Director of Public Prosecutions v Stone
[2019] VSC 322
•14 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0215
S CR 2018 0222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE EDWARD STONE |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 April 2019, 2 May 2019 (Plea) |
DATE OF JUDGMENT: | 14 May 2019 |
CASE MAY BE CITED AS: | DPP v Stone |
MEDIUM NEUTRAL CITATION: | [2019] VSC 322 |
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CRIMINAL LAW – Sentence – Murder – Guilty plea – Accused and deceased neighbours – Previous altercation between accused and deceased – Accused shot deceased twice with 12-gauge shotgun – Deterioration in mental state of accused prior to offence – Accused diagnosed with a number of mental illnesses – History of alcohol and drug use – Better than reasonable prospects of rehabilitation – Total effective sentence of 21 years and 3 months’ imprisonment, with non-parole period of 18 years.
CRIMINAL LAW – Sentence – Possession of unregistered handgun – Guilty plea – Sawn-off .22 rifle with silencer found in roof cavity of accused’s house – Sentenced to 9 months’ imprisonment, 3 months to be served cumulatively on murder sentence of 21 years’ imprisonment.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R F Edney | Stary Norton Halphen |
HIS HONOUR:
On 5 March 2019, you pleaded guilty before me to the murder of Wayne Michael Binse, and the possession of an unregistered handgun. Your plea came on for hearing on 24 April 2019, and it was reopened on 2 May 2019. Ms Robyn Harper, Crown Prosecutor, read the Prosecution Plea Opening, and the written form of that opening became Exhibit 1 on the plea.
On 13 December 2017, at about 2.00 pm, you shot and killed Wayne Binse outside his home at 10 Poole Street, Deer Park. You shot Mr Binse twice with your 12-gauge shotgun. I will deal with the details of the shooting later in these reasons.
Wayne Binse, who was 37 years of age, lived with his partner of eight years, Janelle Jones, at the Poole Street address. They moved to that address in mid-2016. Although Mr Binse had previously been a quarantine inspector, at the time leading up to his death, his life and that of Ms Jones had been marked by an abuse of illicit drugs, which led to their children, then aged six, four and two, being placed in the care of Mr Binse’s mother and the Department of Health and Human Services.
The Poole street premises had previously been occupied by Dean Jones, the brother of Janelle Jones. Prior to Mr Binse and Ms Jones taking over the house, there had been an ongoing dispute between you, Dean Jones, his brother Darryl, and Dean Jones’ partner, Sarah Niven, over parking in the street.
You lived at 9 Poole Street, almost directly opposite, but the properties are slightly offset from one another, so that if a car or cars were parked outside 10 Poole Street, it made it difficult for you to reverse out of your driveway.
It is alleged that from late 2016, you would regularly stand at your gate and point at the occupants and visitors with an outstretched hand formed into a firearm. You have denied that behaviour. I am satisfied that it did take place, but I am also satisfied that at that time, you did not intend to take the matter further.
In November 2015, Darryl Jones was living in a caravan in the front yard of 10 Poole Street. You believed that drugs were being sold from the caravan, and you complained about loud music being played. The local council and police received complaints about those matters. On one occasion you observed Darryl to strike Sarah Niven in an argument which continued into the front yard. You yelled at Daryl Jones words to the effect that if he did not leave before you unlocked your gun cabinet, then you would shoot him. You later appeared on your veranda holding a firearm. You dispute that matter as well, but I accept that the incident did occur. It does little to inform the present case, and at best, simply forms part of the background between you and the associated parties.
At some stage, which is not entirely clear, Darryl Jones moved back to 10 Poole Street, and in January 2017 there was incident which involved a fight between you, Darryl Jones and Wayne Binse. It is suggested that, although you may have been the original aggressor, you were bested by the two men, and as you retreated to your own home, you were punched and kicked to the face by Wayne Binse, who had been standing over you. Your wife who, with your son, had witnessed the altercation, called the police. The police came to your home later that night and observed some minor injuries to your face, but you made no complaint. You have said that you suffered significant injuries, including facial fractures, but did not seek medical attention.
I am not able to make any finding about the severity of any physical injuries suffered by you, but I do not doubt that the incident took place in which you were assaulted, and that the incident had a significant effect upon you thereafter. It seems that shortly after the incident, Darryl Jones moved out.
I come now to the critical events. At about 10.00 am on 13 December 2017, Janelle Jones and Wayne Binse left the house to attend the Department of Human Services to see their youngest child, as they did each day. They usually returned in the afternoon. They saw you reverse out of your driveway. You parked your car and stood at the front gate, laughing at them in what Janelle Jones thought to be a threatening manner. You were later to deny that you intended any threat. They left for their appointment.
At about 1.30 pm, you went over to 10 Poole Street, where you threw a number of bricks through the front windows of the house. Eleven window panes in all were broken.
You closed the front gate across the driveway. It was not usual for the gates to be closed when Wayne Binse and Janelle Jones were out. It followed that, if a car was to be driven to the premises, somebody would have to get out to open the gates.
Wayne Binse and Janelle Jones left the Department of Human Services at about 1.42 pm to return home. They went to the supermarket on the way. Although it is not accepted by you, I am prepared to proceed on the basis that you took a chair out onto the front veranda where you drunk a can of Wild Turkey while waiting for Wayne Binse and Janelle Jones to return home. They did return home at about 2.00 pm.
Janelle Jones, who was in the passenger seat, saw the broken windows and said words to the effect of, ‘We have been robbed’. She got out of the car and began to open the gates. You came across the road, armed with your Maverick, single barrel bolt action shotgun which was registered to you. The shotgun had a maximum capacity of three shots. It was loaded.
You were holding the shotgun at your shoulder and you were looking down the barrel as you moved towards Janelle Jones who was facing towards the gate. Wayne Binse saw you and yelled at Ms Jones to warn her. Ms Jones turned to face you as you continued to walk forward. Wayne Binse got out of the car and came around the back of it, putting himself between you and her. He was standing on the edge of the gutter on the passenger side of the vehicle and you shot him in the groin from a distance of between 8 and 12 metres. Some of the pellets hit the boot of the car.
As Wayne Binse fell to the ground, you said, ‘You think you’re so smart’ and you continued to walk towards him. He was calling to Janelle Jones for her to get help. You reloaded the gun and a cartridge case was ejected onto the road.
While standing over the deceased you fired a second shot at his head, hitting him in the right cheek. That shot was fired from 50 to 150 cm away. The shot was fatal. You said, ‘You think you’re smart now?’. You walked back to your house with the shotgun. You asked towards Wayne Binse, ‘Now how are you going to support your windows?’.
You were seen to be grinning as you went home. You removed the bolt from the shotgun and returned both parts of the firearm to the safe where they were ordinarily kept in the garage.
The police arrived at about 2.10 pm and moved Mr Binse down the road where he was attended by paramedics. You made a call to 000 at 2.27 pm in which you reported that there had been a drive-by shooting at 10 Poole Street. You were arrested in your backyard at about 2.30 pm.
You were spoken to by police both at your home and at the Sunshine Police Station. This was after you had been found to be fit to be interviewed.
The Prosecution Plea Opening states as follows:
39.During a record of interview commencing at 4pm, the accused stated:
•He was cleaning his shotgun on the porch when 2 males invaded his front yard (Q&A 68-92);
•They came into his driveway and tried to attack him so ‘I loaded my fuckin’ shotgun and give it to him’ (Q&A 114-117);
•Was cleaning his shotgun and a guy in his driveway with a machete was threatening him and coming towards him ... he kept coming, then he ran across the road and died (Q&A 144-165);
•He shot the deceased once (Q&A 188-190);
•He loaded the firearm when he told him to leave the premises (Q&A 232);
•The second male left in his green 4 door commodore. ‘When he jumped in the car and fucked off, when the other guy was crawling back to the fuckin’ property where he come from.’ (Q&A 247);
•In February he asked these people to move a vehicle and they told him to fuck himself (Q&A 310-313);
•Intended the shot to be a warning in the air (Q&A392-393); and
•The firearm was not meant to discharge (Q&A394-395).
40.The accused was further interviewed by members of the Homicide Squad at 7.05pm during which he provided a further account of what had taken place:
•He didn’t want the offence to be referred to· as murder, instead preferring the term ‘termination of an individual’ (Q&A 565-575);
•Used his Maverick bolt action shotgun, loaded it and put a round high. ‘Obviously it got him. I’m sorry.’ (Q&A 623-625);
•A white car pulled into his driveway and entered his property by about half a metre, then pulled out and parked in the driveway across the street (Q&A 680-686);
•The deceased walked back across the road and something happened to him there (Q&A 734);
•Only fired one round, after firing the warning shot he went inside, disabled the firearm and locked it in his safe (Q&A 761, 794-797);
•While he was securing the firearm he heard another bang across the road (Q&A 805-813); and
•‘All I had to do this morning was — rid of my threat’ (Q&A 1027).
41.The interview recommenced at 9.38pm after which time the accused told investigators
•He knew nothing about the broken windows at 10 Poole St (1092-1095);
•He fired one round from his porch (Q&A 1170-1171);
•‘There’s no way I stood over that person and let it go at all’ (Q&A 1248-1249); and
•The spent round would be in the front yard (Q&A 1333).[1]
[1]Prosecution Plea Opening dated 18 March 2019, 9–11.
In both interviews you seem to suggest that the killing was a result of a warning shot which had gone wrong. In the last interview you denied breaking the windows.
I note that the matters adverted to in the prosecution opening and by me here are only some parts taken from the interviews which do contain large passages of rambling narrative.
No shotgun cartridges were found at the scene but there were two found in the kitchen rubbish bin at your home. It follows that you collected the ejected cartridge at the scene.
The shotgun and the separately stored bolt were recovered from your gun safe.
A sawn off .22 rifle with a silencer fitted was recovered in the roof cavity of your house. The serial number had been removed. The rifle was fitted with a ten shot magazine. It fitted the definition of a handgun within the definition of the Firearms Act 1966. It was in working condition. The silencer had been permanently attached.
The maximum penalty for murder is life imprisonment and for the possession of an unregistered handgun is 600 penalty units or seven years’ imprisonment.
On the plea, I received Victim Impact Statements from:
· Annette Binse, who is Wayne Binse’s mother;
· Barry Steven Binse, who is Wayne Binse’s brother;
· Visnja Banfic who is the partner of Barry Steven Binse;
· Janelle Jones who is the partner of Wayne Binse; and
· Ana Valka, who was a witness to the shooting who had been doing no more than driving down the street minding her own business.
The pain and anguish of all of the victims is clear but in particular, that of the members of the family. That is particularly so because this was a pointless murder. At the heart of the consequences of the murder is that four children[2] have lost their father, and the burden on their grandmother is great. Further, the effect on Ms Jones, Wayne Binse’s partner for almost ten years, who was also directly involved, as I have described, in the events of the shooting, has been close to devastating, and at least in the foreseeable future she will be unable to care for the children, and she is now homeless.
[2] Mr Binse had one older child from an earlier relationship from whom he was estranged.
When viewed objectively, this is a very serious example of the crime of murder.
It is necessary to set out your background and present circumstances. You are now 50 years of age, and you were born in Essendon. You were one of five children, have an elder brother, two younger brothers, and a sister. There appears to be some family history of mental illness.
You grew up largely in Castlemaine, where you were educated, and completed Year 11 of the Castlemaine Technical College. Your father was a prison officer, and was a violent, unpredictable alcoholic. You appear otherwise to have had a reasonably unremarkable childhood.
After leaving school you completed an apprenticeship as a fitter and turner, and you worked in that trade until about two years ago, and I will return to that subject.
You have a daughter aged 21, with whom you have some contact. You have been in a relationship with your present partner for 20 years, and the two of you have a 14 year-old son. You are now separated, but your partner brings your son to visit you. I should interpolate in that, that I suspect your reason for the separation was to do absolutely everything you could to support your partner and your son.
You had an interest in firearms, and have involved in hunting, four-wheel driving, archery, and motorcycling, and you had included your son in a number of those activities.
You have some prior convictions, the last of which was in 1997. I do not regard them as significant in any way for present purposes.
On the plea, I received reports from:
· Forensic Psychiatrist, Fiona Best, dated 20 June 2018 and 9 February 2019; and
· Neuropsychologist, Associate Professor Warrick Brewer, dated 7 October 2018.
Those reports had been prepared on your behalf.
A further report from Dr Danny Sullivan of Forensicare, dated 15 January 2019, prepared on behalf of the Director of Public Prosecutions, was tendered on the plea.
Your psychiatric condition before and at the time of the offending, and now, is quite complicated. Dr Best in her first report, and Associate Professor Brewer in his report, expressed the opinion that you might, in Dr Best’s view, and did, in Associate Professor Brewer’s view, have the defence of mental impairment open to you. Dr Sullivan was of the opinion that you did not, and Dr Best said in her second report:
Based on my previous assessment and today’s assessment, I’m not able to give a firm opinion about whether Mr Stone has a defence of mental impairment available to him.[3]
[3]Evidentiary Report of Dr Fiona Best dated 9 February 2019, 8.
Since it would have been incumbent upon you to demonstrate, on the balance of probabilities, that you did have that defence open, you – acting, I suspect, on legal advice - came to the conclusion that this case should be resolved by you pleading guilty to the crime of murder.
The difference in the two reports of Dr Best is that she gave little, if any, regard to the question of intoxication at the time of her first report, but it was a matter which she addressed in some detail before making the comment that I have set out above.
Although Associate Professor Brewer did recognise your drug use and state of intoxication, it is not clear to me the extent to which he had regard to those matters in the conclusion that he reached. Insofar as his report is concerned, in the ways that it is inconsistent with your plea, I have not had regard to it.
What emerges from the three reports however is a history of a deterioration in your mental state over a period of about two years. It seems to me that you had been concerned for some time and you had developed strong views about the conduct of those living opposite you, together with people visiting at the house. You suspected them of drug dealing and drug use. You regarded them of retaliating when you reported the matter to the police and local council.
You told Dr Sullivan that they were gathering outside your house, threatening home invasion openly and watching your son when he walked home from school.
You expressed fear of your neighbours and said that you slept with a shotgun and generally withdrew from your usual activities including rabbit shooting. You said you never left the house. You describe similar and even more extreme behaviour to both Dr Best and Associate Professor Brewer.
There was the particular incident in January 2017 which I described earlier, and it appears that your condition may well have deteriorated further after that.
You had an earlier history of drug use which you stopped when you commenced your relationship with your partner, but you described your use of alcohol and drugs to Dr Sullivan as follows:
Mr Stone reported alcohol use commencing at the age of 13 and reported that he drank heavily. He said that from 2017, he drank eight to nine longnecks (750ml) of standard beer and 12 cans of 8% pre-mixed bourbon daily, and stated there were no days in which he did not drink alcohol. He reported that he would start drinking first thing in the morning and if there was no alcohol in the house he would immediately to obtain it.[4]
[4]Forensicare Psychiatric Report of Dr Danny Sullivan dated 15 January 2019, [24].
There is a further passage in the report detailing your use of marijuana, which reads as follows:
Mr Stone reported smoking cannabis from the age of 13 and was smoking up to a ¼ oz per day over the last two years. He reported that he tried giving up six months prior to these events as he thought he was ‘too old’ but was unable to do so. He felt that while using cannabis he was ‘relaxed’ but had not had time without it.[5]
[5]Ibid [25].
You reported a pattern of drug use on the day of the offending similar to that described to Dr Sullivan.
As I said you qualified as a fitter and turner and it seems clear that you had always been a hard worker and had been active in the community. However, in the period leading up to these events, you lost at least five jobs as a sign of your deteriorating mental health.
Your partner, Kyla Mamic, provided a glowing letter about what you were like as a man, a father, a partner and a member of the community. She also gave a further letter, and gave evidence before me when the plea was reopened, as to her observations of the significant deterioration in your behaviour and your mental health over the 12 months preceding the murder.
Dr Sullivan said that at the time of the murder you were suffering from severe substance abuse use disorder, mild neurocognitive disorder due to alcohol use, adjustment disorder with mixed depressive mood and anxiety and delusional disorder of the persecutory subtype.
Dr Best said you were suffering from a Delusional Disorder — persecutory subtype, although she would not have totally excluded a drug induced psychosis.
Associate Professor Brewer added Post-Traumatic Stress Disorder to the list and cognitive disorder, mild-moderate acquired brain injury. The question of whether you suffer from an acquired brain injury has not been finally resolved.
It follows that in relation to the murder of Wayne Binse, you did believe that you needed to act to protect yourself and your family, although that belief was a delusional one. I am satisfied that there is a realistic connection between your offending and your diagnosed mental illness or illnesses. Such matters are of little consequence, I suppose, to the friends and family of Wayne Binse.
As a matter of law, subject to the severity of your mental illness, it can, and in your case does reduce your moral culpability. The relevance of just punishment and denunciation is reduced. In your case to some degree, the principles of general and personal deterrence are to be moderated. But we do proceed, and it should not be omitted, that the case proceeds on the basis that you did know what you were doing, and as it was described by Dr Sullivan in his report:
On the basis of his premeditation and subsequent conduct, as well as the evolution of his antagonism with the neighbours, I consider he was aware that shooting Mr Binse was wrong, that is, he was able to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. I consider furthermore that his reasoning and judgment at the time of the alleged offence was likely moderately impaired by intoxication.[6]
[6]Ibid [84].
I have already referred to the letter that I have received from your partner and a letter from your friend Michael Milonas, and to repeat it, and to include Mr Milonas, they both describe you as a man completely different from the man who committed this crime, and helps show the degree of your deterioration.
Perhaps more importantly, in relation to what was said by your partner, in describing the deterioration and the degree of your deterioration, she also told me of the effects that it had on her and on your son.
Much reliance was placed upon the incident in January 2017 in which you were assaulted. On the whole of the evidence, you appear to have been the original aggressor, although ultimately you were harshly dealt with in the way that I have described. That does appear to indicate that your condition had already begun to deteriorate at that time, although it became much worse over the following nine months, in part exacerbated by your increased use of cannabis and alcohol.
In a mental state examination in December 2017, Associate Professor Brewer represented you as having said that you were remorseful and very remorseful, although you continued to claim that you regarded your actions as justified. Quite how the two propositions of remorse and justification fit together is not entirely clear.
You have pleaded guilty, and that is a matter strongly in your favour, but I do not accept that you can be shown to be actually remorseful, although I do not doubt that you now sincerely regret what you have done. But it is really in view of your mental illness, for which you will receive a benefit in the sentencing process, your inability to both remember in detail these events and to work out the question of remorse one way or another is not wholly surprising.
I have been informed that you have been held in protection because your victim, Wayne Binse, was the half-brother of Christopher Binse, who is a somewhat notorious prisoner in this State, who has many prior convictions for violent crimes, and he will be detained in the Victorian criminal justice system for years to come, and reference might be made to his sentence imposed by Terry Forrest J[7]. On the other hand, I have been provided with a copy letter he sent you in which he has said that he forgives you and bears you no animosity. You apparently have been threatened by other prisoners, and you are disinclined to take Christopher Binse’s letter to you at face value, and to a large degree all of this will turn on what view the authorities take of it. It has not been suggested that you will not be treated as a protection prisoner during your sentence, and that is a matter to be taken into account.
[7]R v Binse [2014] VSC 253.
Because of your age and your history, and of the possibility of real improvement in your mental state, I regard your prospects of rehabilitation as being better than reasonable.
You have also pleaded guilty to the charge of possession of an unregistered handgun. That sawn off .22 rifle with silencer attached was found in the roof space of your home. In the material before me, the only reference I could find of that weapon was what you said to Dr Sullivan about it, who at para [44] of his report said:
He told me that he was also charged with possession of an unregistered firearm but would not tell me where he got this.
He quoted you as saying, ‘Someone gave it to me, an old guy.’
It is a moderately serious example of the crime charged. It is entirely separate from the murder charge. I will attach some additional punishment with respect to it, but the principles of totality have to be taken into account.
In ordinary circumstances, I am obliged to have regard to just punishment, retribution, general and specific deterrence. In your case those principles are to be moderated in the way that I have set out. Without those factors in your favour, it would have led to a much higher sentence than that which I am about to impose upon you.
This was a pre-meditated, at least in part, planned execution murder of an entirely innocent man. The murder was unnecessary and pointless.
On the charge of the murder of Wayne Binse, you are sentenced to be in prison for 21 years.
On the charge of a possession of an unregistered handgun, you are sentenced to be imprisoned for nine months. I order that three months of that sentence be served cumulatively upon the sentence on the charge of murder.
That is a total effective sentence of 21 years and three months.
I fix a period of 18 years before you are eligible for parole.
I declare that you have served 517 days by way of pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate had it not been for your plea of guilty, I would have sentenced you to be imprisoned for 24 years and three months with a non-parole period of 21 years. It should be noted that in giving that indication, I am dealing only with the question of your plea of guilty.
I order that my declaration and this indication be entered in the records of the court.
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