was shot at very close range.
Moral culpability
It was submitted on behalf of the Director that your moral culpability is high. When you were woken up by your sons on 19 February 2019 and informed of their intention to confront Ms Unwin, instead of dissuading them from their plan you joined them and brought a firearm. You then voluntarily entered a confrontation with a loaded and cocked shotgun, understood the dangerousness of brandishing that weapon and must have understood that your actions would be terrifying for the occupants. After the offending occurred, you fled and failed to render Mr Hutchings any assistance.
Plea of guilty
The prosecution accepted the chronology as to the timing of your plea presented by your counsel, noting that your plea offer was made post-committal. It was accepted that your plea carries a significant utilitarian benefit given it was entered at a time when the Courts are grappling with the effect of the COVID-19 pandemic.
Remorse and rehabilitation
The prosecution accepted that you have demonstrated remorse and have good prospects of rehabilitation.
Verdins principles
In the written submissions filed with the Court, which were prepared without the benefit of Ms Zhu’s report, the prosecution did not concede that the principles in R v Verdins are enlivened on the basis that:
(a) Mr Staios’ opinions regarding your hypervigilant behaviours and paranoia are made on the basis of self-reporting;[13]
(b) Your self-reported mental health issues are but one factor to be taken into account. Your rigid thinking and borderline capacity for abstract thinking and problem solving also contributed to the offending;[14] and
(c) Your PTSD diagnosis is the result of events surrounding the current offending.[15]
[13]Above n 4, [8.2].
[14]Ibid.
[15]Ibid, [8.4].
The prosecution conceded at the plea hearing that, in light of Ms Zhu’s report, you had psychological issues develop due to the incident in 2006 which have apparently persisted and resulted in hypervigilance. The prosecution submitted that the weight that should be attributed to your mental health when assessing your moral culpability should be moderated, firstly, because your rigid thinking and limited capacity for abstract thinking also contributed to the offending and, secondly, because your hypervigilance should have resulted in you dissuading your sons from confronting Ms Unwin rather than acting as you did.
Analysis and conclusion
The offence of manslaughter as committed on 9 February 2019 carries a maximum penalty of 20 years’ imprisonment.[16] It is a category 2 offence pursuant to s 3 of the Sentencing Act 1991 (Vic). Section 5(2H) of the Sentencing Act 1991 (Vic) requires the Court to impose a custodial sentence for a category 2 offence unless any of the circumstances set out in ss 5(2H)(a)-(e) are applicable. It was not in contention that an immediate term of imprisonment is the appropriate sentence in this case.
[16]The maximum penalty for manslaughter was increased to 25 years from 1 July 2020, see Crimes Act 1958 (Vic), s 5.
In the present matter, the prosecution did not seek the imposition of a sentence for manslaughter in circumstances of gross violence pursuant to s 9B of the Sentencing Act 1991 (Vic).
This was a situation where, rather than going with them and supporting them, you should have attempted to dissuade your sons from going to the premises to regain the equipment. You should not have gone with them. You should not have taken a firearm with you and your certainly should not have loaded that firearm just before you entered the building. Your actions made the catastrophe which occurred inevitable. It is axiomatic that the loaded firearm you were holding was pointed at the deceased at some stage. You are, however, to be sentenced on the basis that the discharge was accidental and not intended by you. In my view not much turns on whether you intended to admit to the police that you pointed the firearm at the deceased.
Of course your conduct was serious – a person died as a result of your actions.
However, I accept the following propositions that were put on your behalf:
(a) You are remorseful for what occurred to a significant degree;
(b) Your plea of guilty reflects your remorse and your willingness to accept responsibility for what you have done;
(c) Your plea of guilty also carries significant utilitarian value given the present pandemic circumstances;
(d) Your mental health was affected by the incident which occurred in 2006 and had a negative effect on your decision making in the circumstances leading to this incident and reduces your moral culpability, though only to a small degree. You had several opportunities to reflect on what was happening and, regrettably, did not take them;
(e) Despite some now insignificant criminal history, you are a person of good character as the large number of testimonials attest. The effect of your actions and incarceration on your own family are substantial. I accept you are very conscious of those consequences;
(f) I am persuaded your prospects of rehabilitation are good. Surely this incident will underline to you the tragic stupidity of what you have done and that it is not to be repeated. You appear to accept and understand that;
(g) This is a very bad time to be in custody. The seemingly endless pandemic affects the vulnerable most dramatically and because prisoners are without freedom and autonomy, they are dependent on government for protection. That protection is usually rendered by further reducing liberties which may risk transmission of the virus. You are also suffering from these circumstances.
In all the circumstances, the appropriate sentence for me to impose on you is one nine years’ imprisonment. I direct that you serve a period of six years before you are eligible to apply for release on parole.
You have been remanded in custody since 10 February 2019 and have served 1,076 days’ of pre-sentence detention not including the date of this sentencing hearing. Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 1,076 days is reckoned as pre-sentence detention and direct that this be entered into the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), if you had conducted a trial and been found guilty of manslaughter by a jury then I would have imposed a sentence of 11 years imprisonment and fixed a period of 9 years before you would have become eligible to apply for release on parole.
Ancillary orders
I will make the disposal and forfeiture orders sought by the prosecution.
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