DPP v Kotiau
[2020] VSC 245
•7 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0233
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIEAHN KOTIAU |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April, 6 May 2020 |
DATE OF SENTENCE: | 7 May 2020 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Kotiau |
MEDIUM NEUTRAL CITATION: | [2020] VSC 245 |
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CRIMINAL LAW – Sentence – Assist offender – Assisting in disposal of a body – Early plea of guilty – Undertaking to give evidence in any trial of principal offender – Genuine remorse – Good prospects for rehabilitation – Young offender – No prior criminal history - Community correction order imposed – Crimes Act 1958 (Vic), s 325 - Sentencing Act 1991 (Vic), ss 3, 5, 6AAA, 8A, 37, 38, 45, 48C, 48CA, 48D, 48E, 83AD, 83AS.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke | Office of Public Prosecutions |
| For the Accused | Mr R Thyssen | Law and Advocacy Centre for Women |
HIS HONOUR:
A. Introduction
Kieahn Kotiau, on 6 November 2019, you formally pleaded guilty to 1 charge of assist offender,[1] in relation to events occurring on 17 and 18 February 2019, on the basis that the principal offence was murder. The maximum penalty for this offence is 20 years imprisonment.[2]
[1]Crimes Act 1958 (Vic), s 325(1). A plea of guilty was initially made on the first day of the committal hearing.
[2]Crimes Act, s 325(4)(a), murder being an offence for which the penalty is level 1 imprisonment. Your brother has been charged with murder. He has not yet been tried, but that is not a bar to you being indicted and convicted: s 325(3).
Your offending relates to the assistance you provided to your brother, Shaye Kotiau, to dispose of the body of Tamara Jessica Farrell, whilst knowing or believing that he had murdered her.
B. Background and circumstances of the offending
You and your brother grew up with Ms Farrell and all of you referred to each other as cousins. Your mother and Ms Farrell’s mother had been close friends since they themselves were children. At the time of her death, Ms Farrell was almost 32 years old. You were 19 years old and your brother was 26 years old.
On 16 February 2019, you and your brother went to Ms Farrell’s house for a games night she had invited you both to. You and your brother drove from your family home in Altona (“the Altona House”) and arrived at Ms Farrell’s house in Canadian, near Ballarat, around 11.00 pm. You, your brother, Ms Farrell and Ms Farrell’s flatmate, Russell Goodes, stayed up playing drinking games together at the house until you all went to bed at around 6 am the next morning. As your brother was feeling unwell from excessive drinking, Ms Farrell brought him a bucket and 3 bottles of water, before retiring to her bedroom.
Whilst everyone else was asleep, your brother killed Ms Farrell in her room. The exact circumstances in which Tamara Farrell was killed are not known, but your brother has since described the killing as brutal.
It appears you first awoke some time during the morning, but you went back to sleep. You later awoke around 12:30 pm and went into the living room. You proceeded to look around the house for your brother, but you did not look in Ms Farrell’s bedroom as the door was closed.
Earlier that day Russell Goodes had collected his son and his son’s mother. They left the house at 1.55 pm. As soon as they left, your brother came out of Ms Farrell’s room. He came in and out of the room a few times before he grabbed your sleeve and dragged you into the hallway and said: “I’m going to show you something that’s going to change our lives forever”. He took you into Ms Farrell’s bedroom and said, “There’s a body”. He then opened the door of the en-suite and revealed Ms Farrell’s naked body lying on the floor. You noticed that the right side of Ms Farrell’s face was dark, as if bruised. You told your brother you needed to call someone, but he said, “No we are getting rid of the body”. You told him you did not want to and tried to leave. He grabbed the back of your dress, pulled you close and said, “We are getting rid of it”.
It is at this moment, on the afternoon of Sunday 17 February 2019, that you began assisting your brother.
You reversed your car into the garage when your brother asked you to do so. You watched him line the boot of your car with a tarpaulin from the garage. When Mr Goodes and his son arrived home at about 2.15 pm, your brother asked you to keep them away from him and you did so. You distracted them in the lounge room by talking to them while your brother went into Ms Farrell’s bedroom.
Mr Goodes had parked his car in front of yours.
You followed your brother’s instructions when you pretended that you had received a message from him to pick him up from McDonald’s so that Mr Goodes would move his car. This enabled you to take your car out of the garage and park it out front of the house. You assumed your brother had already placed the body of Ms Farrell into the boot of your car.
As instructed, you returned inside. When you came back inside Mr Goodes made you some food. You did not tell him what had happened. You report that you thought about various ways of alerting others, but you were concerned for your own safety and the safety of Mr Goodes and his son if you sounded the alert.
You returned to Ms Farrell’s bedroom where your brother was. Your brother went passed you and out to your car. You said goodbye to Mr Goodes. You then drove away with your brother. Ms Farrell’s body remained in the boot of the car.
You began driving in the general direction of the Ballarat Police Station. When your brother realised he said, “Don’t you dare”. He grabbed your leg and told you that the 2 of you should make an appearance at the Altona House. While driving at this time, you were crying.
On the way to the Altona House you stopped at a nearby 7-Eleven petrol station. It was late afternoon. Your brother told you to stay in the car and took a 5 litre plastic petrol container from behind the driver’s seat. He filled your car with petrol and put some petrol in the petrol container and placed it in your car. You moved your car to park it in front of the store.
Your brother did not have money on him to pay for the petrol. He told the cashier that the car would remain parked outside until he returned with the money. Your brother told you not to talk to anyone. He returned to the Altona House to get money to pay for the petrol.
You and your brother had arrived at the 7-Eleven at 4.32 pm. After your brother left you were alone until approximately 5.20 pm when your brother returned. You remained in your car, with Ms Farrell’s body in the boot, and did not alert anyone. While you were waiting a number of protective services officers arrived and spent approximately 7 minutes in the 7-Eleven. You did not attempt to notify them. Your brother returned to the 7-Eleven by bicycle, paid for the petrol, and rode back to the Altona House. You followed in your car.
You and your brother arrived at the Altona House where your sister and her partner were home. Again, you made no attempt to raise the alarm. Your brother packed a bag of clothes, telling you that you would both need to change your clothes, and took a hammer and a chisel. You took these to your car as instructed. About 20 minutes before your brother told you that the 2 of you were leaving, your sister and her partner arrived back at the Altona House. About 10 minutes later the woman who lived in the bungalow at the rear of the property arrived. Once again, you made no attempt to tell them of the situation.
You and your brother left in your car. You drove. He said he wanted to head to Ararat because he was familiar with the area. As you drove, your brother fell asleep. You missed the exit to Ararat on purpose, pretending you had forgotten where to turn, so that your car would pass through a toll point that would record the time and your location. At 7.23 pm, the sound of the e-tag woke your brother. You then drove around the city for about 40 minutes pretending to be lost. Your brother abandoned his plan to go to Ararat for fear the car would run out of petrol. You left the city and entered the M1 freeway at Burke Road, Camberwell, and then continued to travel away from Melbourne.
After driving some time, you got off the freeway. Your brother got out of the car to explore the location for the purposes of disposing of Ms Farrell’s body. Your brother rejected this location because he could hear a person’s voice and a dog when he got out of the car. The 2 of you continued driving west through the township of Rosedale. As instructed by your brother, you stopped your car by the side of the road in the vicinity of Nambrok, and waited with the car lights off and your foot off the brake.
Your brother alighted from the car and grabbed the chisel. He removed Ms Farrell’s body from the boot. You followed his instructions when you handed him the hammer and then drove up the road to see what was around. When you returned around 2 minutes later you could see your brother holding the chisel to Ms Farrell’s face, which he struck with the hammer. You looked away. You started crying, but you could still hear your brother use the hammer to repeatedly strike the chisel to remove Ms Farrell’s upper teeth and entire lower jawbone. He did this in an attempt to conceal Ms Farrell’s identity if her remains were later found.
Your brother returned to the car and took the petrol container. You remained in the car and you watched as your brother poured petrol on Ms Farrell’s body and set it alight. He said he did this to destroy any traces of his DNA[3] and other evidence of his involvement in Ms Farrell’s death. You and your brother stayed watching Ms Farrell’s body burning for approximately 20 minutes. The flames were high. There was concern a bushfire might start, but eventually they subsided. Ms Farrell’s body was still on fire when you both drove away.
[3]Deoxyribonucleic acid.
You drove back towards Altona. At your brother’s insistence, you stopped in Yarragon at public toilets to change clothes. You continued your return drive, but your brother took over driving after you fell asleep at the wheel a couple of times after leaving Yarragon. As you were nearing home, your brother stopped and discarded some empty drink cans that you had both taken from Ms Farrell’s house. You resumed the driving. You made a second stop and remained in the car crying while your brother disposed of a number of items from Ms Farrell’s house. You then drove to the Altona House together.
By the time you got back, it was 6.46 am on Monday. Your brother told you to go inside and get ready for work. Your brother then came to your room and told you that he was going to kill your dad. In the same conversation, he told you to go to work and not tell anyone what had happened. You went to work and remained silent.
While you were at work, Russell Goodes and Ms Farrell’s employer realised that Ms Farrell was missing and reported it to the police. In the meantime, family members at the Altona House had been told Ms Farrell was missing. Later that afternoon, your brother’s girlfriend arrived at the Altona House. Your brother said to his girlfriend that he had done something he could not reverse which was “unforgiveable”. Following this, your brother confirmed to your mother that Ms Farrell was dead. Your sister left the Altona House, walked to nearby shops, called 000 at 6.31 pm and reported what had happened to the police.
Shortly after, the police arrived and began negotiating with your brother before arresting him.
You arrived home by car while the police were there. A police officer spoke to you and you dropped to the ground and started crying. You told the police officer on the spot about what had happened over the weekend.
When you were interviewed you made full admissions as to your behaviour and observations. You also directed the police to the location of Ms Farrell’s body.
C. Nature and gravity of the offence
The prosecution submitted that your offending is a serious example of the offence of assist offender and at least at the mid-range for this type of offence. This was put, in part, on the basis of the nature of the principal offence. Reference was also made to the duration of the assistance, and the acts by which you helped to dispose of the body in order to assist your brother’s attempts to avoid detection.
The offence to which you have pleaded guilty is very serious.[4]
[4]See Landmark v The Queen [2015] VSCA 178, [63] (Weinberg JA).
You materially assisted your brother in what occurred after he killed Ms Farrell. Your assistance extended over a long period of time, and included:
(1)Distracting and lying to Mr Goodes so that your brother could leave Ms Farrell’s house with her body.
(2)Driving your brother in your car to where, ultimately, he wanted to go, including transporting Ms Farrell’s body.
(3)Handing your brother the hammer that he used to remove Ms Farrell’s upper teeth and lower jawbone with a chisel.
(4)Checking if anyone was in the vicinity when your brother was planning to dispose of Ms Farrell’s body.
Significantly, without your assistance your brother may not have been able to dispose of Ms Farrell’s body in the way that he did.
No doubt, when your brother showed you Ms Farrell’s body in the afternoon of 17 February 2019, you were confronted with what must have been a horrifying scene.
It was submitted on your behalf that your offending should be considered in the context of your youth and immaturity, and the extremely stressful and confusing situation in which you found yourself. It was contended you felt ill-equipped to extricate yourself. I accept that the circumstances would have induced a state of shock, confusion, nervousness and distress. Further, the events were preceded by a very late night involving drinking and lack of sleep. This would not have assisted your state of mind or your ability to respond to what was unexpectedly thrust before you.
Furthermore, your initial decision to comply with your brother’s demand for assistance, made shortly after you had found out about Ms Farrell’s violent death and been confronted with Ms Farrell’s body, can properly be described as spontaneous.[5]
[5]See, for example, Director of Public Prosecution v Bacak [2015] VSC 474, [17] (Lasry J).
It was submitted on your behalf, and I accept, that you felt under pressure from your brother, who is your older brother. The prosecution conceded that you may have felt an element of compulsion.[6]
[6]The prosecution expressly acknowledged that it did not contend that there were “no elements of, from [your] point of view, some feeling of compulsion that explains [your] conduct”.
In addition, at the time you commenced assisting, you had just discovered your brother had inexplicably killed Ms Farrell, demonstrating that he was capable of extreme and unpredictable violence. The court has been told that he is a large and physically strong person. As already noted,[7] you felt you could not tell Mr Goodes what had happened, while you and your brother were preparing to leave Ms Farrell’s house, because you were concerned about the safety of Mr Goodes and his son.
[7]At par 12 above.
On 2 occasions, your brother’s requests were accompanied by threatening behaviour, including physical force. He grabbed your dress and pulled you towards him when he told you, “We are getting rid of it”[8] and grabbed your leg after he said, “Don’t you dare” when you drove towards the Ballarat Police Station.[9]
[8]“It” being Ms Farrell’s body.
[9]At least as to the second of these matters, the prosecution acknowledged your brother’s behaviour could be properly understood as threatening.
Further, you had been afraid of your brother in the past. He scared you because he has a history of being unpredictable, unreadable and angry, and hitting things when not knowing how to calm himself down. Your relationship was such that you did not speak to him for a number of years when you were in your early teens.
During the course of your assistance, however, you had clear and substantial opportunities to take an alternate course, as was conceded on your behalf. It is for this reason that you are unable to avail yourself of the defence of duress. You had the opportunity to alert various people, including protective services officers, while you waited at the 7-Eleven without your brother being present for a significant period of time. You have said that you were afraid the protective services officers would not be able to find your brother and that he would come back and hurt you, your mum or your step-dad. Further, once you arrived at the Altona House, there were 3 other adults in addition to your brother present and you did not alert them. When asked why you did not flee when you had the opportunity to do so, you have said you felt unable to because of what you felt your brother would do.
If you had taken these opportunities up to this point, your brother’s defacing and torching of Ms Farrell’s body may have been avoided; and Ms Farrell’s family, who you know well, could have been spared the additional pain and heartache this has caused and continues to cause.
You also had a further opportunity to cease assisting when you were asked to drive up the road, from the site where Ms Farrell’s body was dumped, and check what was around. You could have continued driving away from the scene and there would have been nothing your brother could have done to stop you.
Finally, you had the opportunity to alert someone as to what had happened while you were at work throughout Monday, 18 February 2019.
All of that said, your willingness to assist your brother was not unlimited. You made several attempts to frustrate your brother’s intentions, including: telling your brother you needed to call someone when he first showed you Ms Farrell’s body; driving towards the Ballart Police Station; not taking the correct exit when driving on the highway; then taking your car in a direction to pass through a toll point; and driving around the city for 40 minutes pretending to be lost. Further, it is clear that your brother led the attempt to conceal Ms Farrell’s body. You did not take part in your brother’s acts: you did not help carry Ms Farrell’s body, you did not take part in the acts that mutilated her body and nor did you help set fire to her body.
Ultimately, you did cease assisting your brother when you encountered the police on the evening of 18 February 2019 at the Altona House.
I have had regard to all of these matters, together with all of the relevant circumstances of your offending, when considering the seriousness of the offence and your culpability.
Further, although the gravity of your brother’s conduct is a relevant matter to take into account, your sentence is confined to the conduct that is encompassed by the charge against you.[10]
[10]Director of Public Prosecutions v Vega [2015] VSC 683, [76] (Jane Dixon J), citing R v Connolly [2009] VSC 452, [15] (Kaye J) and R v Kitchin [2001] VSCA 66, [36] (Brooking JA).
D. Impact on victims
Tamara Farrell’s death has had a devastating impact on her family. In giving her victim impact statement in open court, Ms Farrell’s mother, Nellie Farrell, described the unending grief and gut wrenching loss of losing a child. She talked to the empty hole in her soul, her heart and her spirit. Ms Farrell’s mother described the struggle to process the fact that her daughter was killed by someone she had known her whole life and that you, who she also watched grow from the time you were born, had helped. She told the court she had stopped working at her job because she could no longer focus.
She also explained the difficulty of telling her father, Ms Farrell’s grandfather, about what had happened, and how she felt it contributed to his death shortly after. She spoke of the impact Ms Farrell’s death has had on her other daughter and 2 sons. She told the court about her daughter Tamara, how she was an independent girl with an adventurous soul who was not afraid to speak her mind and loved her job as a coach driver for Ballarat Coaches.
The victim impact statement made clear that the destruction of Ms Farrell’s body, which occurred while you were assisting, added to the impact felt by Ms Farrell’s family. Nellie Farrell described that her daughter’s body was mutilated and burnt; how she desperately wanted to see her face 1 more time; and to touch her 1 last time, but that she was denied that opportunity. She described that the impact that you caused was made worse because you were someone the family had known since you were born; and despite this, you were involved in the disposal of Ms Farrell’s body. You have known Ms Farrell and her family for your entire life.
The impact on the victims, as bravely conveyed by Nellie Farrell, has been taken into account.
E. Comparative cases
The court was referred to R v Bacak.[11] There are many similarities between that case and the present case.[12] The sentence imposed was a community correction order of 12 months’ duration.[13]
[11][2015] VSC 474 (Lasry J).
[12]In that case, like the present case, the accused assisted the principal offender to dispose of the deceased’s body and destroy it by burning: ibid [3], [16]. The accused was not present when the killing occurred: ibid [7]. The principal offender, a close friend of the accused, came to his house and asked him to help get rid of a body: ibid, [10], [16]. He initially refused but then made a “spontaneous” decision to assist: ibid, [10], [17]. The accused helped the principal offender place the body of the deceased into the deceased’s car and then the principal offender and the accused together drove to a location where the accused and the principal offender destroyed the deceased’s body by burning the deceased’s car with the body inside: ibid, [11], [12]. The accused made an initial false statement to police and only revealed the truth in a police interview 3 months after the offence: ibid, [14]. The accused had some criminal history; theft and drug offences over 25 years prior to this offence and 2 traffic offences more recently: ibid, [23]. The accused pleaded guilty: ibid, [35].
[13]Ibid, [36].
The prosecution submitted that your offending was more serious than R v Bacak largely because of your relationship with Ms Farrell, which, it was submitted, meant there was an element of breach of trust in the present case.[14]
[14]The accused also knew the deceased in R v Bacak, although the ruling does not identify how closely: ibid, [5].
However, there are other factors that suggest the offending in R v Bacak was more serious than in the present case. In R v Bacak, the accused physically assisted the principal offender to place the body in the car, made an initial false statement to police, and did not reveal the truth for a much longer period than in the present case.[15] Further, the accused was much older when the offending occurred, being in his mid-40s,[16] and had some criminal history.[17]
[15]Ibid, [12], [14].
[16]Ibid, [18].
[17]Ibid, [23].
The prosecution also referred the court to R v Considine.[18] In that case, the accused was present when the deceased was killed by the principal offender, her partner.[19] Her conduct was assessed as being at the mid-range of seriousness for offending of this kind.[20] The sentence imposed was a period of imprisonment of 1 year and ten months, being time already served.[21]
[18][2019] VSC 386 (Champion J).
[19]The accused, the principal offender and the deceased engaged in sexual activity before the principal offender became jealous and strangled the deceased: ibid, [9], [10]. The accused assisted the principal offender to put the deceased’s body into a wheelie bin, which was then wheeled a few streets away by the principal offender, while the accused cleaned up the deceased’s blood: ibid, [11], [28]. The accused lied to police in her first police interview, before revealing what occurred a number of days after the offending: ibid [24]-[27], [84]. The accused was initially charged with murder and offered to plead guilty to assist offender at an early stage: ibid, [35], [94]. The accused had a minor criminal history: ibid, [57]. The court considered the accused’s experience of domestic violence in her relationship with the principal offender, the accused’s shock and fear at witnessing the deceased being killed and the accused’s offer to give evidence against the principal offender: ibid, [90].
[20]Ibid, [85].
[21]Ibid, [118], [120].
The prosecution submitted that the assistance in R v Considine was similar to the present case, and in some respects of less significance in part because if its shorter duration. However, it is also in some respects more significant than the assistance provided in the present case because the accused physically assisted the principal offender to place the deceased into the bin, helped lift the bin with the body in it, cleaned some of the blood from the scene, and lied to police.[22]
[22]A number of other cases were also drawn to the court’s attention concerning s 325 of the Crimes Act. Having reviewed these other cases, the 2 cases discussed above most closely resembled the circumstances of this case.
F. Personal circumstances
You grew up in Melbourne. You reported that when you were young your father drank most nights and was verbally and physically abusive towards your mother and also aggressive towards the children. Your parents have been separated for a considerable amount of time.
You live with your mother and her partner, and your sister and her partner. Before the offending you also lived with your brother, the co-accused.
You have a solid work history and have worked in nursing homes since you left school in year 11. You were studying a bachelor of business studies online when the offending occurred. You have been unemployed since the offence.
You were only 19 years old when the offence occurred. You have strong family support and no previous criminal history.
A number of your colleagues, family and friends provided references as to your good character. I will take a moment to refer only to some of the details.
Your mother described how proud she was of the little career you were building before your offence, and how your love for people, especially the elderly, made you endearing to everyone. She also spoke of the relationship you had with Tamara, the times you spent together and the special bond you had.
One of your colleagues, who worked with you at different nursing homes for over 5 years, described you as hardworking, enthusiastic, giving to the elderly, and a kind and decent person. She said that the she felt the offence went against everything she believes you stand for.
Another colleague described how you were extremely remorseful, but had remained resilient and loving in the adversity you faced subsequent to your offending.
So far as your career is concerned, reference was made to your inability to obtain employment in your chosen profession (working in aged-people’s homes) because you have committed this offence.
G. Prospects of rehabilitation and related factors
I accept that your prospects of rehabilitation are good, including in light of your personal circumstances described above, your conduct subsequent to the offence and your genuine remorse.
You made full admissions as to your observations and actions in your first interview with the police and provided a sworn statement in accordance with that interview. You fully cooperated with the police, including by directing the police to the location of Ms Farrell’s remains, and have given an undertaking to give evidence at any trial of your brother. Further, you pleaded guilty at an early stage. Since being charged, you have complied with the conditions of your bail.
You have expressed remorse for your actions and have recognised that, looking back, you could have done more. You have also expressed sadness, grief, shame and intense emotional suffering regarding the impact of Ms Farrell’s death on her family.
You feel your own grief in regards to Ms Farrell’s death. You have reported that you have difficulty sleeping because you are haunted by a recurring nightmare of your offence, that repeats over and over until you awake; and that you experience intrusive memories of the offence, which are triggered by certain activities, including driving. Your psychological report indicates you are suffering from severe depression, anxiety and stress and there is evidence for a diagnosis of post-traumatic stress disorder.
Your admissions to the police and your guilty plea are also indicative of remorse, as was your demeanour during the plea hearing. There was no suggestion that your remorse is anything but genuine.
Your counsel relied upon R v Mills in submitting that rehabilitation should be the primary objective in sentencing young first offenders.[23] In R v Mills, the Court of Appeal accepted the proposition that punishment imposed on young offenders may lead to further offending.[24] You are a “young offender” for the purposes of the Sentencing Act 1991 (Vic).[25] In sentencing you, I also acknowledge the “mitigatory effect of [your] youth”.[26]
[23][1998] 4 VR 235, 241.4 (Batt JA, with whom Phillips CJ and Charles JA agreed).
[24]Ibid.
[25]Sentencing Act 1991 (Vic), s 3(1).
[26]Director of Public Prosecutions v Anderson (2013) 228 A Crim R 128, 142 [56] (Maxwell P, Neave JA and Kaye AJA). See also R v Mills [1998] 4 VR 235, 241.5.
Your conduct subsequent to the offence and your lack of criminal history mean that the need for protection of the community and specific deterrence are not significant in this case, despite the seriousness of the offence.
H. Other factors
In relation to COVID-19, the defence submitted that any period of imprisonment is potentially more onerous because of the effect of this virus. The prosecution conceded that a prisoner’s concern for their own safety could be a consideration. The Court of Appeal has acknowledged that the current situation is causing additional stress and concern for prisoners and their families.[27] The extent to which this is to be taken into account, if at all, is a matter to be resolved on the facts of the particular case.[28]
[27]Brown (aka Davis) v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA).
[28]Ibid.
The current visitation restrictions imposed by Corrections Victoria in the prison system mean that if you were given a custodial sentence, you would have no, or only very restricted, physical visits from your family for the foreseeable future.[29] The prosecution acknowledged that this restriction was a relevant consideration in light of the fact that you are young, have never before been incarcerated and you have a family that would otherwise visit you.
[29]Corrections Victoria, “Our response to coronavirus (COVID-19)” (6 April 2020) < type="1">
At present, it is reported that the prison system remains free of COVID-19. Further, the infection rate in the community has generally trended downwards in more recent times and appears to be maintaining relatively low levels. Accordingly, it is not possible to predict with any certainty whether the virus will ever enter the Victorian prison system. However, it is acknowledged that while the risk of infection remains and related restrictions are in place, the consequences for prisoners are significant.
It was submitted on your behalf that you have spent something in the order of nearly 1 and a half years on bail and that there has been a degree of curtailing of one’s life in that regard. This is undoubtedly so.
In Director of Public Prosecutions v Vega, Jane Dixon J listed circumstances in which a lesser sentence has been imposed, including when:[30]
[30][2015] VSC 683, [86]. This case involved a plea of guilty to the charge of assist offender, with the principal offender being charged with murder.
(a) the offence is as at the lesser range of offending;
(b) the accused has pleaded guilty;
(c) the accused has shown remorse;
(d)the accused has co-operated with police or given an undertaking to give evidence for the Crown;
(e)in assisting the police or giving evidence for the Crown the accused and his, or her, family would be at greater risk of harm;
(f) the accused has a lack of significant criminal history; and
(g) the accused has reasonable prospects of rehabilitation.
You have pleaded guilty, shown remorse, fully cooperated with police, have no criminal history and have at least reasonable prospects of rehabilitation.
The evidence you have provided to the authorities significantly fills in gaps in the timeline of events. The prosecution has accepted that your assistance to police was important. In relation to the greater risk of harm of giving evidence for the Crown, the prosecution submitted that there has been no element of risk from your brother and that this is not the type of case in which this issue would be a factor. However, it seems the real possibility of some additional risk resulting from giving evidence for the Crown, especially if a custodial sentence were imposed, cannot be excluded.
In relation to the factors listed above, the most significant in this case is the gravity of the offence, in light of the seriousness of the principal offence and the level of assistance provided. As referred to above,[31] the offence you have pleaded guilty to is very serious; it cannot be said that your offence is at the lesser range of offending. I have given consideration to the nature and gravity of your offence, as well as just punishment, general deterrence and denunciation.
[31]See par 30 above.
Your counsel submitted a community correction order was the appropriate sentence. A community correction order is intrinsically punitive.[32] The Court of Appeal has stated that a community correction order may be suitable even in the case of relatively serious offences, which might previously have attracted a medium term of imprisonment.[33] As already noted, previously this court has imposed a community correction order for the offence of assist offender.[34] Further, a community correction order may also have the effect of improving prospects of rehabilitation.[35]
[32]Boulton v The Queen (2014) 46 VR 308, 331-332 [91]-[97], 337 [124] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[33]Ibid, 338 [131].
[34]For example, R v Bacak [2015] VSC 474 (Lasry J): see pars 52-54 above.
[35]Boulton v The Queen (2014) 46 VR 308, 338 [131].
You have undertaken an assessment for a pre-sentence report to enable this court to gauge your suitability for a community correction order.[36] A report from the Department of Justice and Community Safety dated 24 April 2020 (“Pre-Sentence Report”) assessed you as suitable for a community correction order.
[36]In accordance with s 8A(2) of the Sentencing Act 1991 (Vic). The additional purposes of getting a pre-sentence report, as set out in s 8A(2) of the Sentencing Act, are to establish that any necessary facilities exist and gain advice concerning the most appropriate condition(s) to be attached to the order. See also Boulton v The Queen (2014) 46 VR 308, 328 [77]-[79].
Sentence
In all the circumstances of this case, weighing the factors as best I am able, and with particular reference to your prior good character, obvious remorse, cooperation with the police, your age, your early guilty plea and your undertaking to give evidence if called upon to do so, it is appropriate that a community correction order be imposed.[37]
[37]While the prosecution submitted a custodial sentence was appropriate, it was also accepted that it could not be submitted that a community correction order was outside the range.
In considering the recommendations in your Pre-Sentence Report, it is appropriate the community correction order last for a period of 12 months. In addition to the mandatory terms imposed by s 45(1) of the Sentencing Act, the order shall include the following conditions:
(1) You be required to perform 200 hours of unpaid community work.[38]
(2)You be required as directed to undergo assessment and treatment, including testing, for alcohol abuse or dependency.[39]
(3)A supervision condition be included.[40] The supervision condition would require you to attend Community Correctional Services at 87 Synnot St, Werribee, from time to time as directed.[41]
(4)All hours satisfactorily undertaken for treatment and rehabilitation (in accordance with the condition pursuant to section 48D) are to be counted as hours of unpaid community work (for the purposes of the condition pursuant to section 48C).[42]
(5)The community correction order is to commence on Monday, 11 May 2020.[43]
[38]Pursuant to s 48C.
[39]Pursuant to s 48D.
[40]Pursuant to s 48E.
[41]You are required to report to that office within 2 working days of this order being imposed.
[42]Pursuant to s 48CA. The prosecution submitted no such counting should occur as it would reduce the punitive character of the order. Your counsel submitted the hours spent in rehabilitation services is likely to be minimal as the evidence does not suggest you have serious issues with alcohol. Consistent with the recommendation in the Pre-Sentence Report, it is appropriate that the hours be counted as it provides an incentive for you to participate in any treatment and rehabilitation required. Further, this counting does not undermine the punitive nature of the order.
[43]See s 38(2).
Subject to you consenting to this order in the terms referred to above,[44] for the offence of assist offender pursuant to s 325 of the Crimes Act, I sentence you to a community correction order in those terms.
[44]See s 37(c). According to the Pre-Sentence Report, you have already agreed to comply with conditions substantially in the terms set out above.
To explain to you the effect of not complying with your community correction order, should you contravene any of the above conditions, or those prescribed under s 45(1) of the Sentencing Act, without reasonable excuse, this is an offence punishable by up to 3 months’ imprisonment.[45] Further, if there were a contravention, it is within the court’s power to cancel the order and resentence you for the original offence of assist offender.[46]
[45]See s 83AD.
[46]See s 83AS(1)(c).
Pursuant to s 5(2AB) of the Sentencing Act, I declare that I am imposing a less severe sentence than I otherwise would have imposed because of the undertaking you have given to assist the Crown, and I direct that the undertaking be noted in the records of the court.
As was explained to you during the plea hearing, if you do not comply with the undertaking to give evidence when called upon to do so, it may result in you being brought back to this court with the potential consequence that a different and harsher sentence will be imposed on you.
Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, the sentence I would have imposed on you would have been a sentence of 2 years and 6 months’ imprisonment, with a non-parole period of 1 year and 9 months.
Finally, I direct that a conviction be recorded with respect to the offence to which you have pleaded guilty.[47]
[47]Your counsel accepted that, in the circumstances of the case, it was appropriate that a conviction be recorded.
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