DPP v Treasure
[2020] VSC 402
•30 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0316
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DANIEL JOHN TREASURE | Accused |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2020 |
DATE OF SENTENCE: | 30 June 2020 |
CASE MAY BE CITED AS: | DPP v Treasure |
MEDIUM NEUTRAL CITATION: | [2020] VSC 402 |
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CRIMINAL LAW – Sentence – Murder – Pursuant to s 3A Crimes Act 1958 – Accused and co-offender lured victim to location intending armed robbery of him – Both offenders armed with knives – Victim and girlfriend both attacked and stabbed – Not clear which offender responsible for fatal wound – Plea of guilty – Prior convictions – Standard sentence scheme – Sentence of 20 years’ imprisonment with non-parole period of 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms C Foot | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms S Keating with Mr M Radzaj | Slades & Parsons Solicitors |
HIS HONOUR:
John Treasure, on 24 October 2019 before Justice Taylor, you pleaded guilty to the murder of Felk Repia. The offending may be summarised as follows. The plea to murder is on the basis that Mr Repia was stabbed during a struggle outside the entry of a residential property at 29 Wilson Street, Berwick, during the course of an armed robbery.
Mr Repia was killed by an act of violence done in the course or furtherance of a crime, the elements of which included violence. You and your co-accused, Matthew William Coghlan (‘Coghlan’), were intending to commit an armed robbery and you were each in possession of a knife.
The two of you intended to rob drugs from Mr Repia. The Wilson Street address is a communal housing complex at which neither Mr Repia or either of you resided. This location was chosen by you as the meeting place with Mr Repia to rob him.
Messages were exchanged between you and Mr Repia in the lead up to the offence that showed that you arranged to meet and you believed that Mr Repia would be in the possession of drugs. You held yourself out to be a woman named ‘Nikki’ in the messages to Mr Repia.
Closed Circuit Television (‘CCTV’) cameras are located at the residence. There was an infrared camera placed externally to the front of the building covering the driveway and a second internal camera capturing the front door. The prosecution had intended to play the CCTV footage at the plea but it was not possible to do so. I viewed the footage a number of times and in summary it shows the following:
(a) Mr Repia and Victoria Meakins (‘Meakins’) arriving in the car park and walking to the front door of the residence.
(b) Mr Repia has a computer tablet in his hand.
(c) You arriving in the driveway with Coghlan following behind and walking to the front door.
(d) Coghlan is seen to be walking with a sharp object in his hand.
(e) After meeting at the front door a physical altercation takes place.
(f) The fight continues to the right of screen.
(g) A resident, Kiley Jenson (‘Jenson’), entering the foyer and viewing part of the fight.
(h) Jenson tapping on the glass to try and get your attention and eventually opening the door.
(i) Meakins’ handbag getting thrown to the ground in the driveway.
(j) Coghlan checking the contents of Meakins’ handbag with a knife in hand and throwing the bag before both you and Coghlan leave on foot down the driveway.
(k) Mr Repia attempting to stand and collapsing to the ground.
To look at the offending in detail, between 23 April 2018 and 25 April 2018 phone records show texts between you and Mr Repia. Mr Repia wrote a text after 10 am on 23 April 2018 stating, ‘Morning’. On 24 April 2018 Mr Repia again wrote to you, ‘Are you chasing any today?’ You replied, ‘Nah, I’m all good, babe’.[1]
[1]Revised Summary of Prosecution Opening dated 15 January 2020, [11] (Opening).
The next day on 25 April 2018, Mr Repia sent a text to you stating, ‘have nice half balls for sale’.
Between 25 April and 30 April 2018, arrangements were made between you and Mr Repia to meet up to exchange drugs. On the night of the murder, 30 April 2018, at 7:47 pm, you sent a message from your number 0411 438 385 via an unknown messaging service which read:
Where I live is a complex for domestic violence babe so I’ll get u to park out the front and come to the front doors. There is no staff so it’s all good and I’ll buzz you in when you get here hun …’.[2]
[2]Opening, [13].
The prosecution say that this message was sent by you to Mr Repia.
Mr Repia enquired of Meakins, with whom he was then in an intimate relationship, if she was willing to drop him off at an address in Berwick. He stated that he wanted to go into Berwick to hook up with ‘Nikki’ and that he would be about 30 to 45 minutes. Meakins agreed. Mr Repia told Meakins that she could drive his black Holden Commodore Thunder utility which was nicknamed Thunderella. As part of the deal it was agreed that Meakins could use one of two electronic tablets owned by Mr Repia while she waited for him in the car. Mr Repia habitually carried those devices with him everywhere he went.
At approximately 7.30 pm, Meakins reminded Mr Repia that he needed to sign on for bail and at 8.41 pm Mr Repia entered the Narre Warren police station and reported. At 8.50 pm, he left the police station and walked out to the car park and got into the utility and they returned back to their house.
On the same evening, Coghlan and his domestic partner, Briley Oates (‘Oates’), caught a train to Berwick train station and walked to 77 Melville Park Drive, Berwick, which was your then residential address. The three of you then went to a local Woolworths store arriving at 8.20 pm where Coghlan took a knife from the shelf, placed it in his back pocket and paid for a greeting card at the self-serve checkout. Oates went to use the toilet while you waited outside. Coghlan and you then left the area without Oates.
At approximately 9:40 pm, Mr Repia told Meakins that he was ready to go and after a short time, they left their home. Meakins drove Mr Repia’s utility. Mr Repia told Meakins that the address they were going to was Wilson Street, Berwick. Meakins noted that Mr Repia had both tablet devices with him. Whilst Meakins was driving and following the GPS directions, Mr Repia was using one of his electronic tablets. Once in Wilson Street, Meakins drove up and down the street for approximately 20 minutes as there was confusion about the correct address. Meakins was relying on Mr Repia to provide her with the information about which house that he was to go to.
Mr Repia was receiving sporadic messages from the woman he was supposed to be meeting. Eventually Meakins drove into the driveway at No 29 and reversed the vehicle into a car space next to a row of residential bins. Mr Repia got out of the vehicle and began walking down towards the front door of the premises. He was bumping into vehicles and objects because of his night blindness. Accordingly, Meakins exited the vehicle and assisted Mr Repia by guiding him. Meakins then guided Mr Repia down the sloping driveway and around a garden bed at the front doors. Mr Repia was holding one of his tablet devices as he was going down the driveway.
At 10:39 pm, Meakins was standing at the front door with Mr Repia and saw you and Coghlan walking down the driveway from the street. You were walking approximately 2 metres in front of Coghlan. You immediately confronted Meakins. You began to shout, ‘Come on, give it to me’.[3] Meakins immediately recognised you as she had met you on a previous occasion. Meakins then retrieved a box cutter from within her handbag.
[3]Opening, [21].
Coghlan pulled a knife from inside the front pocket of his jumper and immediately confronted Mr Repia. Both of you confronted Mr Repia and Meakins on arrival. Coghlan was armed with a knife. You were in possession of a knife.
During the initial confrontation, you punched Meakins in the face and she fell down. Meakins saw that Mr Repia was wrestling with Coghlan. You ran over and stabbed Mr Repia in the right shoulder. Meakins went over to you and tried to stab you around the ribs, apparently unsuccessfully. At some stage in the confrontation Mr Repia received multiple stab wounds to his upper body and chest area. A single seven centimetre penetrating stab wound to his right chest caused his death. There were also stab wounds to his right and left shoulders and his right hip area.
During the incident Meakins’ handbag was thrown into the car park and as Coghlan was walking down the driveway, he stopped, picked up the handbag, rummaged through it before eventually leaving it behind.
At 10.48 pm, police and paramedics arrived at the scene and immediately began CPR on Mr Repia. Mr Repia was pronounced dead at 11.06 pm.
After the attack, the two of you left the area and walked down Langmore Lane. There, you lifted a Telstra pit lid located on the nature strip and placed a mobile phone inside the pit. This was captured on CCTV and the phone was later identified as belonging to Meakins.
You made your way to 77 Melville Park Drive, Berwick, which is your family home, and you and Coghlan discarded your clothing.
At the time the murder occurred at the Wilson Street address, Oates is seen on CCTV footage at the Berwick Station. At 10.38 pm, Oates appeared to receive a phone call and left the station shortly afterwards, returning to the Melville Park Drive address where the two of you were.
After returning to 77 Melville Park Drive, Berwick, a taxi was ordered at 11.10 pm using the landline from that address. The taxi was ordered in the name of John and the mobile phone number provided was 0411 430 385, which was registered to you. A taxi arrived shortly after the call was made and you, Coghlan and Oates all got into the vehicle.
A short time later, the taxi was intercepted by police and the three of you were arrested. You were interviewed and made no comment.
A Wiltshire knife with black handle was located near 46 Wilson Street, Berwick. No blood was detected on the blade of the knife, however DNA was obtained from the handle. It was found to be a 100 billion times more likely if you were a contributor to that DNA profile.
Part of the packaging for a peeling knife was located at 46 Wilson Street, Berwick. This packaging is consistent with the item believed to have been stolen by Coghlan from Woolworths earlier in the evening.
A ‘Troop’ brand bag was located in the rear of the taxi when you and Coghlan were arrested. It contained a folding knife which appeared to have a bloodied handle. There was no blood detected on the blade. A DNA profile obtained from the handle of the folding knife was found to be a 100 billion times more likely if Coghlan was the contributor.
A hooded ‘Clothing & Co’ jumper was located in the rear of the taxi and was found to have several different bloodstains. The stain on the upper left front was analysed and a mixed DNA profile was found. This DNA profile is a 100 billion times more likely if both Meakins and Coghlan were contributors. The stain on the outside of the upper right sleeve was found to be bloodstaining in the form of transfer staining. The shape of the transfer stain indicated that it was possibly from a knife blade. The DNA profile obtained from this stain was found to contain up to three contributors. It was found that it was equally likely that Mr Repia was or was not a contributor and that it was a 100 billion times more likely if Coghlan was a contributor.
On 1 May 2018, at 10.10 am, Mr Repia’s body was examined by Dr Linda Iles, pathologist. At the time of the post mortem, Dr Iles found the following injuries:
(a) Stab wound to the right chest wall extending for a depth of approximately 7 cms passing through the right fifth costal cartilage pericardium sac and penetrating the right ventricle of the heart.
(b) Stab wound to the right shoulder without associated major avascular injury.
(c) Stab wound to the left shoulder without associated major avascular injury.
(d) Superficial stab wound to the right hip.
(e) Incised wounds to the nose, right side of the face, right ear and right jawline.
(f) Remote contusional or injury to the right temporal lobe.
(g) Superficial incised wound to the palmar aspect of the right index finger.[4]
The cause of death was determined to be the stab wound to the chest.
[4]Opening [35].
The prosecution case against you is that you were acting pursuant to an agreement to commit an armed robbery on Mr Repia during the course of which Mr Repia was killed. The agreement was evidenced by the following:
· The messages in the week prior to the murder when Mr Repia had a discussion with you about meeting up to provide you with drugs.
· Both you and Coghlan were together in the hours leading up to the offences as seen in the CCTV footage at the supermarket.
· Coghlan stole the knife from the supermarket while you were present outside.
· Both of you walked up the driveway together and upon seeing Meakins and Mr Repia, you immediately made demands and assaulted Mr Repia.
· Both of you being in possession of knives demonstrates an awareness that they would be used in the course of stealing drugs and is led by the prosecution to prove an intent to commit an armed robbery upon Mr Repia.
· CCTV of Coghlan checking Meakins’ bag which has been thrown in the driveway prior to leaving the area with you.
· That both of you left the scene together and returned to 77 Melville Park Drive, Berwick.
· The dumping of Meakins’ mobile phone in a nearby Telstra pit.
· Both of you getting into a taxi to leave 77 Melville Park Drive, Berwick, before being arrested in that vehicle.
It is the prosecution case that these aspects of the conduct of you and Coghlan show how you were working together to assault and stab Mr Repia in order to obtain drugs and demonstrate that an agreement was in force at the time of the killing and done in the course or furtherance of the offence of armed robbery.
Objection was taken on your behalf to that passage if it be intended to show there was an agreement before arriving at the scene that knives would be used to assault and stab Mr Repia. I have not proceeded on that basis. I have proceeded on the basis that no later than the time you, yourself, used a knife in this enterprise there was then on foot an agreement by conduct that knives would be used.
You have pleaded guilty to the charge of constructive murder pursuant to s 3A of the Crimes Act1958. The plea was entered during the pre-trial hearing process. As I have already indicated you were arraigned and pleaded guilty on 24 October 2019.
On the hearing of your plea I received the following victim impact statements:
· Phillip Boult-Daniel Hans Repia, brother of Mr Repia;
· Jacqueline Ann Manners, aunt of Mr Repia;
· Sidney Walters, stepfather of Mr Repia;
· Sativa Repia, daughter of Mr Repia; and
· Donna Walters, mother of Mr Repia.
That yet again demonstrates the consequences that flow from conduct of this kind.
Such material is particularly poignant in circumstances where the death which has occurred is completely unnecessary as is this case and for no good reason. I have taken the victim impact material into account insofar as the law allows me to do so.
It was submitted on your behalf that I should be satisfied that you did not inflict the fatal wound, and if I was so satisfied, that would be a matter in mitigation. It is no part of the prosecution case that you did inflict the fatal wound and for these purposes I am obliged to proceed, and do proceed, on the basis that you did not inflict that wound. Although I did say on the plea, although expressing some reservation about it, that I thought it could be in mitigation, I am not satisfied that it is so.
The whole notion of joint criminal liability gives to each involved in such an enterprise equal criminal liability. It is not a question that either of you might have fatally stabbed Mr Repia but the fact that one of you did.
Whether or not proof against a particular accused in the case such as this that he or she was the stabber would be a matter of aggravation is moot. This case is put on the basis of equal criminal liability. Justice Tinney, who sentenced your co-accused when considering whether Coghlan had shown he was not the stabber said:
For completeness, I point out that the prosecutor maintained that it would not make any difference what conclusion I reached on this particular issue. In the circumstances of this case, that is probably correct. You and Treasure attended at the location of the crime intending to carry out an armed robbery upon Mr Repia. Both of you were armed with knives. Pursuant to the agreement between you, you jointly attacked Mr Repia. He sustained a fatal stab wound inflicted by one or other of you. Which one of you it was who inflicted the wound is of limited importance in the assessment of your criminality.[5]
[5]R v Coghlan [2019] VSC 543, [57].
Although I might have said “little or no importance”, rather than “of limited importance”, I agree with what his Honour said. If, however, I am wrong in that analysis, I am not satisfied on the available evidence that it can be shown that you did not deliver the fatal blow. As noted above, I have reviewed the CCTV material a number of times and have read the evidence of Meakins.
I reject the submissions that Meakins could have delivered the fatal blow. That submission goes close to traversing the plea. I would not reject the possibility that she might have accidentally caused one of the other injuries to Mr Repia, but that she caused the seven centimetre fatal wound with a box cutter is on the material before me not open.
It was put that because the box cutter was not recovered then it might have been some other lethal weapon. That is not the evidence in the case. The evidence in the case is that Meakins had a box cutter. She was never cross-examined otherwise. We simply cannot now retake up such issues and deal with them in a different way.
That of course is not the end of that part of the analysis. It was further submitted by Ms Keating and Mr Radzaj, who appeared for you, that I should regard your role in the offence as less than that of your co-accused. They put forward a quite detailed analysis of the evidence which it would be said would lead to that conclusion.
I am not prepared to accept that analysis as having been capable of demonstrating on the balance of probabilities that your role was lesser. The major difficulty however is that that analysis has scant regard to the principles of joint criminal responsibility with which I have already dealt, that it is not possible in cases of this kind to disaggregate offending in the way that is sought to be done. It is simply not open.
It seems to me the analysis in any event failed to have regard to the fact that on the evidence you were the organiser of the armed robbery which had some detailed planning attached to it. You said you were female. That proposition presumably would be designed to lull your victim in a false sense of security. You chose the place of the meeting, premises well disconnected from you, and about which you seemed to have some reasonable knowledge, including the absence of any security guards.
The purpose of the escapade was to rob and you were armed and knew that your co-accused was armed. I am prepared to infer that you knew that he had stolen the knife. The fact that it was stolen has no consequences but it is part of the acts of preparation.
You were a willing party to the confrontation and shouted at Meakins, ‘Come on, give it to me’, and shortly afterwards you punched Ms Meakins who was interfering with your armed robbery. You stabbed Mr Repia although without severe consequences showing that you were prepared in the enterprise to use a knife. It is no answer to that conduct to say that it was in pursuit of the defence of Coghlan. It had not been an occasion of the defence of either of you.
This is a case of an armed robbery gone wrong. You appear to be the initiator but I will not distinguish you in that way in terms of penalty. I will generally treat the roles as played by the two of you as being equal and if not exactly equal, having equal legal consequences. I accept that Coghlan produced his knife first but I do not regard that as being particularly significant since it must have always been well-within the contemplation of both of you that knives would be used to threaten Mr Repia. Then that by your own act of stabbing Mr Repia, you showed your preparedness to use the knife and that act was an act which was of itself in furtherance of the armed robbery.
If this was a case of intentional murder, it would be a serious example of that crime. The authorities particularly Perry v R,[6] make it clear that there is no bright line between statutory murder and intentional murder. The cases are to be considered on their merit.
[6][2016] VSCA 152.
It seems to me that you and Coghlan did not intend death or really serious injury. Armed robberies of this kind are inherently dangerous. This was not a case of the incidental use of weapons but a case where the use of weapons was an integral part of the enterprise.
I have looked at the way in which Tinney J assessed the seriousness of the case and I agree generally with his analysis. As I have already said, I do not accept that your case should be regarded differently and I accept that your offending is in the mid-range and your moral culpability is moderate to high.
You are now 35 years of age and have one son who you love and with whom you want to have a positive relationship and make positive influence on in the future. You had been in a relationship with his mother between 2003 and 2015 and you stay in contact with her and that is the most significant relationship in which you have been engaged in your adult life.
Your education was difficult. You had integration aids to assist you in both primary and secondary school but, in any event, it culminated in your being expelled in Year 11 for violent behaviour.
You had difficulties in your home life suffering from physical abuse and you had been sexually abused in your youth but not by a member of your direct family. You left home when you were 17. You had various difficult kinds of housing including spending some time on the streets but you now have the support of your mother, your stepfather and your sister and you remain in contact with your father.
You have worked sporadically in labouring jobs mostly casual including painting. At the time of your arrest, you were on Newstart Allowance but because of your drug problem and your inability to meet the requirements of that allowance, it was not always available to you. It strikes me that you have not done much work over the whole of your adult life and that appears to be what you said to Ms Jane Lofthouse, Clinical Neuropsychologist, about it.
While in prison, you had been working in the kitchen but more recently at the time of Ms Lofthouse’s report, you were working in the welding factory two or three days a week which shows your preparedness to be involved in useful activities while you are in prison.
I accept that you are remorseful and that you genuinely regret Mr Repia’s death. You have pleaded guilty and I take into account both your plea and the fact of your remorse together with your letter of apology that I received on your plea.
I accept that because of the COVID-19 pandemic, your present circumstances in prison are more difficult than would otherwise be the case and I have taken that into account.
You have a number of prior convictions commencing in 2003 when you were 18 and have served several relatively short terms of imprisonment in the past.
Although your history is marked with violent offending, none of the allegations of your offending are particularly serious. You have had many chances to reform by way of Community Corrections Orders, most, if not all of which, you have breached and you have also been given suspended sentences in the hope of giving you a chance which you also breached. I regard your criminal history as being persistent.
You were on two Community Corrections Orders at the time of offending which had been imposed at the Frankston Magistrates’ Court on 14 July 2017. One of those orders was a result of a re-sentencing, having breached an earlier order. Apart from the need to reflect the effect that they have in relation to your prospects for rehabilitation, they are not particularly relevant to this sentencing exercise.
There can be little or no doubt that your life has been plighted by the excessive use of alcohol and other substances. I received two reports dated 23 September 2018 and 28 January 2020 respectively, prepared by Ms Lofthouse. The first of those reports had been prepared for an appeal which you took after being sentenced to 12 months’ imprisonment relating to the breaches of the two orders referred to above.
In relation to this sentence, it should be observed that Ms Lofthouse made the following significant findings. You suffer from a significant mental impairment expressed by Ms Lofthouse in her report in the following terms. Having referred to a number of tests that you had done, she said:
The significance of Mr Treasure’s impairment was expressed in his percentile rank which places him better than or equal to less than one percent of like aged individuals and is indicative of significant global intellectual impairment.[7]
[7]Report of Ms Jane Lofthouse, Clinical Neuropsychologist, dated 28 January 2020, 14.
Later, she went on to say:
On testing, Mr Treasure demonstrates a pattern of significant global intellectual impairment including a moderate level of executive dysfunction. This will have a negative effect upon Mr Treasure's capacity for abstract reasoning which is required to make reasoned informed and flexible decisions. Executive dysfunction will also impinge on Mr Treasure's ability to have control and/or insight into his behaviour. In light of the above Mr Treasure will be reliant on concrete thinking leading to him making poorly considered decisions based on over-learnt and often inappropriate and impulsive responses. Mr Treasure's drug and alcohol use will have further impinged on his intellectual deficits and ability to make reasoned and informed decisions and control his behaviour. It is my opinion that Mr Treasure's intellectual impairment and drug and alcohol use would have played a significant part (but not fully account for) the criminal offending that led to his current charges.[8]
[8]Ibid 16.
She also found that you suffered from significant depression and she noted that your depressive state had deteriorated between the two examinations of you, that is between September 2018 and January 2020. As a result of that, you will find imprisonment more burdensome than similar prisoners would find any sentence that you have to serve.
I was urged to have regard to the principles set out in R v Verdins[9]. They are:
[9](2007) VR 16 269.
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[10]
[10]Ibid 276 [32].
In relation to those, Principle 5 of those principles is that the existence of a condition at the time of sentencing or the foreseeable recurrence could mean that a given sentence would weigh more heavily on the offender than it would on a person of normal health. It seems clear from the evidence of Ms Lofthouse that that principle should be applied to you and I do apply it.
What is more complicated however is the way in which I would have regard to Principles 1, 3 and 4 of Verdins which are set out above.
When an analysis is carried out of your conduct in relation to this offending, it seems to me very difficult, if not impossible, to see how that fits in with the findings made by Ms Lofthouse, set out in [63].
You have shown in the offending itself the ability to organise yourself in a way which led to a plan being made to commit the armed robbery in relation to which there was I would not go so far as to say sophistication, but there was some matters showing a degree of organisation, including providing a false identity which is assisted by choosing to communicate by SMS. You can be a woman if you do not have to speak.
You chose the place where these events would occur and you chose that as being distant from you. There is a degree of organisation about it and your experience with the legal justice system seems to me to demonstrate that you had quite reasonable understanding of what the consequences of such offending might be. Although I accept that it had not been your original plan that this matter would be nearly as serious as it turned out.
In relation to the opinion of Ms Lofthouse set out in [63], it is not possible to say what effect your intellectual impairment when separated from your drug and alcohol use had on your offending. Ms Lofthouse left the matter open to further analysis by including in her opinion the words “but not fully account for”.
On that analysis I am not prepared to say that Verdins’ Principles 1, 3 and 4 apply to you. I do in sentencing you, however, take into account the deficits from which you suffer.
We must be always conscious of the proposition that we deal not with parts of people but we deal with whole people, so you come before the Court suffering the deficits that you do suffer from and I have taken those matters into account.
That leads us to the question of rehabilitation.
Ms Lofthouse took up the question of rehabilitation as she was specifically asked and sensibly asked to do so and she said this:
Mr Treasure demonstrates a pattern of chronic long term drug and alcohol use which in addition to intellectual deficits, will results [sic] in behavioural deregulation and ill-considered problem solving placing him at risk of further criminal offending. As a significant part of Mr Treasure’s rehabilitation he should be afforded the opportunity to undertake drug and alcohol programs and the possibility of facility based long term rehabilitation should be considered. Mr Treasure’s psychological issues should also be considered as contributing to his drug and alcohol use as a means of self-medication. As part of Mr Treasure’s rehabilitation he should also have the opportunity to address long standing psychological issues.
Mr Treasure will require significant support to secure and complete rehabilitation programs but, if his intellectual impairment, psychological issues and drug and alcohol use are addressed it is likely that Mr Treasure’s risk of reoffending will be reduced.[11]
[11]Ibid 17.
I suppose in part those matters are obvious, but I do not proceed on the basis that you are without prospect of rehabilitation. It follows that your case will be more complex than usual because of your underlying deficits. I do not know whether Ms Lofthouse had in mind that you were about to be sentenced to a substantial term of imprisonment but in your sentence there will be some prospects for you to be engaged in courses and other rehabilitation steps, although I would not want to be taken to have said that will be necessarily at the highest level but it is just an indication to you to take what opportunities are made available to you.
However, I will be imposing upon you a sentence with a non-parole period which will give opportunity for the Parole Board, if you are granted parole, to give you help, assistance and supervision on your release into the community.
The crime which you have committed, namely murder, is called a standard sentencing offence. The fact of standard sentencing offences are that the standard sentence for a standard sentencing offence is 25 years.
That is designed to be a guide post of where standard sentencing offences, offences which are in about the middle of the range, fit into the sentencing regime. It is not a starting point and I do not start from that point. I simply regard it together with the other sentencing factors which are important in the range of matters, all of which are to be taken into account.
I have had regard also to just punishment, denunciation, general and specific deterrence. In my own instinctive synthesis, I might have reached a higher sentence than the sentence that was imposed upon your co-accused, Coghlan, but I have reached the conclusion that the one thing I should not do is impose upon you a sentence higher than the sentence that was imposed upon Coghlan and I will not do so. Having regard to all the matters to which I am obliged, I have come to the conclusion, particularly having regard to the principles of parity, that I should impose upon you the same sentence as that imposed on Coghlan.
Mr Treasure, you will be sentenced to be imprisoned for 20 years and I fix a non-parole period of 14 years before you be eligible for parole. That period of 14 years is the appropriate non-parole period to be fixed in accordance with the statutory provisions governing the sentencing for standard sentence offences being 70 per cent of the head sentence.
I will fix and have included in my order the final figure of 426 days by way of pre-sentence detention and I direct that that finding be entered in the records of the Court.
I declare pursuant to s 6AAA of the Sentencing Act 1991, that had it not been for your plea of guilty, I would have imposed a sentence of 26 years’ imprisonment with a non-parole period of 20 years.
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