Director of Public Prosecutions v Stiler
[2024] VSC 314
•17 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WODONGA
CRIMINAL DIVISION
S ECR 2022 0270
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| BENJAMIN STILER | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Wodonga |
DATE OF HEARING: | 29 April 2024 |
DATE OF SENTENCE: | 17 June 2024 |
CASE MAY BE CITED AS: | DPP v Stiler |
MEDIUM NEUTRAL CITATION: | [2024] VSC 314 |
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CRIMINAL LAW – Sentence – Murder – Shooting of victim with a shotgun – Accused attended in his vehicle along street from house party to collect his cousin – Victim walked towards vehicle – Accused shot him once to the chest for no apparent reason – Immediately departed scene, and evaded police capture for some days – Question of whether any application of principles in Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’) and R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’) – Gravity of offending – Significance of offer to plead guilty to manslaughter – Whether evidence of remorse – Moderate reduction in moral culpability on basis of general principle in Bugmy – Limb 5 of Verdins enlivened – Serious offending with high moral culpability – Head sentence of 27 years’ imprisonment – Non-parole period of 21 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke KC with Mr Z Menon | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr L Gwynn with Mr D De Witt | McNally & Gleeson Lawyers |
HIS HONOUR:
Introduction
Benjamin Stiler, you have been found guilty by a jury following a trial of the murder of a young Indigenous man named Duwayne Johnson, whom you shot in the chest from close range using a sawn-off 12-gauge shotgun. Mr Johnson was only 26 years old at the time of his death. Your crime has deprived his four young children of their father, and his mother, his sister, and other family members and friends, of a much-loved son, brother, relative or friend.
You have also admitted the large number of prior convictions contained in the criminal record filed against you. Your possession of this particularly dangerous weapon and willingness to use it are in keeping with the poor character and lack of regard for the law indicated by your previous convictions.
The maximum penalty for murder is life imprisonment. Murder is a standard sentence offence with a standard sentence of 25 years’ imprisonment.
The murder of which you have been found guilty is a particularly senseless example of the always-serious crime of murder. In the context of picking up your cousin from a house party in Wodonga, after he expressed concerns to you about the behaviour of some people at the party, for some reason you attended outside the party in your vehicle in possession of the loaded shotgun. Upon seeing Mr Johnson walking towards the car, you alighted from the vehicle and shot him from a few metres away to the chest, causing him to collapse immediately to the ground and die shortly thereafter. Whilst you were later to claim, and maintained during your trial, that you acted in self-defence, that claim was speedily rejected by the jury, and I am satisfied beyond reasonable doubt that there was no truth to it at all. Your reason for shooting Mr Johnson is difficult to discern, but must have been founded in little more than anger, annoyance or machismo.
Having shot Mr Johnson, you got back into your car and immediately drove forward and straight over the top of him, breaking his femur. At trial, the Crown took the benevolent position of not relying on this as a deliberate action by you. Of course I do not rely upon it as such. The fact is, however, that your immediate flight from the scene was a clear indication of your complete lack of regard for the wellbeing of Mr Johnson, whom you left for dead on the roadway in your haste to avoid responsibility.
Those few words do not adequately convey the enormity of your conduct, which took the life of a young man with his whole future before him.
Lead-up events
Prior to your fateful actions, a house party attended by a small number of young people was held at 36 Woodland Street, Wodonga on the evening of Saturday 15 January 2022. One of those who attended was your cousin Braidan Stiler (‘Braidan’). During the evening, Braidan became concerned for his safety due to the violent and strange behaviour of some of those at the party. He communicated these concerns to you by telephone and text message, eventually asking you in a telephone call he made at 2.14am on 16 January to come and pick him up from the party. During the call, Braidan informed you that he had seen a person in possession of a knife in the kitchen at the party. In a text message sent at 2.30am, he told you that someone at the party had a ‘beef’ with you. He did not tell you who the person was, or what the beef was about.
Shortly afterwards, you left your home address in your silver Holden Commodore with two female acquaintances, Natalie Barton and Shonoah-Maree Byers, in your vehicle. You had offered them a lift home, but told them you would pick up your cousin on the way. You took with you in the vehicle the loaded sawn-off shotgun which was to become the murder weapon.
On your arrival at Woodland Street, you parked a short distance along the street from number 36 and remained in the vehicle, with your headlights illuminating the roadway in front of you. Your vehicle was out of view from the CCTV camera erected on the front of number 36. Your counsel Mr Gwynn, who appeared with Mr De Witt at trial, argued to the jury that this was a defensive position, inconsistent with your having any violent intention on your arrival in the area. I do not accept that there was anything defensive about the position in which you parked.
Braidan walked out of number 36 and approached your vehicle, probably on the driver’s side. He observed the shotgun in the area between the two front seats and asked you, ‘What the fuck are you doing with that?’. Your response was to ask him, ‘Which one of these cunts has beef with me?’. He told you it was all sorted. Ms Byers said that you told Braidan to go and get the person who had the beef. Braidan walked away from the vehicle.
At about the same time, Mr Johnson, who a little earlier had been visible on the CCTV footage urinating in the front yard, went inside the house. He apparently said to Jarrod Blanco (‘Blanco’), one of those present inside, ‘It’s on’. Mr Johnson then walked out of the front door followed by three other men, including Blanco.
The shooting
Mr Johnson walked out into the street and in the direction of your car, followed some distance behind by the others. Mr Johnson was wearing socks, rugby shorts and nothing else. He was unarmed. As he walked at normal walking pace towards your vehicle, he did not perform any intimidating or aggressive action. The pair of nail scissors he had tucked in the rear waistband of his shorts was never produced by him and clearly was not a factor in your subsequent conduct. Some evidence would suggest that Mr Johnson said at some point after leaving the house, ‘Who are these white cunts?’.[1] As he neared the car, Ms Barton, who knew him, told you, ‘That’s Duwayne’. You then, according to both of your passengers, got out of the vehicle. Evidence would suggest that you said, ‘Fuck you, cunt’.[2] Without any further ado, you shot Mr Johnson in the right side of the chest from a distance estimated by the firearms expert as being between three and four and a half metres.
[1]Transcript of Proceedings, DPP v Stiler (Supreme Court of Victoria sitting at Wodonga, Tinney J, 1 November 2023) (Evidence of Jarrod Blanco) 252 (‘Transcript 1 November 2023’).
[2]Ibid.
Mr Johnson collapsed immediately to the ground, as graphically shown on the CCTV footage. You got straight back into your vehicle and fled the scene, driving over Mr Johnson in the process. While you were driving away, Ms Barton said to you, ‘That was Duwayne, what have you done?’.[3] Shortly after this, you asked her, ‘Who the fuck was Duwayne?’, or something similar.[4] You drove your vehicle to Hume Weir, and before leaving Ms Byers and Ms Barton at that location with some money to get a taxi home, told them, ‘Don’t say nothing to anybody’.[5]
[3]Transcript of Proceedings, DPP v Stiler (Supreme Court of Victoria sitting at Wodonga, Tinney J, 2 November 2023) (Evidence of Natalie Barton) 353.
[4]Ibid 354.
[5]Transcript 1 November 2023 (n 1) (Evidence of Shonoah-Maree Byers) 331.
Your flight from the scene and avoidance of police
So began your persistent and protracted attempt to avoid responsibility for your crime, which was only brought to an end when you were arrested by police in Maribyrnong on 21 January 2022, some five days after the murder. In the course of that period, you stayed a night in Thurgoona before travelling to Chiltern, Beechworth, Holbrook and Adelaide. You evaded police in a high-speed pursuit. You placed false number plates on your vehicle before abandoning it, taking instead your mother’s car.
After your arrest, the disassembled sawn-off shotgun which you kept with you after your crime was found amongst your possessions.
The fate of Mr Johnson
Mr Johnson had died from his wounds by the time emergency services arrived. On autopsy, it was ascertained that the shotgun blast had entered the right chest, travelling front to back, right to left, and slightly downwards. No exit wounds were found, although it was possible to palpate some shotgun pellets through the skin of his back. The shot had caused damage to his lungs, heart and liver, resulting in blood loss into the chest cavity and abdomen. Death would have been rapid. Approximately 30 pellets were found inside the chest of Mr Johnson. The pathologist also found a fracture to the lower left femur and abrasions to the leg, which were consistent with your having run over Mr Johnson in your car after shooting him.
Ballistics evidence
The evidence of Leading Senior Constable Bamford from the Ballistics Unit indicated that the shotgun, a Nikko 12-gauge double barrel under and over shotgun, was in proper working order and could only be discharged by the pulling of the trigger. This evidence was led in some detail and the subject of some cross-examination by your counsel, consistent with the indication that had been given on your behalf during the trial that you would challenge the contention that you had deliberately fired the shot. That position was abandoned by your counsel later in the trial. Mr Bamford attested to the fact that test firing of the gun suggested a range of 3 to 4.5 metres from the muzzle to the point of impact on Mr Johnson.
Police interview
When interviewed by the police on 9 May 2022, you exercised your right to make no comment to the allegations put to you.
Your defence at the trial
Mr Gwynn went to the jury on the basis that you had acted in self-defence, anticipating an attack upon you by Mr Johnson in which you feared being killed or really seriously injured. It was challenged that you had deliberately shot Mr Johnson. It was also disputed that you intended to kill him or cause him really serious injury at the time you shot him. It might be observed that the very short length of time it took the jury to return their verdict of guilty was a fair reflection of the overwhelming strength of the prosecution case and the complete hopelessness of your defence.
Personal background
Much of the personal background which I will now summarise was set out in the reports of Mr Luke Armstrong, Consultant Psychologist, to which I will shortly turn.
You were born on 27 June 1996, and are now aged 27. At the time of your offending, you were 25 years old. You are the younger of two children born to your parents, and your brother Kaine is a year older than you. Kaine has a stable job and relationship, has no criminal convictions, and has no history of drug abuse.
You spent the first 11 years of your life living in Culcairn, a small town in country New South Wales (‘NSW’) . You were exposed to physical and verbal abuse within the family home, much of it directed at your mother by your father, and some directed towards you and your brother. You intervened on occasions to protect your mother and your brother from this violence, earning the wrath of your father. You were also exposed to your parents’ frequent drug use, and your father’s excessive alcohol consumption. You experienced general neglect.
Your education was also somewhat troubled, as you repeatedly displayed oppositional behaviour, sometimes necessitating your mother’s attendance at the school you attended. Your academic results were not good. You were, however, good at sport, and told Mr Armstrong that you were able to channel your agitation and anxiety at school into sporting success, earning state under-age selection for football. Outside school, you were involved in occasional petty offending.
Your parents separated when you were about 11. There had been earlier periods when your mother moved you away from your father. At one stage, you and your brother went with your mother to live with your aunt. You had only limited contact with your father from then onwards, although there was one brief period when you went to live with him again.
You were unable to complete your education in a mainstream environment due to your unpredictable and disruptive behaviour. You completed year 10 at a TAFE college.
You worked full-time from the age of 16, and report that you enjoyed the structure of full-time work. Little information was placed before the Court as to your employment history, other than that you have been employed as a labourer and in a mechanic’s workshop as a radiator mechanic. Since being in custody, you have worked in the kitchen and laundry, and as a peer educator.
You commenced your first intimate relationship at 16, and had a child with your then-partner Tia, at the age of 20. I understand that at the time of your offending, you were in another intimate relationship with a partner, Skye. You assumed the role of father to her daughter, who is now five years old.
When you were 17, you report that you were sexually assaulted by a male who was the foster carer of a friend of yours. You did not disclose this event, and as time went on, it had a very serious effect upon you.
This assault was the trigger for your commencement of drug use. You started using methylamphetamine (‘ice’) at the age of 17, and your use quickly escalated to daily consumption, including frequent use when you were driving a motor vehicle. After a time, you commenced to sell ice to finance your drug habit. You had some periods of abstinence, but ice use remained a significant part of your life at the time of the murder of Mr Johnson.
Character references
Seventeen character references were tendered on your behalf, from a wide variety of family members and friends. The authors speak in very glowing terms of you as a friendly, funny, gentle, kind-hearted, compassionate, considerate, well-mannered, hard-working person, who has the support of a close and loving family. Your attentiveness to your daughter and the daughter of your former girlfriend, Skye, feature prominently. Whilst many of the authors speak of your childhood trauma, they note your resilience in dealing with that, and the steps you were apparently taking at the time of your offending to better your life. A number of the authors speak of the remorse you have expressed for your crime.
Previous convictions
You have a long history of criminal convictions in Victoria and NSW from the age of 18, comprising in excess of 90 charges arising from 20 separate court appearances, mainly in courts of summary jurisdiction. Your offending has included driving, dishonesty, drug and bail offences. Significantly, you have accrued convictions for stalking on two separate occasions, the second of them resulting in a significant term of imprisonment. You have also been convicted of wielding or possessing a knife or prohibited weapon in public on five occasions. You have received a range of dispositions over the years, from fines and community-based orders to terms of imprisonment in recent years.
Mr Gwynn submitted that you have no convictions for violence or assaults, or the use of firearms, although I reiterate that you have numerous convictions for the use and possession of knives, about which I was provided no information, and two convictions for stalking, which were said to have involved intimate partners.
Whilst you have no convictions for violence, aside from the stalking offences, your criminal history is lengthy and significant, demonstrating, over many years, your lack of respect for the law, and your inability or unwillingness to comply with it.
Psychiatric material
Three reports from Luke Armstrong, Consultant Psychologist, dated 31 January 2023, 19 May 2023, and 26 March 2024 were tendered as Exhibit 3 during the plea hearing. At the time of the preparation of the first two reports, you were in custody on remand, having been charged with murder. The third report was prepared following your conviction by the jury. The indications are that Mr Armstrong reviewed you for the purpose of this report on 7 February 2024.
There is a good deal of repetition in the three reports.
On 7 June 2024, almost six weeks after the hearing of the plea, a further report from Mr Armstrong, dated 29 May 2024, was provided to the Court.
Mr Armstrong relied on an array of material in preparing his reports, including, by the time of the third report, lengthy face-to-face assessments of you for a period in excess of nine hours in total, the trial transcript, earlier psychological reports prepared by two other practitioners, and what was described as a personal history provided by your mother, the contents of which are unknown to the Court because the report was not tendered in evidence.
Mr Armstrong detailed your background, describing that you developed ‘within a highly disadvantaged environment characterised by poverty, drug abuse, domestic and familial violence’.[6] He considered your family environment to have been defined by verbal and physical abuse, and to be characterised by some neglect. Your feelings of responsibility for the safety of your brother and mother, and the interventions which you engaged in on their behalf, prevented you from developing the normal corrective relationships with teachers and other authority figures.
[6]Report of Mr Luke Armstrong dated 26 March 2024 (Exhibit 3 at the Plea Hearing) (‘Armstrong 26 March 2024 report’).
Mr Armstrong opined that your identity was very significantly retarded as a result of your exposure to child abuse. He said that you present with very significant features of a borderline personality disorder, and would have qualified for a diagnosis of stimulant use disorder as an adolescent. He stated that there were also overlapping features of post-traumatic stress disorder (‘PTSD’) present before the sexual assault which you reported to him, and that in the aftermath of that event, you would have fulfilled all the DSM-5[7] criteria for PTSD.
[7]Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.
Mr Armstrong carried out intelligence and psychometric testing of you. Of note is his conclusion that your results in the Wechsler Adult Intelligence Scale (‘WAIS-IV’) would place you within the borderline range of intellectual functioning, meaning that your overall thinking and reasoning abilities exceed those of only approximately seven per cent of individuals your age.
Mr Armstrong opined that your ‘experience of disadvantage, secondary to poverty, child abuse, including deprivation would sit at the very extreme end of the continuum’.[8] He then seemingly used that description as the basis for expressing certain conclusions about aspects of your expected behaviour and thinking.
[8]Armstrong 26 March 2024 report (n 6) 8.
Mr Armstrong’s report of 26 March 2024 contained a section entitled, ‘Circumstances of Alleged Offending: Summary’. The first paragraph of the section read:
The circumstances of alleged offending are for the court to decide. It is my view leading up to the offending Mr Stiler was already in a chronic, heightened, dysregulated state of hypervigilance and fear, secondary to his experience of PTSD, personality disorder and substance abuse. A further legacy that developed within this historical context was a distorted belief that others will destabilise him, this left Mr Stiler more prone to a malevolent outlook on the intentions of others. This also made him erratic and unpredictable, especially in domains relating to his interpersonal world; and the available controls over his emotion and behaviour. Overall, Mr Stiler’s mental state was therefore not stable, and had not been stable for many years leading up to the alleged offending now before the court.[9]
[9]Armstrong 26 March 2024 report (n 6) 9.
Immediately following this paragraph, Mr Armstrong referred to your intellectual functioning as a factor which may have reduced your resources to problem-solve yourself out of a situation.
What then followed was a reasonably detailed description of what Mr Armstrong had been told by you about the circumstances of your crime, apparently for the first time in the aftermath of your conviction. Because of the importance this account assumed during the plea hearing, I will set it out in full:
Mr Stiler reports marked psychological and physiological reactivity relating to a belief that his safety was imminently at risk in the moments before the firearm discharged. I would venture to suggest, on the basis of assumed facts that these beliefs, also amplified by entrenched personality disturbance and PTSD symptoms characterised your client’s thinking and emotional reactivity at the moment the weapon was discharged.
Mr Stiler denies attending the location of the offending to commit an offence with a firearm. Your client maintains that he had no desire to shoot the victim. Mr Stiler in fact, maintains having no prior association with the victim. Mr Stiler reports that his intention was to collect his cousin in view of concerns raised about his (cousin’s) safety in phone contact before the shooting.
Mr Stiler recalls that upon arrival at the location of the offence, his cousin appeared to be “dawdling … I felt sick”, specifically Mr Stiler reports that his cousin’s movements on arrival did not match his panicked pleas for help via phone, and text prior to your client’s arrival at the location of the alleged offending, and this had the effect of further, significantly unnerving your client around his own safety.
Mr Stiler reports that his cousin approached the driver’s door, and your client reports he exited the vehicle: “I gave him a hug and asked what’s going on … I thought you were in trouble. He said [cousin] it’s all sorted, but one of them said they had a problem with me. I started panicking”. Mr Stiler recalls his thinking at this time was one of: “what the fuck, I don’t even know who they are”. Mr Stiler recalls that his cousin indicated he would re-enter the house, and find out who they were, in reference to the alleged problem with your client.
Mr Stiler recalls that he began “freaking out … what have I done for someone to have a problem with me”. Mr Stiler reports that when he observed a group of men, led by the victim, rapidly approach him, “they weren’t running but they were coming quickly to me, they were not dawdling”. Mr Stiler maintains that it was his intention to leave the location, “it happened so quickly, I needed to get out of here”.
Mr Stiler maintains that the firearm was stored in the side pocket of the driver’s side door. He believes that when he first exited the vehicle, the gun must have dislodged from this location. When he opened the car door with the intention to flee the scene, Mr Stiler reported the gun had fallen out of the side pocket of the car, and hit the ground. Mr Stiler reports he picked up the firearm, with the muzzle unintentionally pointing in the direction of the group.
Mr Stiler was unable to describe his thinking or actions in the second before, and at the moment the firearm discharged. He accepts however that shortly after picking up the stock of the firearm with his right hand, followed by his left hand under the forend, forward of the breech, the firearm discharged. He accepts, that he must have pulled the trigger. Mr Stiler maintains the view that he did not have the intention to shoot the victim.
It is worth noting at this point, Mr Stiler, that many aspects of the account which you gave to Mr Armstrong were not the truth. I will return to this topic.
Mr Armstrong summarised aspects of your behaviour now in the custodial setting, as affected by your PTSD and other conditions. He noted your ongoing engagement with psychologists since your incarceration, and the need for continuing psychological and psychiatric care. He said that you have been developing insight into your mental health problems, and mentioned your demonstrated capacity to benefit from therapeutic engagement. He indicated that if you can remain drug-free and engaged in treatment, your mental conditions can be managed.
Mr Armstrong expressed the view that the prison environment is one which would exacerbate your PTSD and features of your personality disorder. Your experience of prison will present complexities for you which would not be experienced by someone without your conditions. You remain vulnerable, and this will continue to make incarceration more arduous for you than it would for a person in prison without your psychological profile.
In the same report of 26 March 2024, Mr Armstrong stated that an assessment of your psychiatric status would suggest that your condition remains relatively unchanged. I make the observation that this statement, and Mr Armstrong’s assertion contained in the previous paragraph about the likely effect of the prison environment upon your conditions, sits somewhat uncomfortably with the contents of the report of 19 May 2023, in which, having noted that since the time of his first report, you had had 25 consultations with a Forensicare psychologist, Mr Armstrong stated:
Mr Stiler reports that until 3 weeks ago he defined his mental health as relatively stable. Although such a view was relative to his own experience of prolonged mental health problems. I am off (sic) the view that both conditions of PTSD and BPD had stabilised, however he continued to experience symptoms, in a less severe form.
I pointed out this apparent discrepancy to Mr Gwynn during the plea hearing, and it was one of the matters dealt with in Mr Armstrong’s report of 29 May 2024. In the later report, Mr Armstrong confirmed his opinion that your mental state was ‘relatively poor’. He suggested that you have presented with a fluctuating mental state over time, the fluctuations being environmentally or contextually driven. Whilst you had reported a period of stability leading up to the review in March 2023, apparently when you learned that your trial was to be held in Wodonga, this triggered a deterioration in your condition.
Mr Armstrong opined that, looking ahead, your condition will likely fluctuate over time. In an ideal environment, one could be hopeful that your condition may improve over time. The prison environment, however, is not a corrective one, and PTSD ‘reactivation or intensification’ may occur if you are exposed to trauma such as violence towards you in custody.
Mr Armstrong described the treatment you are currently receiving as the ‘baseline or minimum’, and expressed the view that while you remain in prison, the treatment you receive ‘will never be adequate’.[10]
[10]Report of Luke Armstrong dated 29 May 2024, 2-3.
The remainder of Mr Armstrong’s final report focused on his characterisation of your background, as contained in paragraph 41 of this sentence. He repeated, expanded upon, and sought to justify that statement, based on his experience. He also touched upon the apparently differential effects upon you and your brother of the same imperfect background, opining that different outcomes for different people exposed to the same familial trauma is not particularly unusual.
Bugmy and Verdins considerations
There was some confusion during the plea hearing as to the applicability of the general principle in Bugmy v The Queen (‘Bugmy’)[11] in your case. Initially, Mr Gwynn did not argue that there should be considered to be any reduction in your moral culpability on account of the principles in that case, but rather, that your troubled background should simply be taken into account in a more general way. Later in the hearing, he changed that position, and submitted that your moral culpability for your offending should be considered to be reduced. That submission, it seemed, was largely based on Mr Armstrong’s view, set out in paragraph 41, above. Mr Gwynn likened your experience of deprivation to that of the applicant in Bugmy.[12] He submitted that your moral culpability is reduced, but made no submission as to the extent to which it should be reduced, although acknowledging that the degree of any reduction is a matter for the Court.[13] In later written submissions provided to the court on 13 June 2024, four days before sentence was due to be passed upon you, Mr Gwynn revisited the Bugmy issue. Referring to the authority of Newton v The King (‘Newton’),[14] he submitted that, in light of the evidence of Mr Armstrong, you are entitled to ‘some reduction’ in your moral culpability.[15]
[11](2013) 249 CLR 571 (‘Bugmy’) (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[12]Transcript of Proceedings, DPP v Stiler (Supreme Court of Victoria sitting at Wodonga, Tinney J, 29 April 2024) (Mr L Gwynn) 71 (‘Plea transcript’).
[13]Ibid.
[14][2023] VSCA 22 (Beach and Macaulay JJA) (‘Newton’).
[15]Defence Addendum Submissions for Plea Hearing, 13 June 2024, 3 [13].
Mr Bourke KC, who appeared with Mr Menon for the Crown, disputed during the plea hearing that there should be any reduction in moral culpability on account of the Bugmy considerations. This position was seemingly on the basis that in the expert report upon which reliance was placed by your counsel, Mr Armstrong said nothing to address the question whether your deprived background or PTSD had any real influence on your offending. Mr Bourke argued that the evidence of Mr Armstrong and from other sources, including the personal references and your criminal history, do not support the proposition that your childhood exposure to violence and deprivation was such as to become a feature of your makeup, as discussed in Bugmy, and therefore explain your resort to violence in the circumstances of this case. Mr Bourke did accept that your difficult background should be taken into account in mitigation in a general way.
The position of the Crown later changed, upon receipt by Mr Bourke of the later written submissions of Mr Gwynn, and the opportunity for further reflection. In the end, the prosecution did not take issue with the contention by your counsel that you are entitled to some reduction in moral culpability.
Mr Gwynn further relied upon the principles in R v Verdins & Ors (‘Verdins’),[16] arguing that the fifth and sixth of the limbs of Verdins are enlivened in your case. He did not submit that there should be any reduction in your moral culpability based on Verdins.
[16](2007) 16 VR 269 (Buchanan and Ashley JJA and Smith AJA) (‘Verdins’).
The prosecution accepted that limbs 5 and 6 of Verdins apply in your case, but submitted that the impact on sentence should be minimal.
Analysis of Bugmy and Verdins issues
In Bugmy, the High Court dealt with an appeal in respect of an offender, charged with serious violent offending committed in prison, who had been described by the sentencing judge as ‘an Aboriginal man who grew up in a violent, chaotic and dysfunctional environment’.[17] The Court expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. First, the Court observed:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[18]
[17]Bugmy (n 11) [17] (citations omitted).
[18]Ibid [40].
This was described by the Court of Appeal in DPP v Herrman (‘Herrman’)[19] as the ‘general approach’ in Bugmy.[20]
[19][2021] VSCA 160, see [36] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) (‘Herrman’).
[20]Bugmy (n 11) [41].
The Court in Bugmy also stated:
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[21]
[21]Ibid [44].
This was described by the Court in Herrman as the ‘specific approach’ in Bugmy.[22]
[22]Herrman (n 19) [41]
The Court in Herrman made it clear that whilst evidence to establish a nexus or realistic connection between the offending and the relevant background circumstances will be necessary before the specific approach in Bugmy will apply, the application of the general approach in Bugmy does not depend on the proof of a nexus.
In support of the proposition, conceded by the prosecution in the appeal, that the effects of childhood deprivation do not diminish with time, and are to be given full weight in the determination of the appropriate sentence in every case, the Court in Bugmy also stated:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.[23]
[23]Bugmy (n 11) [43]-[44].
In Sabbatucci v The Queen,[24] the Court noted:
It will always be a matter for evaluation by the sentencing court whether the circumstances of disadvantage relied on warrant the conclusion that the offender should be viewed, on that account, as less morally blameworthy than another person committing the same offence who did not have the same deprived background. Such a conclusion does not, of course, depend upon the court first being satisfied that the circumstances in question constitute ‘profound disadvantage’ or ‘profound deprivation’. It will be a question of fact and degree in every case.[25]
[24][2021] VSCA 340 (Maxwell P and Emerton JA) (‘Sabbatucci’).
[25]Sabbatucci (n 24) [22].
In Newton, the Court, in the course of finding that the sentencing judge had erred in not allowing some reduction in moral culpability to the appellant stated:
The fact that other offenders in other cases may have been subjected to more significant or more profound childhood deprivation does not mean that the appellant’s childhood deprivation should not have been properly considered as having the potential to reduce the appellant’s moral culpability in the general way described in Bugmy. On the uncontested material tendered on the plea, the appellant was entitled to some (albeit a modest) reduction in moral culpability without the need to establish any causal link between his childhood deprivation and his offending.[26]
[26]Newton (n 14) [45].
In some cases, depending on the circumstances, the reduction in moral culpability accorded to an offender may be significant. As was made clear in Newton, however, in some cases in which the general principle in Bugmy is enlivened, the moral culpability of the offender will be moderated in ‘a limited way’,[27] or ‘at least to some modest degree’.[28]
[27]Bui v The Queen [2015] VSCA 313 [44] (Redlich and Whelan JJA).
[28]Berry v The Queen [2019] VSCA 291 [30] (Maxwell P and Niall JJA).
As noted earlier, much reliance was placed by Mr Gwynn on Mr Armstrong’s opinion to the effect that your ‘experience of disadvantage, secondary to poverty, child abuse, including deprivation would sit at the very extreme end of the continuum’.
In my view, taking into account the entirety of the evidence, that opinion is difficult to accept. It does not sit comfortably with all that is known of your life, including the matters set out in the character references tendered on your behalf, from an array of family and friends who know you intimately. The picture from those references, including those prepared by your mother and others very close to you, is not of a person blighted for all time by a traumatic childhood, but rather, a person, who notwithstanding some challenges in childhood, has emerged as a well-rounded person, with normal interpersonal relationships, close family connections, a good work ethic, and many excellent qualities.
I must express some reservations about both the quality and content of the material upon which Mr Armstrong relied in forming his opinions, and the specific opinion upon which Mr Gwynn so strongly relied. First, there is no question that Mr Armstrong relied very heavily upon what he was told by you. Unfortunately, you showed yourself, in some of the things you told Mr Armstrong, to be a very unreliable, indeed, dishonest, historian. I will say more about this later.
Secondly, it seems that Mr Armstrong attached great significance to the information he received from your mother in something he described in his reports as ‘personal history provided by Nikki Johnson (Mr Stiler’s mother)’. This document was not provided to the Court, and in her reference which was tendered in evidence, your mother limited disclosure about the significant events of your childhood to the following:
Ben has struggled most of his life, starting from early childhood where I failed to bond with him due to having post-natal depression. I will not go into detail here of the causes of his childhood and adolescent trauma as I am sure you will be given those details in due course, but I have witnessed firsthand his ongoing battle with Attention Deficit Hyperactivity Disorder, Complex Post Traumatic Stress Disorder and substance abuse addiction. These challenges have plagued him for years.[29]
[29]Character Reference of Nicole Johnson dated 4 February 2021 (sic) (Exhibit 4 at the Plea Hearing).
In her sworn evidence and daily attendance during the trial, and through her written reference and the other character references tendered, your mother showed herself to be an attentive and caring mother. As far as I can tell from the material, it seems that she acknowledges that she was not always so, but you are not a person who lacked a supportive parent throughout your childhood.
Thirdly, there is an absence of any material before the Court throwing light on your educational history, including anything indicative of behavioural problems, or supportive of the conclusion Mr Armstrong reached as to your intellectual status.
Fourthly, no evidence was placed before the Court pointing to any diagnosed impairment of you in your childhood or adolescence.
As a result of these and other limitations in the evidence, I have some concerns about the quality and extent of the material upon which Mr Armstrong based his conclusions. As for the particular opinion set out in paragraph 41 above, on the face of the material available to the Court, it seems hard to justify.
Mr Gwynn likened your experience of childhood deprivation to that of Mr Bugmy himself. That was an ambitions submission. Whilst I acknowledge that, as made clear by the Court in Newton, it is not a matter of a judge comparing the circumstances in a particular case with those which were present in Bugmy, and then deciding, in a binary way, whether the Bugmy principles do, or do not, have application, the fact is that the proven history of your life, and specifically, the traumatic background to which you were exposed, is of nothing like the same order as that which was considered by the courts in Bugmy and Herrman, and, sadly, is commonly seen in this Court.
That is not to say, of course, that your difficult childhood should not be accorded proper consideration as having the potential to reduce your moral culpability for your crime.
In the end, taking account of all of the material before me, and bearing in mind the final position of the prosecution, I consider that you are entitled to a modest reduction in your moral culpability for your offending by virtue of your troubled past, consistent with the general principle in Bugmy.
In respect of the Verdins considerations, I accept that the fifth limb is enlivened in your case, leading to a modest reduction to the overall sentence. As for the sixth limb, I think the evidence fell short of establishing that that limb should be enlivened. That would only occur if I were satisfied on the evidence that there is a serious risk of imprisonment having a significant adverse effect on your mental health. In fact, there is no evidence that in the period of time you have spent in custody since your remand, a period in excess of 28 months, that there has been any adverse effect on your condition. To the contrary, whilst your condition does fluctuate, you are receiving regular and appropriate treatment, and have developed some insight into your conditions, and the importance of receiving treatment. I am not satisfied that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Nature and gravity of your offence
Whilst admitting that your offence was a very serious one, Mr Gwynn argued, for reasons upon which I will elaborate, that your crime should be assessed as being at the lower end of the spectrum for the crime of murder. He relied, centrally, on the absence of premeditation, and what he advanced as a separate consideration, namely, the short period of time over which I can be satisfied you harboured an intention to kill Mr Johnson or inflict really serious injury upon him, often called a murderous intent. He asserted that those matters dictated that this was an unusual murder.
He submitted that there is no evidence that you took the shotgun to Woodland Street intending to use it, or that you attended that location with murderous intent. However, when asked why you did take the weapon with you, he stated that he did not have any clear instructions on that point.
He submitted that you parked your vehicle next door to the house where the party was, and made no attempt to approach the scene, all conduct, he submitted, which was consistent with a defensive rather than an offensive stance, different from most other murders. Indeed, he went as far as to assert that ‘it can be a very defensive thing to do to have a sawn-off shotgun, in case you need it’.[30]
[30]Plea Transcript (n 12) (Mr L Gwynn) 28.
Mr Gwynn initially claimed that there is no evidence that you aimed the weapon, but he subsequently withdrew this submission when confronted with the fact that the jury verdict clearly means that the jury were satisfied that you deliberately shot Mr Johnson, which could hardly have occurred in the absence of aiming.
Mr Gwynn pointed to what he said was the absence of many of the common aggravating features present for murder, including the commission of the crime in a domestic setting; following a build up over a feud; conducted as part of a group against an outnumbered victim; as part of a sustained attack; in circumstances of a breach of trust; whilst being a prohibited person; against a vulnerable victim. Only one shot was fired, rather than multiple shots, he submitted.
The prosecution took issue with the contention that your crime should be seen as falling at the low end of the spectrum of seriousness for the crime of murder, submitting that yours was a serious crime falling in the middle range of seriousness. Albeit that the murderous intent was harboured for only a brief period, and your crime occupied a matter of seconds only, there was an absence of any explanation for your conduct in which you perpetrated deadly violence upon a complete stranger, for no apparent reason.
Mr Bourke also took issue with Mr Gwynn’s contention that you took a defensive approach that evening.
He submitted that the firing of a shotgun into the torso of a person from close range was a serious mechanism of murder. Your crime was made the more serious by factors including:
· the fact that you kept with you, within reach, a loaded, unregistered firearm which you had no reason to possess;
· the murder took place in a suburban street, surrounded by family homes. The fatal shot was fired while other people were in close proximity;
· you attended in the vicinity of the party with the firearm, and once you arrived, at the forefront of your mind was the idea that someone at the party had a beef with you. You showed a clear willingness to be involved in a confrontation;
· with no knowledge of what the beef was about, you shot the first person you saw coming from the party; and
· after the shooting, you immediately left the scene, showing no regard for the person you had just shot.
I do not accept Mr Gwynn’s contention that your offending should be assessed as being at the lower end of the spectrum. As a result of its combination of circumstances, your crime could only sensibly be assessed as falling comfortably in the middle range of seriousness, for whatever use such a classification can serve. Of course, what must be considered by a sentencing judge in arriving at an appropriate sentence is not which band a particular crime of murder falls within, but all of the features of the individual crime, and all of the aggravating and mitigating circumstances applicable to the offender.
In this case, a consideration of some of the features of this murder well-demonstrates that it is far from being a crime at the lower end of the spectrum.
I accept, of course, that you did not drive to Woodland Street that night intending to carry out a murder. However, it is of note that you attended at that location, late in the evening, equipped with a loaded, sawn-off shotgun. This is a lethal weapon, and you have provided no explanation for its possession, close at hand in your motor car. Mr Gwynn submitted that ‘it can be a very defensive thing to do to have a sawn-off shotgun, in case you need it’. I reject that unusual contention.
So too, do I reject Mr Gwynn’s assertion that your parking of the vehicle a short distance along the street from the party house was consistent with a defensive, rather than an offensive, stance.
As submitted by the prosecution, your conduct from your arrival in Woodland Street showed your willingness to be involved in a confrontation. What was said to you by your cousin clearly indicated to you that no action was required to deal with the situation of someone having expressed a beef with you. All you needed to do was remain in your car and drive away.
You did not do that. Rather, you alighted from your vehicle, armed with your shotgun, and with no knowledge of whom it was who had a beef with you, or what the beef was about, and then you shot the first person who walked towards your car.
This was an entirely senseless, brutal and unforgivable crime. You had no reason to fear Mr Johnson, and I am satisfied beyond reasonable doubt that fear had nothing whatsoever to do with your conduct. You simply shot Mr Johnson, from close range, in the torso, for no discernible reason, with a lethal weapon. Whether you simply lost your temper, or felt affronted that someone would have seen fit to walk towards your vehicle, I do not know. Unfortunately, you have never told the truth about what was in your mind at the time of firing the shot. But this much is clear. You aimed your shotgun, from very close range, at a man who presented no threat to your safety, and shot him with murderous intent.
The fact that you did not contemplate this action for very long, and that you possessed a murderous intent only for a few moments, does nothing to reduce the seriousness of your crime. Sometimes crimes of the most heinous nature can be contemplated and carried out in the blink of an eye.
Furthermore, the absence of the list of possible aggravating features present in some crimes but not in yours does nothing to define its seriousness. The seriousness of your murder of Mr Johnson is very amply demonstrated by the presence of its many aggravating features, not by the absence of some other features which might have served to make it even more serious and which are entirely irrelevant to the circumstances of your case.
Your moral culpability for your offending
As indicated earlier, I accept that the application of the general Bugmy principle serves to reduce your moral culpability for your crime to a modest degree. It was not argued by your counsel that any of the Verdins principles would operate to further reduce your moral culpability.
It was concluded by Mr Armstrong that your intellectual capacity falls within the bottom seven per cent of people of your age. For what it is worth, because nothing is said to turn on it, Mr Armstrong’s conclusion, based on the administration of a single measure, the WAIS-IV, at a time when you were in custody, and in the complete absence of any other material, seems questionable to me. Your mother, for example, described you as ‘intelligent’ in her reference.
However, as I said, nothing turns on this. It was not asserted on your behalf that your level of intelligence or anything else would have impaired your ability to fully understand precisely what you were doing, and what the consequences would be, when you shot Duwayne Johnson in the chest with a shotgun from close range.
I am satisfied, bearing in mind all of your personal circumstances and the circumstances of your offending, that your moral culpability for your crime remains high, even allowing for the Bugmy reduction.
Plea offer and the question of remorse
Mr Gwynn relied on your offer to plead guilty to manslaughter on 11 August 2023, prior to the case conference, as being a ‘genuine’ offer, one of the purposes of which was to spare the family of Mr Johnson the ordeal of a trial. Your offer to plead guilty, it was submitted, reflected an acceptance of some responsibility for your crime, albeit for a lesser charge. The offer was made during the period when the Worboyes discount was still applicable.[31] Mr Gwynn submitted that your offer to plead guilty to manslaughter remains relevant to an assessment of your prospects of rehabilitation, and to the question of remorse.
[31]Worboyes v The Queen [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); see DPP v Lindemann [2024] VSC 220 at footnote [5], in which Hollingworth J correctly opines that ‘[u]nfortunately, too many practitioners are still seeking Worboyes discounts as a matter of course, without any proper evidentiary basis for doing so’; see also O’Neal v The King [2024] VSCA 129 (Niall, Lyons and T Forrest JJA) [54].
The prosecution challenged the defence contention that your offer to plead guilty to manslaughter should be accorded any weight in sentence. The offer was an unrealistic one advanced in the context of an overwhelming case of murder, and did not reflect a recognition of the true essence of your conduct.
I do not accept that your offer to plead guilty to manslaughter is in any way mitigatory in your case. In my view, it can more realistically be seen as an opportunistic attempt to avoid responsibility for the crime of which you knew yourself to be guilty. You were perfectly entitled to make that attempt. You can hardly expect some benefit for having done so. The offer was correctly rejected by the prosecution.
Mr Gwynn submitted that you have some capacity for empathy and remorse, and indeed have demonstrated some remorse. In expanding on that topic, Mr Gwynn acknowledged that your actions in the immediate aftermath of the crime, and for some days thereafter, showed no sign of remorse, but that you have now proceeded part-way down the path to being properly remorseful.
In respect of the account you gave to the psychologist Mr Armstrong, Mr Gwynn submitted that whilst it was inconsistent with what actually occurred, that may be a function of your perception of reality rather than because of deliberate dishonesty. In any event, he submitted that even if you did lie to the psychologist, that would not extinguish remorse.
Mr Gwynn relied upon what you said to Mr Armstrong, as well as the contents of some of the character references filed on your behalf, as being supportive of the presence in you of the ‘green shoots’ of remorse.
The prosecution challenged the contention that you have exhibited genuine remorse. Mr Bourke pointed, amongst other things, to your conduct immediately after the shooting and over the ensuing days, including your setting up of a false story to try to evade responsibility, and the fact that years later, after your conviction, you told a dishonest story to Mr Armstrong, denying the essential culpability of your conduct.
In the immediate aftermath of shooting Mr Johnson, you got back into your vehicle, and, leaving him helpless, dead or dying on the roadway, you drove quickly from the scene. You deposited your young friends at Hume Weir, imploring them to say nothing to anybody about what you had done. You embarked on an extensive escapade in order to avoid capture by the police, which took you to a number of regions in Victoria, NSW and South Australia, had you driving two cars and changing the number plates of one of them, saw you involved in a police pursuit, and involved your concocting a false and self-serving account of what had happened. You claimed that your reason for fleeing was because you feared retribution from those close to Mr Johnson. That, too, I am satisfied, was false. I have no doubt that your reason for fleeing the scene and seeking to avoid capture was because you wanted to avoid being charged with the murder you knew you had committed.
Your conduct from the time you shot Mr Johnson was illustrative of the complete lack of regard you had for his wellbeing, and your selfish desire to avoid blame.
You ran a trial in this case, which was entirely your prerogative. Unfortunately, however, months after your conviction, you showed that you were still not willing to acknowledge the reality of your actions. You gave a phony story to Mr Armstrong in which you portrayed yourself as an innocent man. Mr Gwynn submitted that what you told Mr Armstrong may have been a function of your perception of reality rather than because of deliberate dishonesty.
I do not accept that contention. There is only one explanation for the story you told Mr Armstrong. You thought it served your interests to continue to lie about what you had actually done.
What the false account served to demonstrate was that your lack of real remorse and regret for your crime persisted at least up to the date of your conversation with Mr Armstrong in February this year.
True it is, you told Mr Armstrong and others that you were sorry for what had occurred. In the context of the totality of your behaviour, however, it is difficult to see these as any more than hollow and meaningless words.
I hope that with the passage of further time, you will be willing to fully acknowledge what you did and its devastating consequences, and that you do, in your heart, harbour the ‘green shoots’ of remorse to which Mr Gwynn referred.
For present purposes, however, I could not reach a conclusion in your favour as to the existence of genuine remorse unless I were satisfied on the balance of probabilities on the matter. I am wholly unsatisfied in this regard.
I point out that the absence of remorse is not an aggravating feature in your case. Rather, it represents the absence of a feature which might have been mitigating.
Victim impact statements
Three victims impact statements were tendered during the plea and read aloud by the prosecutor. These were from the mother of Duwayne Johnson, Patricia Johnson, his sister, Rebecca Johnson, and his niece, Javayah. As is often the case in matters such as this, these are intensely personal documents illustrating the heart-felt and powerful feelings of anguish, sadness, loss and fear, resulting from your crime.
Patricia describes her heavy, broken heart which will never heal. Duwayne loved his four children, who miss him every day. As for Patricia, she feels her life will never be the same, and says that she suffers every day without her son in the world.
Rebecca sets out in some detail the terrible effects upon her of the murder of her brother. She struggles every day with the sadness, depression and anxiety, and has a sense that the old her has been taken away from her children, as though a piece of her is missing, a sensation that I have heard described by victims in the past. Her relationships and parenting have been affected, and she thinks about Duwayne every second of every day. She finds the silence in the house deafening and painful. She worries about her children leaving the house without her, because she is frightened of what may befall them. Again, I note that this sense of fear for her loved ones which Rebecca describes accords with the experience of many victims of violent crime. She grieves the life, the opportunities and the important milestones denied Duwayne. She feels as though she is living in a movie. Her life has stopped, and the rest of the world is flashing past. The drawn-out court process has prevented her from being able to properly grieve. All she can do is take it one day at a time, waking up each morning because she has to be there for her family.
Javayah describes Duwayne as the best uncle she ever met, and someone she will always remember as caring and loving.
I take into account, as I am required to do pursuant to s 5(2) of the Sentencing Act 1991 (‘the Act’), the contents of the victim impact statements, and repeat the appreciation I expressed on the day of the plea hearing for the authors having had the courage and fortitude to play their important part in the criminal justice process.
Your youthfulness
Mr Gwynn relied, to an extent, on your youthfulness as a matter in mitigation, in particular, as elevating the importance of rehabilitation in the sentencing synthesis.
A long line of authority dictates that the youthfulness of an offender may be a primary consideration in sentencing, and that in such a case, rehabilitation is usually far more important than general deterrence.[32] That is not always the case, however, and the law has recognised that there will be cases in which factors such as youth and rehabilitation would take a ‘back seat’ to other sentencing considerations.[33]
[32]R v Mills [1998] 4 VR 235.
[33]R v Wright [1998] VSCA 84 [6]; Director of Public Prosecutions v Lawrence (2004) 10 VR 125 [60].
In considering the authorities on the topic in Azzopardi v The Queen, Redlich JA (with whose judgment the other members of the Court of Appeal agreed), stated:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.[34]
[34][2011] VSCA 372 [44].
There was a later confirmation of the principle by the Court of Appeal in Siilata v The Queen,[35] a case concerning an offender sentenced for aggravated carjacking who was 18 years old at the time of the offence and 19 at the time of sentence:
True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offence increases. That must be so in this case.[36]
[35][2019] VSCA 277 (Ferguson CJ, Whelan and Priest JJA) (‘Siilata’).
[36]Siilata (n 35) [31] (citations omitted).
You are still only 27 years old. As such, you are no longer a young offender, and unfortunately, you have engaged in consistent and repeated criminality over the years leading up to this crime. Whilst the mitigatory significance of your relative youth at the time of your crime and now is not entirely extinguished, the extreme gravity of your offending means that your youth has much less of a part to play in sentence than would often be the case. It is clear that the sentencing objectives of deterrence, denunciation, just punishment and protection of the community must be very prominent in the sentencing calculus in your case, and that the weight to be attached to your youth is correspondingly reduced.
Prospects of rehabilitation
Mr Gwynn described your prospects of rehabilitation as ‘sound’.[37] Mr Bourke described those same prospects as ‘guarded at best’.[38] As the prosecution put it, you have an entrenched history of daily ice use since your teenage years, and only short periods of abstinence. Mr Bourke submitted that your criminal and drug history, and poor insight into your offending, would support that characterisation of your rehabilitative prospects, which accords with the conclusion of Mr Armstrong on the matter.
[37]Defence Outline of Submissions for Plea Hearing, 24 April 2024, 5 [39].
[38]Prosecution Outline of Prosecution Submissions, 26 April 2024, 3 [11].
In the circumstances, I cannot consider your prospects of rehabilitation as being any better than fair. On the negative side is the seriousness of the current offending, your lengthy drug and criminal histories, and your unwillingness, up to this point, to fully accept responsibility for your actions. On the positive side, on the other hand, is the high level of family and other support which you are fortunate to receive.
Standard sentence scheme
As your crime was committed after 1 February 2018, the standard sentence scheme applies to the offence of murder of which you have been found guilty. The standard sentence for murder is 25 years.
Pursuant to s 5A(1)(b) of the Act, the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.
The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen (‘Brown’).[39] The Court stated:
For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
· is to be treated as a “legislative guidepost”, having the same function as the maximum penalty;
· does not affect the established “instinctive synthesis” approach to sentencing;
· does not require or permit “two-stage sentencing”; and
· does not otherwise affect the matters which the court may, or must, take into account in sentencing.[40]
[39][2019] VSCA 286.
[40]Ibid [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you on the charge of murder by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown.
Section 5B(5) statement
Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.
The applicable law does not require me in complying with the requirement of s 5B(5) to ‘attribute particular mathematical values’ to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[41] It does, however, require me to ‘identify fully the facts, matters and circumstances’ which bear upon the judgment I have reached as to the appropriate sentence.[42] I have endeavoured to do that in some detail during these reasons for sentence.
[41]Muldrock v The Queen (2011) 244 CLR 120 [29].
[42]Ibid.
In arriving at the sentence I will shortly pass upon you, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I will announce.
Current sentencing practices
The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that I:
must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[43]
[43]R v Brown [2018] VSC 742 [111].
The defence provided copies of a number of sentences for murder as a standard sentence offence. I note that most of the sentences were of offenders who pleaded guilty to murder. I have had regard to these sentences and sentences passed in other cases of murder since the standard sentence regime commenced in arriving at the appropriate sentence for you.
I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.
COVID-19 considerations
Mr Gwynn submitted that most of your period on remand has been served ‘during the ravages of the [COVID-19] pandemic, with its inherent lockdowns and restricted work opportunities and programs’.[44]
[44]Defence Outline of Submissions for Plea Hearing, 24 April 2024, 4 [28].
That submission does not sit comfortably with the timing of the pandemic, and the resulting restrictions. The worst of that had fortunately passed by the time you came into custody. I do take into account in sentencing you that some of the time you have thus far spent in custody has been somewhat affected by ongoing restrictions. I note, however, that fortunately, this has not prevented you from having a number of worthwhile jobs while in custody, and I take account of the fact that you seem to be using your time in custody as well as possible. I note, in particular, your responsible position as a peer educator.
Non-parole period
If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be greater than 20 years.
In the written submissions filed on 13 June 2024, Mr Gwynn submitted that in what he described as the unique circumstances of your case, a constellation of matters cumulatively support a departure from the requirements of s 11A(4) in the interests of justice.
Notwithstanding that that submission was only directed to ‘a term of less than 20 years’, I have interpreted it as also being intended to address head sentences of 20 years or more, as contemplated by section 11A(4)(b). I do not agree with the submission.
Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, the non-parole period I will fix will exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. I indicate that I have considered the magnitude of the non-parole period I will shortly announce relative to the head sentence. Whilst the law makes it clear that there is no ‘usual’ non-parole period for a given head sentence,[45] I am conscious of the fact that the non-parole period I will set will represent a higher proportion of the head sentence than would sometimes be the case. Nevertheless, I have decided that the non-parole period I will impose is the minimum term that I have determined that justice requires you to serve, given all of the circumstances, before being eligible for parole.[46] It will still provide for the potential of a lengthy period of supervision in the community on parole should you qualify for parole at the end of your minimum term.
[45]Wallace v The Queen (2012) 35 VR 520 [16].
[46]DPP v Josefski (2005) 13 VR 85 [43].
Important sentencing considerations
As I have already observed, your crime was a very serious one. For absolutely no discernible reason, you shot and killed an innocent young man who presented no threat to you. It is a tragedy that Duwayne Johnson’s life was snuffed out by you in such senseless fashion. It is a devastating event from which his family members and friends will never recover. Furthermore, outrageously violent and entirely uncalled for crimes such as this understandably cause great disquiet and fear in the community.
To my mind, the important reasons for which sentence must be passed on you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community.
You must be punished in a way which reflects the seriousness of your crime and amounts to an appropriate response to it. The sentence must communicate in clear terms this Court’s condemnation and disapproval on behalf of the community of your violent and senseless criminal conduct which took away the life of an entirely innocent young person. His life was precious to his family and friends and to the community in which he lived. You acted in the clear knowledge of the wrongfulness of your conduct. Your crime was not well thought out, but it was nonetheless vicious and entirely uncalled for. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out a serious crime of violence against any other person, extending to violence of such magnitude as to take the life of others, that such conduct will be met with very strong punishment. You must also be specifically deterred from any future violent actions to which you may be disposed. Your long criminal history amplifies the need for you, personally, to be deterred. As for the protection of the community, that purpose will largely be met by the imposition of the long sentence of imprisonment which is inevitable for offending of this seriousness. Notwithstanding that, the protection of the community is still a very relevant consideration. As for rehabilitation, I do not ignore that as a sentencing consideration, but for the reasons I have stated, it must, in your case, very much take a back seat to more prominent sentencing objectives.
Sentence
Benjamin Stiler, for the murder of Duwayne Johnson, you are sentenced to be imprisoned for 27 years.
I fix a period of 21 years during which you will not be eligible to be released on parole.
I declare a period of 878 days up to and including yesterday, 16 June 2024, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
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