R v Armstrong

[2014] VSC 256

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

No. 0159, 0160, 0161, 0163 & 172 of 2013

Between:

THE QUEEN
and
ALAN ARMSTRONG, TYSON JOHN HAVER, MICHAEL SCOTT WALD & ADALIA OTTOBRE	Accused

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATE OF HEARING:	28-30 April 2014
DATE OF SENTENCE:	2 June 2014
CASE MAY BE CITED AS:	R v Armstrong & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 256	First revision: 3 June 2014
Second revision: 3 June 2014
Third revision: 23 June 2014

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CRIMINAL LAW –  Sentence – Animosity between AA and SD – AA incited his adult son to go with others to bash SD and to take a weapon – Son recruited friends TH and MW – Son, TH and MW went to SD’s house at night with baseball bat and loaded double-barrel shotgun – Son assaulted SD with baseball bat, causing serious injury – During assault, son called for gun – Unclear which of TH or MW produced gun – Gun discharged, twice, striking son in chest – Accidental discharge could not be excluded – Son died – AO provided false alibi for her partner TH and lied about whereabouts of missing gun – AO possessed unregistered guns.

AA:  Incitement to commit intentionally causing injury – Irresponsibility of AA in inciting own son, just released from gaol, to assault another – Grief in losing son as extra-curial punishment – Plea of guilty – Remorse – No prior convictions at age 60 – Excellent prospects of rehabilitation – Delay – AA sentenced to 12 months’ imprisonment with all but 81 days suspended for 12 months – But for plea of guilty, 18 months’ imprisonment with all but six months suspended for 18 months.

TH & MW:  Recklessly causing serious injury – Low level of serious injury but offence still serious – Manslaughter (by criminal negligence) – Son complicit in behaviour causing own death – Grief of TH and MW in killing friend – Pleas of guilty – Remorse – Irrelevant prior convictions for TH – ADHD contributed to TH’s offending – Excellent prospects of rehabilitation for TH – Depression and extreme grief will make prison time particularly burdensome for MW – Significant prior convictions for MW – MW’s offending committed whilst on parole – Parole cancelled and partly served at time of sentence – Balance of parole sentence cumulative unless exceptional circumstances – Whether exceptional circumstances – Good prospects of rehabilitation for MW – Delay – Totality – Parity – TH sentenced to total effective sentence of eight years and six months’ imprisonment with non-parole period of five years and six months – But for pleas of guilty, total effective sentence of 11 years and six months’ imprisonment with non-parole period of eight years and six months – MW sentenced to total effective sentence of nine years’ imprisonment with non-parole period of six years – But for pleas of guilty, total effective sentence of 12 years’ imprisonment with non-parole period of nine years.

AO:  Accessory after the fact to recklessly causing serious injury – No prior convictions – Subsequent conviction and breach of community correct order – Very good prospects of rehabilitation – AO sentenced to eight months’ imprisonment wholly suspended for eight months – But for plea of guilty, 12 months’ imprisonment with all but four months suspended for 12 months – Possession of unregistered firearms – AO sentenced to undertaking to be of good behaviour for eight months.

Legislation:Crimes Act 1958 (Vic), ss 5, 17, 18, 321I, 325 – Sentencing Act 1991 (Vic), ss 5, 6AAA, 15, 16(1), 16(3B), 18, 27, 75 – Firearms Act 1996 (Vic), s 6A(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Sonnet	Office of Public Prosecutions
For Alan Armstrong	Mr S. Johns	James Dowsley & Associates
For Tyson Haver	Mr T. Kassimatis	Pica Criminal Lawyers

For Scott Wald	Mr P. Morrissey SC	Robert Stary Lawyers
For Adalia Ottobre	Mr C. Pearson	Greg Thomas, Solicitors

HIS HONOUR:

OVERVIEW

1           On 8 December 2011, Alan Armstrong did something that will haunt him for the rest of his life.  He asked his 24-year-old son Anthony Robert Armstrong, who had not long since been released from gaol, to go and bash Stephen Delmo and to take others and a weapon with him.  Two weeks later, Anthony Armstrong died doing as his father asked, and more.

2           In the early hours of 22 December 2011, Anthony Armstrong and his friends Tyson John Haver and Michael Scott Wald went to Mr Delmo’s bungalow in Somerville.  They were armed with a baseball bat and a loaded double-barrel shotgun.  Mr Delmo heard intruders and went outside to investigate.  He confronted Anthony Armstrong, who turned and took to him with the baseball bat.  During the assault, Anthony Armstrong called for the gun.  Either Mr Haver or Mr Wald, it is not clear who, ran towards them.  One of them was holding the gun and told Mr Delmo to get down on his knees.  It is not clear how, but the gun discharged, twice, perhaps an instant or seconds apart, striking Anthony Armstrong to the chest both times.  Mr Delmo, who had suffered serious injury, fled back inside his home and rang police.

3           Mr Haver and Mr Wald took Anthony Armstrong to an area across the way from Frankston Hospital.  Mr Wald went into the Emergency Department screaming for help, saying his friend had been shot and was across the road.  He left when he learnt that police were about to be called.  Minutes later, police later discovered Anthony Armstrong’s lifeless body alone nearby.  He had died from the gunshot wounds.

4           Mr Haver’s partner Adalia Ottobre became embroiled in the aftermath of this tragic affair.  In a statement she made to police on 27 April 2012, Ms Ottobre gave Mr Haver a false alibi and lied about the whereabouts of a shotgun registered to her that was missing from her home.  She knew the truth was that Mr Haver had been involved in the incident and that the missing gun – which was the one used in the shooting – and the baseball bat had been disposed of by Mr Haver on 27 December 2011.  The weapons were found much later under a footbridge in Woodend.

5           Those events have given rise ultimately to the following charges.  On one indictment, Mr Armstrong has pleaded guilty to inciting his son to commit the offence of intentionally causing injury to Mr Delmo.  On another indictment, Mr Haver and Mr Wald have pleaded guilty to recklessly causing serious injury to Mr Delmo and to the manslaughter of Anthony Armstrong.  On a third indictment, Ms Ottobre has pleaded guilty to being an accessory after the fact to Mr Haver’s offence of recklessly causing serious injury, albeit believing he had only committed the offence of intentionally causing injury.  Finally, the discovery of unregistered firearms at Ms Ottobre’s premises resulted in a fourth indictment containing a rolled up charge of possessing four unregistered category A or B longarms, to which she pleaded guilty.

6           From 28 to 30 April 2014, I heard separate openings and pleas in mitigation – first in respect of Mr Haver and Mr Wald, then Ms Ottobre and then Mr Armstrong.  It is convenient, however, to deal with all matters in the one set of reasons.

PROCEDURAL HISTORY

7 Initially, the accused were charged with different offences. In December 2012, Mr Armstrong, Mr Haver and Mr Wald were charged with the murder of Anthony Armstrong pursuant to s 3A of the Crimes Act 1958 (Vic). They were also charged with intentionally causing serious injury to Mr Delmo and recklessly causing him serious injury in the alternative. Mr Wald was also charged with attempting to pervert the course of justice. Ms Ottobre was charged with attempting to pervert the course of justice, being an accessory after the fact to murder, possession of unregistered firearms and possessing and cultivating cannabis.

8           Following a contested committal hearing in the Magistrates’ Court in September 2013, Mr Armstrong, Mr Haver and Mr Wald were all discharged on the charge of murder.  They were committed for trial on the remaining charges.  Ms Ottobre was also committed for trial on the charges she faced.

9 The Director of Public Prosecutions then directly indicted Mr Haver and Mr Wald, but not Mr Armstrong, on the charge of murder under s 3A. The indictment also contained charges of intentionally causing serious injury to Mr Delmo and the alternative of recklessly causing serious injury against those three accused, and a charge of accessory after the fact to murder against Ms Ottobre. Another indictment charged Ms Ottobre and Mr Haver with possession of unregistered firearms and possession and cultivation of cannabis.

10 The matter was fixed for trial commencing 24 April this year. A week of pre-trial legal argument was also set down for hearing from 20 January. The principal pre-trial issues were to include, first, whether the charge of murder under s 3A could apply to the accidental killing of an accomplice and, second, whether the offence of intentionally causing serious injury, which was the crime to be relied on by the Director as engaging s 3A, is “a crime the necessary elements of which include violence” within the meaning of that provision.[1]

[1]These issues were discussed in more detail in my reasons for decision in Mr Haver’s application for bail prior to trial – see Haver v DPP [2013] VSC 662, esp. at [25]-[36].

11         Sensibly, however, all parties continued negotiations in the interim and each matter ultimately settled on the bases set out earlier.  As was conceded by Mr Sonnet, who appeared for the Director on each plea, this course avoided not only a long trial, but also what likely would have been a lengthy appeal process in the cases of Mr Haver and Mr Wald.  Both the Director and the accused had indicated that, if they were on the losing end of any rulings on those pre-trial issues, they would seek to take an interlocutory appeal to the Court of Appeal, and perhaps even further, if necessary.

SUMMARY OF FACTS IN MORE DETAIL

Introduction

12         At this point, I shall turn to a more detailed summary of the facts and the way in which the Director puts the case against each accused.  On each plea, a separate prosecution opening was received as an exhibit and read to the Court by Mr Sonnet.  Since there is a good deal of overlap between those openings, it would be needlessly repetitive to summarize them separately.  Instead, I shall set out the one detailed summary.  But I shall also append each opening to these reasons.[2]  The facts outlined in the openings are not disputed.

[2]On the plea of Mr Armstrong, see Exhibit 1 (which is Annexure 1 to these reasons); on the pleas of Mr Haver and Mr Wald, see Exhibit 1 (Annexure 2); and on the plea of Ms Ottobre, see Exhibit 1 (Annexure 3).

Age of accused, complainant and deceased

13         At the time of the offending, Alan Armstrong was aged 60 (and is now 63); Mr Haver was 28 (now 31); Mr Wald was 26 (now 29); and Ms Ottobre was 29 (now 31).  Mr Delmo was 50 when he was assaulted (and is now 53).  Anthony Armstrong was aged 24 at the time of his death.

Incitement: Mr Armstrong 

14         There was a good deal of ill-feeling between Alan Armstrong and Stephen Delmo.  I was told on the plea that the animosity stemmed from Mr Armstrong’s support of his friend Debbie Wright in her custody dispute with Mr Delmo over her grandchild and his child.  The evidence is that many other persons also disliked Mr Delmo because of his conduct.  On 24 October 2011, Mr Delmo told another person to tell Mr Armstrong that “he is dead” because he had been “shooting his mouth off” about him.  Mr Armstrong told Ms Wright that he hated Mr Delmo.  Relations deteriorated to the point that, on 3 November 2011, the Frankston Magistrates’ Court granted Mr Armstrong an intervention order against Mr Delmo.  At some stage, Mr Armstrong asked Ms Wright about a map that she had drawn of Mr Delmo’s house for the custody proceedings.  On 22 December 2011, the map and other documents containing personal information about Mr Delmo were found at Mr Armstrong’s premises.

15         Soon after the intervention order was granted, Anthony Armstrong was released from prison on parole.  He became aware of the intervention order and of the animosity between his father and Mr Delmo.

16         On 8 December 2011, Adam Tsaousidis was present when Mr Armstrong encouraged his son to assault a man living in Somerville (namely, Mr Delmo).  Alan Armstrong was upset and angry.  He explained to his son that Mr Delmo was giving him trouble and harassing him.  Mr Tsaousidis heard Mr Armstrong say to his son, “You need three people and a weapon, but the weapon is not to be used, you just have to bash him” (or similar words).

Recklessly causing serious injury and manslaughter:  Mr Haver and Mr Wald

17         Anthony Armstrong did as his father requested, and more.  He asked his friends Mr Haver and Mr Wald to help him.  Sadly, they agreed.  Worse still, all three decided to take a baseball bat and a loaded double-barrel shotgun.

18         And so it was that, at about 2:30 a.m. on 22 December 2011, Anthony Armstrong, Mr Haver and Mr Wald attended outside Mr Delmo’s bungalow in Somerville armed with the bat and the gun, and full of bad intentions.  Mr Delmo heard noises and went outside to investigate.  He confronted the intruders and gave chase.  He yelled out to one of them, “Come here, you fuckin’ rat”.  The first of the intruders (Anthony Armstrong) then turned and took to Mr Delmo with the baseball bat.

19         Mr Delmo saw two other males (Mr Haver and Mr Wald) enter the yard.  During the assault, he heard the one hitting him (Anthony Armstrong) say, “Get over here with the gun”.  He then saw one of the other two intruders running towards him.  Mr Delmo was ordered to get down on his knees by one of the other two.  The same person had the gun.  Mr Delmo was struck again with the baseball bat and went down to the ground.  He then heard the blast of a shotgun.  He thought the shot came from about three metres away.  Mr Delmo’s 14-year-old son Jayden Wright, who was in bed in the bungalow, thought he heard two shots up to four seconds apart.  Nearby residents also heard two shots.  In any event, it is not clear how it occurred, but the gun discharged, twice, perhaps an instant or seconds apart.  Anthony Armstrong fell to the ground with two gunshot wounds to his chest.

20         Mr Delmo fled back inside.  The stray shots had struck his home too.  Gunshot damage was found on the front timber wall and in plaster inside a child’s bedroom; and a shotgun pellet was found beneath the plaster.  At about 2:40 a.m., Mr Delmo rang triple 0.  He said he had been assaulted by three males armed with a baseball bat.  He also said he heard a shotgun blast go over his head.

21         At about 2:42 a.m., Mr Wald’s mobile phone made a 23-second call to triple 0 but was not connected to any of the emergency services.  In the background, Mr Haver could be heard asking the operator for the Frankston Hospital.  Mr Haver and Mr Wald picked up Anthony Armstrong and took him to Frankston Hospital, but left him outside, across the road.  At about 2:51 a.m., Mr Wald went into the Emergency Department screaming for help, saying his friend had been shot and was across the road.  He left when he learnt that police were about to be called.

22         Minutes later, at about 2:55 a.m., Anthony Armstrong’s body was found, alone, by police near the hospital.  Shotgun shells were found in his pockets.  A post mortem examination determined that he had died from two gunshot wounds to his chest.

23         In the period thereafter, Mr Armstrong, Mr Haver and Mr Wald variously lied to others or obfuscated about their involvement in this tragic incident.

24         Mr Delmo suffered a laceration to his scalp (requiring six stiches), a fractured left hand and bruising to the scalp and left knee.  He suffers ongoing dizziness, as well as ongoing pain in his hand and his knee.

Accessory after the fact and possession of unregistered firearms:  Ms Ottobre

25         On 27 April 2012, Ms Ottobre sought to help Mr Haver evade apprehension, prosecution, conviction or punishment principally by providing him with a false alibi in her statement to police.  Further, as to police noticing that her registered Eibar 12-gauge side-by-side shotgun was missing from her home, she also said in that statement, falsely, that it could be at a relative’s house.  She knew the truth was that the gun – which was the one used in the shooting – and the baseball bat had been disposed of by Mr Haver on 27 December 2011.  The gun and the bat were found under a footbridge in Woodened on 23 January 2013.

26         Also on 27 April 2012, police found four unregistered category A or B longarm firearms at Ms Ottobre’s premises:  a Winchester Model 53 firearm; a bolt-action .303 rifle; a Winchester 1892 Daisey rifle; and a side-by-side shotgun.

Interviews with police

27         Mr Armstrong:  Mr Armstrong was interviewed by police on three occasions.  On 22 December 2011, he denied any involvement in the assault on Mr Delmo or any knowledge of or involvement in his son’s shooting.  On 23 August 2012, Mr Armstrong could not account to police for the map of Mr Delmo’s address found at his premises.  He said his son was aware of the troubles he was having with Mr Delmo.  He told his son that Mr Delmo was a nuisance.  He denied he counselled his son to assault Mr Delmo.  He did not respond to a suggestion that he knew of the shooting prior to receiving a phone call from his ex-wife Mary Armstrong.  He denied knowing who was with his son at the time of the assault upon Mr Delmo.  On 17 December 2012, Mr Armstrong again denied any involvement in the offences.

28         Mr Wald:  Mr Wald was interviewed by police on 11 January 2012.  He gave “no comment” responses.

29         Mr Haver:  Mr Haver was interviewed by police on 27 April 2012 and 17 December 2012.  On each occasion, he too gave “no comment” responses.

30         Ms Ottobre:  Ms Ottobre was interviewed by police on 8 June 2012 and 17 December 2012.  On each occasion, she gave “no comment” responses.

Bases of liability

31         Recklessly causing serious injury:  The charge of recklessly causing serious injury is put against Mr Haver and Mr Wald on the basis of a joint criminal enterprise with Anthony Armstrong to assault Mr Delmo.  They participated in that joint enterprise by attending Mr Delmo’s premises with Anthony Armstrong whilst armed with the baseball bat.  In accordance with their agreement, Mr Delmo was assaulted with that bat by Anthony Armstrong and serious injury was caused thereby.  At the time of the attack, they foresaw that serious injury would probably be caused.

32         Manslaughter:  The charge of manslaughter is put on the basis of criminal negligence.  Mr Sonnet made it clear that the charge was specifically not put on the basis of an unlawful and dangerous act.  The Director relies on the following particulars of criminal negligence: (a) the carrying of a loaded firearm in a public place; (b) the production of the loaded firearm immediately proximate to Anthony Armstrong and Mr Delmo whilst they were fighting, during a chaotic scene and when there was a heightened level of animosity directed towards Mr Delmo; and (c) the discharge of the firearm in those circumstances.  It is accepted by the parties that either Mr Haver or Mr Wald produced the gun moments before it discharged and that one aided and abetted the other to commit the offence.

33         Other charges:  The charges against Mr Armstrong and Ms Ottobre are each put on the basis of direct liability.  The charge of possessing unregistered firearms is a rolled up charge.

TYSON HAVER AND MICHAEL WALD

Introduction

34         I turn now to deal with the particular considerations relevant to sentencing Mr Haver and Mr Wald.

35         Subsequently, I shall do the same with respect to Mr Armstrong and then Ms Ottobre.

36         I shall announce the sentences in all matters at the conclusion of these reasons.

Victim impact statements

Victim impact statements concerning the death of Anthony Armstrong

37         Mr Sonnet initially tendered five victim impact statements in the cases of Mr Haver and Mr Wald (Exhibits 2-6).  The statements were made by Anthony Armstrong’s mother Mary Armstrong; his aunt Jane Wilden; his best friend’s father Allan Knowles; his friend Tayla Knowles; and his former girlfriend Brittany Taylor.

38         They are profoundly moving documents.  All authors speak of the terrible grief and loss they have suffered as a result of Anthony Armstrong’s untimely death.

39         Mrs Armstrong’s statement was read to the Court.  Anthony was her only child.  She describes herself as a mother with no child and yet she feels she is dishonouring him in saying that.  Her heart is full of sadness.  She misses her son terribly.  It pains her to know that she will never see him grow up, get married or have children and that she will never be a grandmother.  She feels her life is now in a continual fog and that she cannot breathe.  Her sadness and loss are made worse by the awful memories trapped in her head and heart – including the scene at the morgue, choosing her son’s coffin and seeing him in it.  There is no joy in her life any more.  Birthdays, Christmas, New Year and Mother’s Day are especially hard.  There is no escaping the emptiness.  There is just sadness. 

40         I have taken the contents of those five victim impact statements into account in sentencing for the manslaughter of Anthony Armstrong.

Victim impact statement concerning the assault on Stephen Delmo

41         On the second day of the plea, Mr Sonnet tendered a victim impact statement made by Mr Delmo (Exhibit 14).  Mr Delmo explains that he now wakes up three or four times a night and finds himself looking around and listening for intruders.  He is startled whenever his dog stirs.  He sleeps with weapons under his bed.  When he fled back into his home on the night of the assault, he found his son cowering behind the lounge room door armed with a fire poker.  His son’s bedroom was the one in which the stray pellet was found.  He no longer sleeps in that room.  Mr Delmo still suffers from psychological disorders, a permanent hand disorder, ringing in his ears and pain in his knee (in respect of which he is still awaiting corrective surgery).

42         I have taken the contents of Mr Delmo’s victim impact statement into account in sentencing on the offence of recklessly causing serious injury.  The statement is also relevant to the charge of manslaughter, as the fears Mr Delmo and his child have suffered relate in part to the discharge of the firearm.

Nature and gravity of the offences

43         I turn now to the nature and gravity of the offences to which Mr Haver and Mr Wald have pleaded guilty.

Recklessly causing serious injury

44         Recklessly causing serious injury is, by definition, a relatively serious offence.  It involves recklessly causing another person serious injury and carries a maximum penalty of 15 years’ imprisonment.[3]  The offence is one that can vary a great deal in seriousness.  The charge can be, and often is, heard summarily in the Magistrates’ Court.  In this case, the charge was, of necessity, heard in this Court given its level of seriousness and its connection to the homicide.

[3]See s 17 of the Crimes Act 1958 (Vic).

45         The offence was pre-meditated in that all three men went to Mr Delmo’s house for the purpose of bashing him.  That a weapon – a baseball bat – was used against an older man in what appears to have been a vigilante attack of sorts by intruders in his own yard in the dead of night also adds to the seriousness of the offence.  Further, despite his preparedness to go outside and confront the intruders, Mr Delmo explains in his victim impact statement that he thought it might be his 14-year-old son and his friend sneaking out in the early hours when in fact he found himself ambushed and confronting three assailants he did not know.  Whatever his thoughts as he ventured outside initially, the events that unfolded thereafter must have been terrifying for him.

46         On the other hand, whilst the injuries suffered by Mr Delmo amount to serious injury and he still suffers ongoing difficulties as a result, Mr Sonnet accepted, and I agree, that the harm caused is towards the lower end of the spectrum of serious injury.  Further, it was Anthony Armstrong who was actually wielding the blows that caused Mr Delmo’s injuries and who was the driving force behind the assault, albeit Mr Haver and Mr Wald were complicit in that behaviour.

47         In my view, despite the low level of serious injury, this is still a serious example of the offence because it was planned and committed with a weapon in the dead of night on the victim’s premises by three intruders acting in company against one person.  Of course, much worse examples of the offence might be imagined, whether because of far more serious and lasting injuries or more aggravating circumstances or both.  I do not say it is anywhere near the upper end of the spectrum of seriousness for this offence.  Nor is at the lower end of the scale.  Overall, it strikes me as a serious example of the offence but I recognize that the serious injury caused was, fortunately, at the lower end of the spectrum of gravity.

Manslaughter

48         In this State, manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment.[4]

[4]See s 5 of the Crimes Act 1958 (Vic).

49         The offence is serious, by definition.  A human life has been lost as a result of criminally negligent behaviour.  In her victim impact statement, Mrs Armstrong said that a mother should not outlive her child.  When a child pre-deceases his or her parents, it reverses the natural order of things.  Such a death must be all the more unbearable when the child is so young, as Anthony Armstrong was, and is taken as a result of criminal behaviour.

50         While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely.  Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is rung lower; and then manslaughter by criminal negligence is another rung down.  Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act.  This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act.  But there is no inflexible rule.  Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act.  Each case must turn upon its own particular facts.  Nevertheless, a survey of the authorities shows that sentences for manslaughter by criminal negligence, in Victoria, have generally been more lenient than those imposed for other forms of manslaughter.[5]

[5]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at [75]).

51         In my view, some features of the present case tend this towards a relatively serious example of manslaughter, at least by criminal negligence.  Mr Haver, Mr Wald and Anthony Armstrong went to Mr Delmo’s house in the middle of the night armed with a baseball bat intent upon violence towards Mr Delmo.  Knowing nothing else, a reasonable person would say that to take a loaded shotgun along as well on such an escapade was more than tempting fate.  Indeed, it was idiotic.  Further, when the planned violence commenced, the loaded gun was produced in circumstances that only increased the risk of a person being shot and killed.  In my view, that was a profoundly negligent thing to do or to aid and abet.  To that extent, Mr Haver and Mr Wald’s culpability is high.

52         On the other hand, some features of the offence tend towards a lower level of gravity.  First, this is a case of manslaughter by criminal negligence, not by some intentional act of violence that amounted to an unlawful and dangerous act.  Mr Haver and Mr Wald had no intention of harming Anthony Armstrong at all.  He was their friend.  Secondly, the evidence does not disclose how the gun was actually discharged.  On such evidence as there is, I cannot exclude the reasonable possibility that it discharged accidentally, without a deliberate pulling of the trigger.  Whether the holder of the gun tripped or was bumped, or some other action caused the discharge, I cannot say.  But I certainly cannot exclude an accidental discharge.

53         Thirdly, the sad fact is that Anthony Armstrong’s behaviour was, to a very significant degree, the cause of his own tragic death.  In R v Tran (2002) 4 VR 457, Callaway JA said this (at 467[34]):

The correct view is that the complicity of a victim constitutes the absence of a circumstance of aggravation that is commonly present.  Not too much attention is to be paid to labels.  When it is said that a victim is “innocent”, that means only that he or she was not complicit.  It is a matter for the judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim’s complicity.  In a case like R v Wright it may be important that a circumstance of aggravation was absent.  In a case like the present, as we shall see, although it is proper to take the victim’s complicity into account, it is not determinative.  Similarly, not too much should be read into the labelling of innocence as a circumstance of aggravation.  Conceptually it is so, but its significance depends on the facts of the particular case.  This judgment is not intended to introduce a new straightjacket, but rather to free judges from an inflexible prohibition against their considering, in any case at all, the complicity or otherwise of the victim.  (Citations omitted.)

54         The principle has been considered in culpable driving cases, such as Tran itself, where the deceased is said to have been complicit in the culpable driving.[6]  In the cases I have considered, the deceased’s complicity has been given some[7] or little[8] weight, or the principle was inapplicable because complicity was absent.[9]

[6]See also, e.g., DPP v Walden [2003] VSCA 139 at [48]-[49] per Ashley JA (Phillips CJ and Vincent JA agreeing); and R v Cowden [2006] VSCA 220 at [18]-[32] per Warren CJ, Nettle and Redlich JJA.

[7]R v Tran (2002) 4 VR 457 at 468[36]-469[37].

[8]R v Cowden [2006] VSCA 220 at [18]-[32].

[9]DPP v Walden [2003] VSCA 139 at [48]-[49].

55         The present case is different.  Anthony Armstrong was a party to bringing the loaded gun to what was always going to be a chaotic affair.  He called for the gun, a gun he must have known was loaded, whilst in the throes of belting Mr Delmo with a baseball bat in the dark.  Thus, the principle is engaged.  It is plain that Anthony Armstrong was directing events on the night.  He alone perpetrated the act of bashing Mr Delmo and he alone called for the gun.  Further still, he must be taken to have foreseen and consented to the risk of something going wrong when he set off on this foolhardy adventure and then to the heightened risk of misadventure when he called for the gun.  Accordingly, in my view, it is a matter of considerable weight that Anthony Armstrong was complicit in the behaviour that caused his own death.

56         The last two factors mentioned go some way to offsetting what I otherwise would have regarded as a very serious example of manslaughter by criminal negligence.  Overall, I regard this crime as a comparatively serious instance of manslaughter by criminal negligence and as falling somewhere above the mid-range of gravity of manslaughter more generally.

Prior criminal histories

57         Each accused has a prior criminal history.

Mr Haver

58         In 2003 (at age 19), Mr Haver received a fine without conviction for theft and fraudulently using a registration plate.  In 2005 (at 21), he entered an undertaking to be of good behaviour, without conviction, for possessing unregistered guns and ammunition.  In 2006 (at 22), he received a wholly suspended sentence of one month’s imprisonment and a fine for driving whilst disqualified and driving an unregistered vehicle.  All matters were dealt with in the Magistrates’ Court.

59         In my view, these prior matters are irrelevant to sentencing Mr Haver in this case.  There is no suggestion the guns and ammunition were misused in 2005.  Mr Haver is to be treated as a person with no previous history of violence or misuse of guns.

Mr Wald

60         Mr Wald, on the other hand, has a far more relevant criminal history.

61         In 2002 (at age 17), Mr Wald was placed on a community based order (“CBO”) for unlawful possession and theft.  In 2004 (at 19), he received a wholly suspended sentence of three months’ imprisonment for multiple dishonesty offences and upon resentencing for breaching the earlier CBO.  In 2005 (at 20), he was placed on a recognizance to be of good behaviour for stealing.  In 2006 (at 21), he was fined for stealing and assault.  All of those matters were heard in the Magistrates’ Court.

62         In 2007 (at 22), Mr Wald pleaded guilty in the County Court to armed robbery, intentionally causing injury, false imprisonment and two counts of rape.  I was provided with a transcript of the judge’s reasons for sentence (Exhibit 15).  While the incidents giving rise to the charges occurred when Mr Wald was only 21, they were very serious and quite disturbing.  The judge, one of vast experience in the criminal law, imposed a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years and six months.  Mr Wald was released on parole on 7 October 2011.  The present offences were committed whilst released on that parole order.

63         Mr Wald also has two subsequent convictions.  On 26 October 2012, his parole was cancelled and he was returned to custody three days later.  On 19 December 2012, whilst in custody serving part of his cancelled parole sentence, Mr Wald appeared in the Magistrates’ Court and was convicted of an assault that had occurred soon after release on parole, for which he received three months’ imprisonment, and of failing to comply with the conditions of the registration order imposed on him in consequence of the rape convictions, for which he received a further three months’ imprisonment, cumulative, making a total of six months’ imprisonment.  Mr Wald has remained in custody since 29 October 2012.

64         In my view, Mr Wald’s prior and subsequent history for violence and the fact that he has offended in a serious way whilst on parole both add to the weight to be accorded to specific deterrence and reduce the level of confidence that might otherwise be had in his prospects of rehabilitation.

65         In addition, that the present offending occurred whilst on parole is itself an aggravating factor.

66         The further implications of his cancelled parole will be addressed later in these reasons.

Mitigating factors

Introduction

67         I turn now to the mitigating factors urged by Mr Kassimatis, who appeared for Mr Haver on his plea in mitigation, and Mr Morrissey SC, who appeared for Mr Wald.

Pleas of guilty

68 First, Mr Haver and Mr Wald both pleaded guilty. Mr Sonnet accepted that, because of the laying of the murder charge under s 3A, this became a very complicated matter. Both accused were discharged on murder at the committal hearing. Subsequently, a direct indictment was filed alleging murder under s 3A. Later still, the Director indicated to the parties that a charge of common law murder (based on transferred malice) might be preferred. Mr Sonnet submitted that the changed particularization of the indictment at a late stage – by which I took him to mean withdrawing murder and intentionally causing serious injury and alleging manslaughter and recklessly causing serious injury instead – and the entering of pleas of guilty immediately thereafter entitled Mr Haver and Mr Wald to a significant discount by virtue of early pleas of guilty. I accept that submission.

69         Further, the pleas were entered in circumstances where the Director could not establish who was holding the gun at the relevant time or how it came to be discharged.  And the Director’s case on presence was only circumstantial.  Some might have taken their chances with a jury in such circumstances.

70         The pleas of guilty have not only spared witnesses from giving evidence in a difficult case, but have also avoided a long and complex trial and, as indicated earlier, what probably would have been protracted appellate steps before any such trial.

71         In Mr Haver’s case, he offered to plead guilty to intentionally causing serious injury at an early stage.  Mr Sonnet accepted that this was significant for two reasons.  First, it was an offer to plead guilty to a more serious charge than the one on which he was ultimately indicted.  Secondly, it was an acknowledgment to the Director of presence at the scene, a matter on which, as I say, there was only circumstantial evidence.

72         For those reasons, the pleas of guilty are, in each case, a substantial mitigating factor.  Despite the early offer made by Mr Haver that was not matched by Mr Wald, I treat the pleas collectively as being of approximately equal weight in mitigation, because, as will be seen shortly, Mr Wald alone did things I consider to be of particular importance in respect of the related concept of remorse – namely, he wrote a letter of apology to Mrs Armstrong and has tried to help her.

Remorse

73         The second factor in mitigation is remorse.  I am satisfied that both Mr Haver and Mr Wald have genuine remorse for their offending behaviour, although that remorse is mostly manifested in the shame and great sadness they feel for killing their friend rather than for the harm caused to Mr Delmo.  It is true that both men fled the scene after taking Anthony Armstrong to near, but not inside, the hospital.  And it is true that they lied or obfuscated to others about their involvement.  But there are several matters that lead me to conclude that both men are genuinely remorseful.

74         First, each accused pleaded guilty to both charges at an early stage when some in their position might have run a trial.  Secondly, the references and psychological reports speak of feelings of remorse, shame, guilt and the like at their behaviour and its consequences (see Exhibits 8, 10, 12 and 13).  Thirdly, so deep was his shame and sadness in being involved in the death of his friend that Mr Wald was driven to attempt suicide, twice.[10]  Fourthly, as mentioned earlier, Mr Wald wrote a letter of apology to Mrs Armstrong.  Further, he has tried to help her around the house with the things that Anthony Armstrong would have done.[11]  They were thoroughly decent things to do.  Finally, the Director accepts, as I do, that both men are profoundly remorseful for their conduct in killing their friend.

[10]See the reference of Leah Whetton, 26 April 2014, at p 1 (part of Exhibit 10); and the report of Carla Lechner, 18 April 2014, p 4 (Exhibit 8).

[11]See the reference of Leah Whetton, 26 April 2014, at p 1 (part of Exhibit 10).

Extra-curial punishment in responsibility for killing friend

75         Thirdly, it is plain that both Mr Haver and Mr Wald are devastated at the loss of their friend Anthony Armstrong as a result of their own criminal behaviour.  A perpetrator’s distress, injury or loss as a consequence of his or her offending may impact in different ways in sentencing.[12]  In this case, the accused’s suffering is itself a form of extra-curial punishment.  It is a punishment they will experience for the rest of their lives.  In my view, their experience reduces the weight to be accorded to specific deterrence and just punishment, renders their recidivism less likely and increases their chances of reform.

[12]As to the ways in which a perpetrator’s distress, injury or loss as a consequence of offending may impact on sentencing considerations, see, e.g., R v Teh (2003) 40 MVR 195; [2003] VSCA 169 at [20] per Vincent JA.

Absence of relevant prior convictions

76         Fourthly, as I said earlier, Mr Haver’s prior matters are irrelevant to sentencing on the present offences.  He is to be regarded as a person with no previous history of violence or misuse of firearms.

Personal considerations

77         Fifthly, Mr Kassimatis and Mr Morrissey both submitted, and Mr Sonnet accepted, that there are matters personal to each accused that should be regarded as mitigating factors.

78         Mr Haver:  In particular, Mr Kassimatis submitted I should be satisfied that there is a nexus between Mr Haver’s untreated Attention Deficit/Hyperactivity Disorder (“ADHD”) and his offending but that the prognosis for recovery from that affliction is positive.

79         I received a report (Exhibit 12) and heard sworn evidence from Patrick Newton, a forensic psychologist.  Mr Newton explained that Mr Haver is very rare in that, at the age of 30, he still continues to display symptoms of childhood ADHD, including difficulties with concentration, impulsivity, decision making, clear thinking and assessing the potential outcomes of various courses of action.  He has a history of using illicit substances, one motivation for which was a misguided effort to treat his ADHD symptoms.  Mr Newton is of the view that Mr Haver’s impulsivity and inability adequately to assess alternative options contributed to his decision to become involved in the events that led to the offences.  He is also of the view that the stable relationship he has enjoyed with Mr Ottobre and his strong work history have mitigated what would have been the more severe effects of ADHD.  Nevertheless, Mr Newton opines that Mr Haver would have been better off if, in addition, he had been treated with medication.  Finally, he is of the view that Mr Haver’s pro-social attitude, commitment to his stable relationship (he and Ms Ottobre were married recently) and his positive work history, together with further maturity and treatment with medication, mean that his prognosis is relatively positive in the longer term.

80         I am satisfied that there is a nexus between Mr Haver’s ADHD and his decision to engage in the behaviour which led to the offending.  I regard the nexus as limited, however, because Mr Newton did not consider that the ADHD was the only factor in Mr Haver’s decision making.  Rather, he simply thought Mr Haver’s decision to act as he did would have been less likely absent the effects of ADHD.  In my view, the result is that Mr Haver’s moral culpability and the need for general deterrence are reduced, but only to a modest degree.  I am also satisfied that there is a good chance that, over time and with treatment, the effects of ADHD will diminish substantially, which in turn should lessen the risk of impulsive and ill-considered decisions of the type that led to Mr Haver’s offending on this occasion.

81         Mr Wald:  As I understood it, Mr Morrissey submitted that Mr Wald’s relatively low IQ and deprived educational background impaired his decision making at the time of the offending; and that his severe reactive depression to the incident has made, and will continue to make, his time in custody substantially more difficult.

82         I received reports from clinical neuropsychologist Dr James Drury and forensic psychologist Carla Lechner.  Dr Drury’s report was written in 2007 for the County Court matter.  He explains that Mr Wald has difficulties with reasoning, speed of processing, attention and concentration and a sub-par ability to remember and learn new things.  Formal testing showed his IQ to be 77, which was described as being in the borderline range, where 94 percent of people would perform better on the same tests.  Likely causes were a serious head injury suffered as a teenager, excessive drug use and poor education.

83         Ms Lechner assessed Mr Wald recently.  She opined that Mr Wald exhibits symptoms of major depression, for which he has been prescribed anti-depressant medication.

84         Whilst Mr Wald’s cognitive deficits may have impacted on his decision to involve himself in the offending behaviour, there is no evidence upon which I can act to reach a conclusion that there was such a link.  Neither Dr Drury (whose report was written some years ago for another purpose) nor Ms Lechner offers any opinion about any such link.  In fact, Mr Wald frankly told Ms Lechner that Anthony Armstrong told him “about some man giving his dad a hard time”, that “his dad had an intervention order but it wasn’t working” and that “he was hassling his dad and we thought we’d give him ‘a touch up’”.  Those remarks suggest a quite deliberate, albeit concrete, way of thinking about the matter rather than any impairment in his ability to think things through.

85         However, I am satisfied that Mr Wald suffers major depression which is exacerbated by the grief he suffers over the death of his friend and his inability to save him.  Of course, Mr Haver suffers great sorrow as well.  But the evidence satisfies me that Mr Wald’s grief is so profound that, when coupled with his major depression, he has found gaol significantly more burdensome than other prisoners do, and will continue to do so for some time yet.  As I pointed out earlier, Mr Wald initially attempted suicide – once by an overdose and hanging and another by gassing.

86         Whilst Mr Wald’s particular affliction and Mr Haver’s ADHD go to different sentencing considerations, I consider that the net effect on each accused’s sentence is of a similar modest order.

Prospects of rehabilitation

87         The sixth factor in mitigation concerns each accused’s prospects of rehabilitation.

88         Mr Haver:  I am satisfied that Mr Haver has excellent prospects of rehabilitation.  There are several reasons.  First, he has pleaded guilty and is remorseful.  Secondly, he has no relevant prior convictions.  Thirdly, as I indicated earlier, the fact that Mr Haver knows he is responsible for killing his friend renders recidivism less likely and increases his chances of reform.  Fourthly, Mr Haver has an excellent work history.  He has worked hard all of his life and maintains a strong work ethic.  When on bail, he continued to work whenever he could, despite the strictures placed on him by bail conditions.  There is every reason to believe he will continue to do the same when he is released.  Fifthly, despite abusing illegal drugs previously, Mr Haver has been abstinent whilst on bail.  Sixthly, he has a supportive partner and family.  Mr Haver has been in a relationship with Ms Ottobre since he was about 20.  They married recently, despite knowing he would be going to gaol for a substantial period.  Finally, as I indicated earlier, Mr Newton considers, and I accept, that the symptoms of Mr Haver’s ADHD are likely to diminish in the future, thereby reducing the risk of ill-considered reasoning of the type that resulted in his offending.

89         Mr Wald:  Mr Wald’s relevant criminal history and the fact that he committed the offences whilst on parole reduce the confidence I otherwise would have in his prospects of rehabilitation.  Nevertheless, I am of the view that those prospects are properly described as good – not excellent or very good, but good.  There are several reasons.  First, he has pleaded guilty and is remorseful for his actions.  Secondly, as with Mr Haver, the fact that Mr Wald knows he is responsible for killing his friend renders his recidivism less likely and increases his chances of reform.  Thirdly, there is evidence, which I accept, that his involvement in Mr Armstrong’s death has rendered Mr Wald determined to steer away from drug use and violence more generally.[13]  I accept that the impact of this incident on Mr Wald has been profound.  Fourthly, despite his criminal history, I can detect something redeeming in Mr Wald.  That he has tried to help Mrs Armstrong and has apologized to her impresses me.  Others describe him in a way that suggests he has admirable qualities of loyalty and an ability and a preparedness to work hard, despite having a relatively modest employment history.  Fifthly, he has the support of his girlfriend, her mother and at least part of his family.  Mr Wald has had a very deprived early life.  Support of the type provided by his girlfriend and family is likely to be important to Mr Wald’s chances of reform.

[13]See the reference of Leah Whetton, 26 April 2014, at pp 2-4 (part of Exhibit 10); and the report of Carla Lechner, 18 April 2014, pp 4-5 & 6-7 (Exhibit 8).

Delay

90         The next factor in mitigation is delay.

91         The offences occurred on 22 December 2011.  Mr Haver and Mr Wald were not charged for some time because, no thanks to them, it took the police a good while to work out what had happened.  But the accused had murder charges hanging over their heads for some considerable period, which must have been stressful.  Further, the uncertainty of not knowing one’s fate generally for two-and-a-half years must be onerous.  Finally, it is plain that both accused have used their time well.  Mr Haver has worked when on bail.  Mr Wald has attempted to reform whilst in custody.

92         Further still, in Mr Wald’s case, had the matter been finalized earlier, he would have served less of his cancelled parole, and more of that parole sentence would have been deferred until after the completion of the non-parole period I am about to fix.

93         For those reasons, I regard the delay between the incident and sentencing as of significance in mitigation.

Cancelled parole, ss 15 & 16(3B), exceptional circumstances and totality

94         I turn now to address considerations arising out of the cancellation of Mr Wald’s parole on the County Court sentence.

Cancelled parole sentence served as to about 13 months out of two years

95         Since 29 October 2012, Mr Wald has been in custody continuously after parole was cancelled.  His last 19 months have been spent serving, first, part of the two-year cancelled parole sentence; then the six months for the assault and breach of the registration order; and then more of the cancelled parole sentence.  He has now served about (but slightly more than) 13 months of the parole sentence.  Thus, as of today, about (but slightly less than) another 11 months of the parole sentence remain unserved.

Effect of ss 15 and 16(3B) of the Sentencing Act

96 The combined effect of ss 15 and 16(3B) of the Sentencing Act is that the total effective sentence and non-parole period I impose in a moment will commence today; and that, absent a finding that there are exceptional circumstances and a direction for concurrency, the remaining 11 months of the parole sentence will be wholly cumulative upon that total effective sentence (but not on the non-parole period) and will not commence until that total effective sentence expires.

Exceptional circumstances?

97         Mr Morrissey submitted that I should find that the following combination of factors amounts to exceptional circumstances warranting an order for either whole or partial concurrency between the new sentence and balance of the parole sentence.  First, Mr Morrissey pointed out that, when regard is had to (a) the five years and six months he spent in custody initially for the County Court matter before being granted parole, (b) the six months he served for the subsequent assault and breach of registration order, (c) the 13 months he has already served of the two-year parole sentence and (d) the sentence he will receive on the new charges, Mr Wald will be subject to a very long total period of gaol.  These periods represent a large proportion of a young life.  To add another 11 months to that already long period would be crushing.  Secondly, Mr Morrissey submitted that, whilst Mr Wald did, when on parole, commit the assault, the breach of the registration order and the present offences, he also formed a relationship with his current girlfriend and was working, which, for a person with his deprived history, gives cause for hope.  Thirdly, Mr Morrissey explained that the assault and registration order charges came before court after he had been charged with the murder of his friend.  At that time, he could not sensibly be granted bail or be re-paroled.  Yet his prior convictions were not such that an immediate gaol sentence would have been inevitable.  Thus, submitted Mr Morrissey, had he not been in this invidious position, he might have received a suspended sentence or a non-custodial disposition.

98         Mr Sonnet resisted the submission that there were exceptional circumstances.

99         I accept that the total period of imprisonment will indeed be long, even without the additional 11 months.  But there are no exceptional circumstances otherwise compelling an order for concurrency in respect of the additional 11 months or part thereof.  There may be cases in which the likely sentence for the breaching offence is so short in comparison with the period of parole owed as to amount to exceptional circumstances compelling an order for concurrency, but this is not one of those cases.  Further, it is very encouraging that Mr Wald, whose life has been somewhat deprived, had (and still has) the support of a steady relationship and was working when on parole, but that is not exceptional.  Finally, it is difficult to assess whether he would have been granted bail or re-paroled and given a suspended sentence had he not been facing the murder charge, a charge that ultimately was withdrawn.  In any event, even if I could say those things were likely to have occurred, that would not be exceptional either.  In my view, none of these three matters, whether considered alone or in combination, amounts to exceptional circumstances.

Totality

100       Mr Morrissey’s alternative submission was that these matters went to the issue of totality.  Mr Sonnet accepted that submission was correct.  So do I.

101       It seems a curious thing that one form of relief from the harsh effect of outstanding cancelled parole – namely, an order for concurrency with the new sentence – requires a finding of exceptional circumstances whereas another form of relief – namely, the imposition of a shorter sentence by application of the principle of totality – does not.  But that is the effect of the law.[14] Mr Sonnet cautioned, however, that the latter approach should not be applied in such a way or to such an extent as to defeat the purpose behind s 16(3B). I accept that submission. In that regard, it must also be remembered that to have committed these offences on parole is an aggravating factor in any event.

[14]See, e.g., R v Piacentino; R v Ahmad (2007) VR 501 at 506-507[28], 514[60]-515[64] & 518[78]-520[88] per Eames JA and 529[142] per Nettle and Redlich JJA.

102 Accordingly, I have had regard to the fact that, by operation of s 16(3B) and because I have not found exceptional circumstances and directed concurrency, Mr Wald will have the remaining 11 months of his cancelled parole effectively added to the total effective sentence I impose. Further, I have had regard to the additional considerations urged by Mr Morrissey when assessing that fact and when considering totality generally.

Parity

103       I have also had regard to the principle of parity among co-offenders generally in this case and particularly when considering the sentences to be imposed on Mr Haver and Mr Wald.  All counsel agreed that the matters in Mr Haver’s favour – particularly his lack of prior convictions, better prospects of rehabilitation and the absence of the aggravating factor of offending whilst on parole – should result in lesser sentences for him, despite the additional moderating effects that totality will have in Mr Wald’s case because of his cancelled parole.  I accept those submissions.

Sentencing purposes

104       I turn now to the purposes of sentencing.

General deterrence, denunciation and just punishment

105       In my view, general deterrence, just punishment and denunciation are important considerations in the present case.  Others in the community should understand that anyone who might be minded to act in the way Mr Haver and Mr Wald did, and cause the harm and devastation they caused, will receive significant and just punishment.  The community should also know that the courts will denounce such behaviour, and I do.

106       I have already indicated that there should be a modest reduction in the weight to be given to general deterrence on account of Mr Haver’s particular affliction and that there should be a similar reduction in the weight to be accorded to just punishment in the case of Mr Wald because of his particular affliction.

107       I have also indicated that the extra-curial punishment Mr Haver and Mr Wald have suffered, and will continue to suffer, for killing their friend also reduces the weight to be accorded to just punishment in fixing sentence.

Specific deterrence

108       Specific deterrence is a relevant consideration in respect of the offence of recklessly causing serious injury, and particularly in the case of Mr Wald in view of his prior convictions for violence.  But that sentencing purpose is of less weight than otherwise on account of both Mr Haver and Mr Wald’s pleas of guilty, remorse and prospects of rehabilitation.  I consider specific deterrence to be of virtually no weight in sentencing on the charge of manslaughter given those same factors and the profound remorse Mr Haver and Mr Wald feel for killing their friend.

Protection of the community and rehabilitation

109       Whilst the offending was serious in the ways I have described, the factors just mentioned give me confidence that the weight to be given to other sentencing purposes, including rehabilitation, will produce sentences that protect the community in any event without the need to resort to an additional component in the sentence for community protection.

Parsimony

110 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.  This provision reflects the common law principle of parsimony.  I have applied this principle and this provision when considering sentence.

Current sentencing practices

111       In so far as I can determine them, I have had regard to current sentencing practices for recklessly causing serious injury and manslaughter.

112       Counsel referred to the latest Sentencing Snapshots for these offences.  I also had regard to cases heard in this Court and the Court of Appeal in recent times for such offences.

113       For the period from 2006-07 to 2010-11, the median gaol term imposed in the higher courts for recklessly causing serious injury was two years and six months; and the average (mean) term ranged from one year and 11 months in 2006-07 to two years and ten months in 2009-10.[15]

[15]See Sentencing Advisory Council, Sentencing Snapshot No 126 (June 2012) (“Causing serious injury recklessly”), p 5.

114       For the period from 2007-08 to 2011-12, the median gaol term for manslaughter was eight years; and the average (mean) term ranged from eight years and one month in 2008-09 to seven years and three months in 2010-11.[16]

[16]See Sentencing Advisory Council, Sentencing Snapshot No 141 (May 2013) (“Manslaughter”), p 4.

115       It is almost always difficult usefully to compare sentences imposed in other cases and divine solid information from sentencing statistics, but I found these sources of some assistance.  In the end, however, because of the limits of that process, I was driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences.

Submissions on sentence

116       Mr Sonnet submitted that, in all the circumstances, the offence of recklessly causing serious injury should attract a sentence falling towards the lower to median end of the range of sentences usually imposed.  Mr Kassimatis and Mr Morrissey submitted that the sentence should be around or a bit higher than the statistical median.  As will be seen, the sentences I have determined to impose probably more closely accord with the latter submission.

117       All counsel submitted that the offence of manslaughter should attract a sentence towards the lower end of the range of sentences usually imposed.  As will be seen, I think it is more serious than that, and in each case should attract a sentence around the median.

118       It was submitted that, in fixing the individual sentences and the total effective sentence, I should be astute to the overlapping behaviour giving rise to each offence and be careful to avoid double punishment.  I accept that submission.  The sentence on manslaughter and the total effective sentence, and in consequence the non-parole period, are in each case less than otherwise they would be on account of this overlap.

119       Further, all counsel submitted that, whilst allowances must be made for totality, there should be some cumulation of the sentence for recklessly causing serious injury upon the sentence for manslaughter.  I agree.  I also reiterate that totality has an additional and special role to play in the case of Mr Wald, given the implications for him of his cancelled parole.

120       Mr Kassimatis submitted that the impressive combination of factors in mitigation would justify the fixing of a substantial gap between the non-parole period and the total effective sentence in order best to foster Mr Haver’s rehabilitation.  I accept that submission.

121       I think the same course is justified in Mr Wald’s case, for two reasons.  First, he has some impressive mitigating factors too, albeit he has relevant prior convictions and lesser prospects of rehabilitation.  Secondly, because he has spent, and will continue to spend, a very large proportion of his young life in gaol, and yet because he must be released at some point as well, care must be taken not to institutionalize and crush him.  Rather, there must be some relief from those long terms of imprisonment in order to foster his rehabilitation.  If instead of being institutionalized and crushed Mr Wald is ultimately rehabilitated, that will redound to the benefit of the community.

ALAN ARMSTRONG

122       I turn now to the matter of Alan Armstrong.  Mr Johns appeared on behalf of Mr Armstrong on his plea in mitigation.

Nature and gravity of the offence

123       Incitement to commit intentionally causing injury carries a maximum penalty of ten years’ imprisonment.[17]  Incitement of this type can be a relatively serious offence.  Whilst the connection between this charge and the more serious charges concerning Anthony Armstrong’s death meant that it was sensible and appropriate that the charge be heard in this Court, the fact is it could have been dealt with by way of summary hearing in the Magistrates’ Court.

[17]See ss 18 and 321I(1)(a) of the Crimes Act 1958 (Vic).

124       It is not clear whether Mr Armstrong suggested to his son that the bashing should occur in the dead of night at Mr Delmo’s house, but he did say that he should take two others and weapon.  I accept that Mr Delmo’s threatening behaviour means that Mr Armstrong’s behaviour was not unexplained violence, and that he had tried the lawful route of taking out an intervention order before acting illegally.  But he simply should not have taken the law into his own hands.

125       To my way of thinking, the most serious feature of this offence also relates to the most important matter in mitigation.  In my view, the offence was made all the more serious because Mr Armstrong incited his own son to commit the assault on Mr Delmo.  Instead of enlisting his son to fight his battles in a criminal way, Mr Armstrong should have been steering him away from criminal behaviour.  True it is that he said the weapon was not to be used.  And, yes, his son was not a teenager; rather, he was a 24-year-old who could make up his own mind whether or not to accede to his father’s request.  But he was a young man who had not long since been released from gaol.  It was grossly irresponsible to urge his son to bash another person.

126       I regard this as a serious example of incitement to commit the offence of intentionally causing injury because Mr Armstrong’s moral culpability is so high.

Mitigating factors

Extra-curial punishment

127       At the same time, the most important mitigating factor is this:  Whilst Mr Armstrong’s offence does not involve any criminal responsibility for his son’s death and, accordingly, he must not be punished in any way by the criminal law for that awful outcome, he has already suffered, and for the rest of his life will suffer, perhaps the heaviest form of punishment that could be inflicted on any parent.  His child is dead.  His son died doing what he asked him to do.  For the rest of his days, Mr Armstrong will feel profoundly morally responsible for his son’s death.  And he will miss him, terribly.

Plea of guilty

128       Secondly, Mr Armstrong pleaded guilty.  The plea was entered soon after the Director withdrew the more serious charges and preferred the current charge.  Mr Sonnet accepted that the Crown case relied principally on Mr Tsaousidis and Ms Wright, whose evidence would have attracted strong unreliability warnings.  Thus, the plea of guilty is to be regarded as entered at an early stage and in circumstances where a plea of not guilty would have been an understandable course to take.  For those reasons, the plea of guilty is a substantial mitigating factor.

Remorse

129       The third factor in mitigation is remorse.  I am satisfied that Mr Armstrong is remorseful for his crime.  It is true that he denied involvement to others and the police, but that is understandable in the circumstances.  It would have been difficult to admit involvement in these events for fear of being accused of the murder of his own son, which is precisely what happened.  Further, the plea of guilty was entered at an early stage when some in his position might have run a trial.  Finally, the Director accepts that Mr Armstrong is remorseful.

Absence of prior convictions

130       The fourth factor in mitigation is that, at age 63, Mr Armstrong has no prior convictions.  He is to be treated as a person of previously unblemished character.

Prospects of rehabilitation

131       Fifthly, I am satisfied that, given Mr Armstrong’s age, lack of prior convictions, plea of guilty and remorse, he has excellent prospects of rehabilitation.  Further, Mr Armstrong worked hard all of his life until he suffered a workplace injury in 2006.  He is now on a disability pension.  He has some ailments but is in reasonable health.

Delay

132       The sixth factor in mitigation is the effect of the delay between the offence and sentence.  The general remarks I made in respect of Mr Haver and Mr Wald on delay apply equally to Mr Armstrong.  He was facing a charge of murdering his own son until the conclusion of the committal proceedings.  Further, he spent almost three months in custody on that charge before being granted bail.  That would have been a very heavy burden.  The uncertainty of outcome would have placed an even greater strain on him for all of the two-and-a-half years given that he has been grieving over the death of his son during that period.  Thus, I consider delay to be of significance in mitigation his case.

Sentencing purposes

133       I turn now to the purposes of sentencing.

General deterrence, denunciation and just punishment

134       In my view, general deterrence and denunciation are important considerations in the present case.  Others in the community should understand that anyone who might be minded to act in the way Mr Armstrong did will receive significant and just punishment.  The community should also know that the courts will denounce such behaviour, and I do.

135       I have already indicated that the extra-curial punishment Mr Armstrong has suffered, and will continue to suffer, also reduces the weight to be accorded to just punishment in fixing sentence.

Specific deterrence

136       I consider there is no need for specific deterrence in Mr Armstrong’s case given his plea of guilty, remorse, lack of prior convictions and excellent prospects of rehabilitation, as well as the profound effect of the extra-curial punishment he has already suffered and will continue to suffer.

Protection of the community and rehabilitation

137       As in the cases of Mr Haver and Mr Wald, so too in Mr Armstrong’s case I am of the view that, whilst this is a serious example of incitement, the factors just mentioned give me confidence that the weight to be given to other sentencing purposes, including rehabilitation, will produce a sentence that protects the community in any event without the need to resort to an additional component in the sentence for community protection.

Parsimony

138 I mentioned s 5(3) of the Sentencing Act earlier.  Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement of the offender.  This provision also reflects the common law principle of parsimony.  I have applied this principle and this provision when considering sentence.

Current sentencing practices

139       Mr Sonnet provided me a summary of recent cases on incitement generally in order to assist in determining current sentencing practices for incitement to commit the offence of intentionally causing injury.  As Mr Sonnet explained, the truth is, little is known about such practices, if there are any, for two reasons.  First, such offences are rarely charged.  Secondly, when charged, the charge usually would be heard in the Magistrates’ Court.  Mr Sonnet did, however, refer me to sentencing information in respect of the substantive offence of intentionally causing injury.

140       In the end, I was driven to rely almost exclusively on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence.

Submissions on sentence

141       After being charged initially with murder, Mr Armstrong spent 81 days in custody before being granted bail.

142       Mr Sonnet submitted that, in all the circumstances, it would be open to impose a wholly or partly suspended sentence of imprisonment.  If a partly suspended sentence were imposed, it would be open to suspend all but the period Mr Armstrong had already spent in custody on remand.

143       Mr Johns submitted that a prison sentence was not necessarily required but that, if I thought it was, then a straight sentence for the period Mr Armstrong spent on remand would be sufficient.  In the further alternative, he adopted Mr Sonnet’s submission.

144       At the conclusion of the plea, I indicated to the parties that I would not be imposing a sentence that required Mr Armstrong to be returned to prison.

ADALIA OTTOBRE

145       I turn now to the matter of Adalia Ottobre.  Mr Pearson appeared for Ms Ottobre on her plea in mitigation.

Nature and gravity of the offences

Accessory after the fact

146       The version of Ms Ottobre’s offence of being an accessory after the fact (or “assisting an offender”) – namely, being an accessory after the fact to recklessly causing serious injury (believing Mr Haver had committed intentionally causing injury) – carries a maximum penalty of five years’ imprisonment.[18]   As in the case of Alan Armstrong’s offence of incitement, so too in the case of Ms Ottobre’s offence of being an accessory after the fact, whilst the connection between this charge and the more serious charges concerning Anthony Armstrong’s death means that it was sensible and appropriate that the charge be heard in this Court, the fact is it could have been dealt with by way of summary hearing in the Magistrates’ Court.

[18] See ss 18 and 325(4)(b) of the Crimes Act 1958 (Vic).

147       Nevertheless, I accept Mr Sonnet’s submission that the provision of a statement providing a false alibi and false information about the whereabouts of the missing gun amounts to a relatively serious example of this offence.  I do not doubt that Ms Ottobre felt an obligation of loyalty to Mr Haver.  After all, he was (and remains) her partner and had been since they were very young.  I also accept that she was very much dependent on her partner.  She was, of course, entitled to say nothing.  Instead of exercising that right, however, she positively sought to deflect police away from investigating Mr Haver in respect of a serious matter.

Possession of unregistered firearms

148       A first of offence of possession of an unregistered category A or B longarm carries a maximum penalty of two years’ imprisonment or 120 penalty units.[19]  Usually, offences of this nature are dealt with in the Magistrates’ Court.

[19]See s 6A(1) of the Firearms Act 1996 (Vic).

149       This is a minor offence.  Ms Ottobre has held a shooter’s licence for many years without incident.  She had other guns on the premises that were registered.  There is no suggestion that any of the guns found had been misused.  Mr Pearson’s instructions are that the guns were owned by Mr Haver’s father and were stored at their house.

Subsequent criminal history

150       Ms Ottobre does not have any prior convictions but she does have two subsequent convictions.  First, on 27 May 2013, she was arrested on charges of drug trafficking and related offences and remanded in custody.  On 1 July 2013, she pleaded guilty to those charges in the Magistrates’ Court and was sentenced to 88 days’ imprisonment to be followed by a community correction order (“CCO”) of 12 months’ duration.  Ms Ottobre was released on 22 August 2013.

151       Secondly, she was charged with breaching the CCO because of her failure to comply with the order.  On 8 April 2014, she pleaded guilty to that charge.  The magistrate extended the CCO for a period of six months commencing 22 August 2014.  Thus, the order is now due to expire on 22 February 2015.

Mitigating factors

152       I turn now to the mitigating factors urged on behalf of Ms Ottobre.

Plea of guilty

153       First, Ms Ottobre pleaded guilty.  The plea was entered soon after the Director withdrew the more serious and numerous charges and preferred the current charges.  Thus, the plea of guilty is to be regarded as having been entered at an early stage.

Remorse

154       Secondly, I am satisfied that Ms Ottobre’s plea of guilty evidences remorse for her offending.  The Director accepts that Ms Ottobre is remorseful.

Absence of prior convictions

155       Thirdly, as I have said, Ms Ottobre has no prior convictions.  She is to be treated as a person of previously unblemished character at the time of committing these offences.

Prospects of rehabilitation

156       Fourthly, I am satisfied that, given Ms Ottobre’s lack of prior convictions, plea of guilty, remorse, educational level, plans for future studies, employment history, stable relationship with Mr Haver and family support, she has very good prospects of rehabilitation.

157       Her prospects have been dented somewhat by her subsequent offending.  Mr Pearson tendered a report by forensic psychologist Gina Cidoni (Exhibit 5) and a report by the Office of Corrections in respect of the breach of CCO (Exhibit 2).  Ms Cidoni explained that, after Mr Haver was arrested, Ms Ottobre suffered a decline in her mental health as result of her partner’s absence, resulting financial and emotional strain and the loss of their home.  She was using illicit drugs which she financed by drug trafficking.  Ms Cidoni said that, as of March 2014, Ms Ottobre reported that she had remained “largely abstinent from drugs for the past few months”.

158       Mr Pearson explained that, when Ms Ottobre was released from gaol to commence the CCO in August 2013, Mr Haver was still in custody.  After he was released briefly when discharged on murder at the committal in September 2013, Mr Haver was returned to custody again for a period before being granted bail in November 2013.  By that time, Ms Ottobre had incurred several failures to comply with the CCO and the authorities had decided to commence breach proceedings.

159       Ms Cidoni is of the view that Ms Ottobre is heavily dependent upon Mr Haver for her emotional stability, and is in need of counselling to address that issue and her mental health generally.

160       It is to be hoped that the extended CCO will help Ms Ottobre address her difficulties over the next several months, and that she will take up any such assistance that might be offered.

Delay

161       Fifthly, the effect of the delay between the offence and sentence is a mitigating factor in Ms Ottobre’s case as well.  The general remarks I made in respect of Mr Haver and Mr Wald on delay apply equally to Ms Ottobre.  She was facing a charge of accessory after the fact to murder until relatively recently.  Ms Cidoni reports that Ms Ottobre still remains highly distressed over the possible outcome of her partner’s criminal proceedings, as well as her own.  Thus, whilst she has not used the period of delay as wisely as others have, I still consider delay of significance in Ms Ottobre’s case.

Sentencing purposes

General deterrence, denunciation and just punishment

162       As for sentencing purposes, in my view, general deterrence, just punishment and denunciation are important considerations in respect of the offence of being an accessory after the fact.  Others in the community should understand that anyone who might be minded to act in the way Ms Ottobre did will receive significant and just punishment.

163       The community should also know that the courts will denounce such behaviour, and I do.

Specific deterrence

164       Whilst specific deterrence is also an important consideration when sentencing for being an accessory after the fact, I have given that factor less weight than otherwise on account of Ms Ottobre’s lack of prior convictions, plea of guilty, remorse and family support.

Protection of the community and rehabilitation

165       As in the cases of Mr Haver, Mr Wald and Mr Armstrong, so too in Ms Ottobre’s case I am of the view that, whilst this is a serious example of being an accessory after the fact to recklessly causing serious injury, the factors just mentioned give me confidence that the weight to be given to other sentencing purposes, including rehabilitation, will produce a sentence that protects the community in any event without the need to resort to an additional component in the sentence for community protection.

Parsimony

166       I have applied the principle of parsimony when fixing sentence.

[85] See Depositions, at 832-848, 1496-1497

[94]ROSS also located a small amount of particles consistent with GSR on the hands of DELMO.  The composition and shape of these particles were similar to many of the particles found on the deceased's hands.  The finding of these particles on DELMO demonstrates that he was present at the time the firearm was discharged.

[95]Leading Senior Constable Alan PRINGLE, a forensic officer from the Ballistics Unit, also conducted a series of tests.  PRINGLE found that the deceased was shot at close range and that the wounds were not self-inflicted.[86]

[86] See Depositions, at 227-286, 1206-1304

SEARCH OF THE HAVER AND OTTOBRE PREMISES

[96]On Friday, 27 April 2012, investigators from the Homicide Squad executed a search warrant at 3 Zebrafinch Court, Carrum Downs. This property is the residential dwelling of HAVER and OTTOBRE. 

[97]Investigators were unable to locate an Eibar “Marixa” model 12 gauge side-by-side shotgun, serial number 10206, registered to OTTOBRE.  The Crown case is that the missing 12 gauge side-by-side shot gun registered to OTTOBRE was the firearm which killed the deceased.

DISCOVERY OF SHOTGUN AND BASEBALL BAT

[98]On 23 January 2013 the missing Eibar ‘Marixa’ 12 gauge side-by-side shotgun, serial number 10206, registered to OTTOBRE, and a ‘Regent’ brand silver aluminium baseball bat with no hand grip, were found under a footbridge that crosses over the Five Mile Creek at the ‘Woodend Children’s Park’ in Woodend.[87]  The shotgun and baseball bat were in a Target bag along with a sledge hammer and a shotgun cleaning rod.  The barrel and trigger guard assembly had been separated and the firearm had been partially disassembled and was missing the stock.  The bag had been secured and wrapped in wire.[88]

[87] See Depositions, at 1694-1696

[88] See Depositions, at 1802-1804, 1805-1809

[99]     It is the Crown case that the recovered shotgun and baseball bat were used in the shooting of the deceased and assault on DELMO.

[100]Analysis of cellular tower activity indicates that on 27 December 2011, HAVER and OTTOBRE returned from Tasmania to Victoria. At approximately 7:25 p.m. that evening, HAVER departs from Carrum Downs and travels towards Woodend.  HAVER is in the area for a total of approximately 6 hours before returning to Carrum Downs at around 5.00 a.m.

[101]It is the Crown case that HAVER disposed of the Eibar ‘Marixa’ shotgun and the ‘Regent’ silver aluminium baseball bat in the Five Mile Creek at Woodend.

SUMMARY OF TELEPHONE INTERCEPTS

[102]On 4 April 2012, investigators from the Homicide Squad commenced monitoring WALD’s mobile telephone number 0423 624 116 via telephone intercept warrant numbered D04259-00 and HAVER'S mobile telephone number 0433 798 081 via telephone intercept warrant numbered 04260-00.

[103]The following is a brief summary of some of the evidence obtained through the use of monitoring the mobile telephone intercepts:

Thursday 5 April 2012:

WALD calls Adam TSAOUSIDIS and discusses how he is being called a murderer over the death of the deceased. WALD says that he did not shoot the deceased and if he did he would have done a runner.[89]

[89] See Telephone Intercept D04259 Call Sequence 371; Depositions, at 2499-2503

Saturday 7 April 2012:

WALD sends WHETTON an SMS text message and explains that he wishes he was shot instead of the deceased, that way people won’t be calling him names.[90]

[90] See Telephone Intercept D04259 Call Sequence 744; Depositions, at 2516

Thursday 19 April 2012:

HAVER calls a female person and explains that he is not good and that shit has been bad for weeks.  HAVER explains that he has had to hide for a couple of weeks and that he is stressed.[91]

[91] See Telephone Intercept D04260 Call Sequence 1165; Depositions, at 2763-2764

Saturday 21 April 2012:

WALD calls WHETTON and explains that he has done nothing wrong and does not know why the police can’t see that.[92]

[92] See Telephone Intercept D04259 Call Sequence 2095; Depositions, at 2560-2562

Tuesday 15 May 2012:

HAVER receives a call from WALD.  WALD is utilising a different mobile telephone number being 0416 506 368.  OTTOBRE answers the phone and speaks to WALD. WALD wants to speak to HAVER and states that he needs to meet him tonight.  WALD arranges with OTTOBRE to meet HAVER in Frankston as soon as he returns home.[93]

[93]See Telephone Intercept D04260 Call Sequence 2802; Depositions, at 2809-2810

Sunday 27 May 2012:

WALD calls Matthew KNOWLES.  WALD tells Matthew KNOWLES that he needs to have a chat to his ex-girlfriend TERRANOVA as he just met her and that she told him that she is going to make a statement to police against him.  WALD then makes a comment that he has no involvement in it anyway.   Matthew KNOWLES is confused as to why people are making statements if they were not there when the deceased was killed.  WALD explains that he wasn’t even there.[94]

[94] See Telephone Intercept D04259 Call Sequence 4379; Depositions, at 2707-2712

WALD receives a phone call from Matthew KNOWLES.  WALD continues to explain that he has no involvement in it.[95]

[95] See Telephone Intercept D04259 Call Sequence 4381; Depositions, at 2713-2715

Tuesday 29 May 2012:

WALD tries to call HAVER.  WALD later has a conversation through a series of telephone calls with HAVER.  The two arrange to meet up later that day at the Langwarrin Pub.  WALD explains that things are not really right.[96]

[96] See Telephone Intercept D04259 Call Sequence 4569, 4570, 4571, 4575, 4593, 4594, 4595; Depositions, at 2741, 2742, 2743, 2744, 2745, 2746, 2747

[104]On the 4 June 2012, investigators from the Homicide Squad recommenced monitoring WALD's mobile telephone number 0423 624 116 via telephone intercept warrant numbered D04303-00 and HAVER's mobile telephone number 0433 798 081 via telephone intercept warrant numbered D04302-00.

[105]The following is a brief summary of some of the evidence obtained through the use of monitoring the mobile telephone intercepts:

Wednesday 6 June 2012:

WALD calls WHETTON and explains to her how he met with Matthew KNOWLES and that he spun shit to him. WALD explains that he was asked if he was there and he then told the truth that he was not there that night (when the deceased died).

Friday 8 June 2012:

HAVER receives a call from OTTOBRE. The two discuss OTTOBRE’s arrest by the Homicide Squad. HAVER informs OTTOBRE that they have done nothing wrong and that they will not point the police in the right direction.[97]

[97] See Telephone Intercept D04302 Call Sequence 116; ; Depositions, at 2831-2838

HAVER receives a call from OTTOBRE. The two discuss the recent arrest of OTTOBRE.  HAVER tells OTTOBRE that they had no involvement in it (the death of the deceased) and that it is up to the police to prove.[98]

[98] See Telephone Intercept D04302 Call Sequence 127; Depositions, at 2839-2841

Sunday 10 June 2012:

WALD has a conversation through a series of SMS text messages with FERRIF.  FERRIF accuses WALD of being a ‘murderer’ as he left the deceased to die on the road.  FERRIF tells WALD that it does not matter if he pulled the trigger or not because he had the deceased’s life in his hands.  WALD explains that he was not there that night.[99]

[99] See Telephone Intercept D04303 Call Sequence 590-665; Depositions, at 2904-2980

Saturday 16 June 2012:

WALD calls HAVER.  The two men have a general conversation about WALD’s new vehicle.  WALD explains to HAVER that he is still wary about the other shit (Homicide investigation into the deceased's death).  HAVER tells WALD that they will be sweet.[100]

[100] See Telephone Intercept D04303 Call Sequence 1243; Depositions, at 2997-3002

Monday 18 June 2012:

WALD calls WHETTON.  They have a general conversation.  They later discuss the night the deceased was shot dead and WHETTON suggests that maybe it was Graham STEVENS that accidently shot the deceased.  WALD tells WHETTON that STEVENS is admitting to everyone that he was there (when the deceased was shot dead).  WALD states that he is glad that he was not there.[101]

[101] See Telephone Intercept D04303 Call Sequence 1167; Depositions, at 2986-2996

Thursday 21 June 2012:

WALD has a conversation through a series of SMS text messages with FERRIF on mobile telephone number 0433 077 292.  WALD explains to FERRIF that he wants to die and needs someone to help him.  FERRIF asks WALD why he keeps lying about everything that happened last year (the deceased's death).  WALD explains that he is a compulsive liar, he made everything up and that he wanted to feel cool.[102]

[102] See Telephone Intercept D04303 Call Sequence 1911, 2013-2015, 2018-2035; Depositions, at 3028-3030, 3031-3047

Saturday 23 June 2012:

WALD sends a SMS text message to FERRIF.  WALD explains to FERRIF that he wants to be left alone and that he was not even there.  WALD explains that he (the deceased) wasn’t a dog and that he would not want anyone else to be a dog.  WALD further explains that he only knows what he read in the papers (about the deceased's death).[103]

[103] See Telephone Intercept D04303 Call Sequence 2343; Depositions, at 3083

[106]On Tuesday, 17 April 2012, investigators from the Homicide Squad commenced monitoring a listening device installed at 3 Zebrafinch Court, Carrum Downs via warrant numbered VP1477-00.  This property is the residential dwelling of HAVER and OTTOBRE.

The following is a brief summary of some of the evidence obtained through the monitoring of the listening device:[104]

[104] See Depositions, at 3109-3138

Friday 27 April 2012:

[On Friday, 27 April 2012, Homicide Squad investigators execute a search warrant at 3 Zebrafinch Court, Carrum Downs.]

HAVER returns home and has a lengthy conversation with OTTOBRE about the execution of the search warrant.  During this conversation OTTOBRE is explaining to HAVER how investigators were showing her photographs of the missing shotgun. OTTOBRE is struggling to remember the make of the shotgun; HAVER is then heard saying ‘Marixa’.[105]

[105] See Listening Device VP1477-00 – Chapter 3

Sunday 29 April 2012:

HAVER and OTTOBRE are discussing the deceased.  HAVER informs OTTOBRE that he spoke to the deceased that night, but he was in Carrum Downs.  HAVER indicates that he knew the deceased was up to no good.[106]

[106] See Listening Device VP1477-00 – Chapter 4

RECORDS OF INTERVIEW

[107]WALD was interviewed by police on 11 January 2012.[107]  He made a “no comment” interview.

[107] See Depositions, at 3375-3387

[108]HAVER was interviewed by police on 27 April 2012.[108]  He made a “no comment” interview.  HAVER was further interviewed by police on 17 December 2012.[109]  Again he made a “no comment” interview.

[108] See Depositions, at 3389-3400

[109] See Depositions, at 3469-3487

ANNEXURE 3

IN THE SUPREME COURT OF VICTORIA  
AT MELBOURNE   

No: C1208817.4 & C13508653.1

DIRECTOR OF PUBLIC PROSECUTIONS

- v -

ADALIA OTTOBRE

PART A – PROSECUTION OPENING ON PLEA

Date of document:  31 March 2014
Filed on behalf of:  D.P.P.
Prepared by:  Angela Rankin 
Craig Hyland  Solicitor’s code: 7539  
Solicitor for Public Prosecutions  Telephone: [phone]
565 Lonsdale Street  Direct: 9603 7555

Melbourne Vic 3000  Reference: 1206993  

CRIMINAL PROCEEDINGS

[1]       On 17 December 2012 Victoria Police charged ADALIA OTTOBRE with the following offences: attempting to pervert the course of public justice, assist offender, possessing an unregistered category A or B longarm, possessing a drug of dependence and cultivating a drug of dependence.

[2]On 5 August 2013 a committal hearing (10 days) was conducted at the Melbourne Magistrates’ Court before Magistrate Garnett.  On 10 September 2013 OTTOBRE was committed on all indictable charges.[110]

[110] See Reasons for Decision - DPP v Armstrong & Ors, Magistrates’ Court (S Garnett), 10 September 2013

[3]On 25 September 2013 Indictment No: C1208817 was filed in the Supreme Court at Melbourne preferring the following:

·charge 1 – Murder (section 3A) – HAVER & WALD

·charge 2 – Intentionally causing serious injury (section 16) – ARMSTRONG, HAVER & WALD

·charge 3 – Recklessly causing serious injury (section 17) – ARMSTRONG, HAVER & WALD

·charge 4 – Assist offender (section 325) – OTTOBRE.

In addition, Indictment No: C13508653 was filed in the Supreme Court at Melbourne preferring the following:

·charges 1, 2, 3 & 4 – Possessing an unregistered category A or B longarm (section 6A(1), Firearms Act 1996) – HAVER & OTTOBRE

·charge 5 – Possessing a drug of dependence (section 73, Drugs, Poisons & Controlled Substances Act 1981) – HAVER & OTTOBRE

·charge 6 – Cultivating a drug of dependence (section 72B, Drugs, Poisons & Controlled Substances Act 1981) – HAVER & OTTOBRE.

[4]A trial date in the Supreme Court at Melbourne was fixed for 24 April 2014. 

[5]On 20 December 2013 the matter was listed for Mention and then set down for pre-trial legal argument on 20 January 2014.

[6] On 20 January 2014 Indictment No: C1208817.1 was filed over preferring the following:

·charge 1 – Incitement (section 321G) – ARMSTRONG

·charge 2 – Intentionally causing serious injury (section 16) – HAVER & WALD

·charge 3 – Recklessly causing serious injury (section 17) – HAVER & WALD

·charge 4A – Murder (common law) – HAVER & WALD

·charge 4B – Murder (section 3A) – HAVER & WALD

·charge 5 – Assist offender (section 325) – OTTOBRE.

[7]However, plea negotiations ensued and the matter eventually settled with OTTOBRE indicating (and the Crown accepting in full satisfaction) a plea to 1 charge of assist offender and 1 rolled-up charge of  possessing an unregistered category A or B longarm.

[8]On 22 January 2014 Indictment No: C1208817.4 was filed over preferring the following:

·charge 1 – Assist offender (section 325, Crimes Act 1958) – OTTOBRE.

In addition, Indictment No: C13508653.1 was filed over preferring the following:

·charge 1 – Possessing an unregistered category A or B longarm (section 6A(1), Firearms Act 1996) – OTTOBRE.

[9]The accused was arraigned, entered the respective pleas of Guilty, and the matter then set down for a Plea hearing on 31 March 2014.  This was later adjourned to 28 April 2014.[111]

[111] OTTOBRE will admit a Criminal Record at her plea hearing

BAIL / REMAND HISTORY

[10]OTTOBRE was arrested on 17 December 2012 and remanded into custody.  On 18 December 2012 OTTOBRE was released on bail at the Melbourne Magistrates’ Court.  Thus, PSD = 2 days.

CRIMINAL LIABILITY

[11]In relation to Indictment No: C1208817.4, (assist offender), the Crown case is that OTTOBRE between 22 December 2011 and 27 April 2012 knew or believed HAVER (her partner) had, in company with Anthony ARMSTRONG and WALD, intentionally caused injury to Stephen DELMO, and then did acts with the purpose of impeding the apprehension of HAVER (who had, in company, recklessly caused serious injury to DELMO). 

The primary act relied upon by the Crown is the provision of a false alibi for HAVER.

Note: the particularisation of this charge differs from that contained in Indictment No: C1208817 and Indictment No: C1208817.1 (referenced to murder).

[12]In relation to Indictment No: C13508653.1, (possession of unregistered longarms), the Crown case is that OTTOBRE on 27 April 2012 possessed unregistered category A or category B longarms, namely (i) a Winchester Model 53 firearm (serial number 6441); (ii) a bolt-action .303 rifle; (iii) a Winchester 1892 Daisey rifle (serial number 622715) and (iv) a side-by-side shotgun.

ACCUSED

[13]Adalia OTTOBRE was born on 21 October 1982.  At the time of the offending she was 30 years of age and residing with HAVER.

OVERVIEW – ASSAULT ON DELMO

[14]At approximately 2.55 a.m. on Thursday, 22 December 2011, the body of Anthony Robert ARMSTRONG (“the deceased”) was located at the intersection of Hastings Road and Clarendon Street, Frankston.  The deceased was discovered lying on his back; he had sustained two gun shot wounds to the left side of his chest.

[15]Victoria Police commenced an investigation into the shooting of the deceased code-named “Operation Adjutant”.

[16]The Crown case is that Alan ARMSTRONG convinced the deceased to attend 1123 Frankston-Flinders Road, Somerville with the intent to injure Stephen DELMO as a result of animosity between the two men.  As a direct result of Alan ARMSTRONG’s counsel, the deceased recruited the assistance of his friends WALD and HAVER.

[17]At approximately 2.39 a.m. on Thursday, 22 December 2011, the deceased in company with Michael Scott WALD and Tyson John HAVER attended 1123 Frankston-Flinders Road, Somerville.  The three men attended this address armed with a baseball bat and a loaded shotgun; and they attended this address for the purpose of assaulting the occupier Stephen DELMO.

[18]Shortly after arriving at 1123 Frankston-Flinders Road Somerville, the three men were disturbed by DELMO as they approached the rear bungalow where DELMO slept.  DELMO gave chase and confronted the three men in the front yard of the premises.  DELMO was seriously assaulted with the baseball bat in the front yard and forced to his knees. 

[19]It was at this stage that the firearm was called for and produced by either HAVER or WALD (the Crown is unable to say who).  Both barrels of a double-barrelled shot gun were then discharged, shooting the deceased in the chest – as to how the discharge occurred, and in what circumstances, again the Crown is simply unable to say.

[20]DELMO managed to break free and ran off, taking refuge inside his house and called ‘000’.  The deceased was subsequently transported by WALD and HAVER to the location where his body was discovered.

[21]As a result of the assault on DELMO, Alfred Hospital and the Somerville Village Clinic records reveal that he sustained the following injuries – a fractured left hand, a laceration to the left temple area requiring six stitches, bruising to the scalp and left knee along with ongoing dizziness and constant pain in his left knee and left hand.

[22]Victoria Police investigators later recovered the following weapons – an Eibar ‘Marixa’ model 12 gauge side-by-side shot gun which is said to be the weapon that shot the deceased and a ‘Regent’ brand silver aluminum baseball bat that was used in the assault against DELMO.

AFTERMATH AFTER ASSAULT

[23]At 2.49 a.m., HAVER contacts OTTOBRE and the two have a 34 second conversation with each other.

[24]At 3.09 a.m., HAVER contacts OTTOBRE and the two have a 93 second conversation with each other.

[25]On the morning of the deceased's death, Alyce MADDOCKS received a phone call from WALD and subsequently met him at the Caltex Service Station in Seaford.[112]  WALD told her that the deceased had been fatally shot and that he had been left outside the hospital.  WALD would not reveal any information apart from saying “something went wrong”.

[112] See Depositions, at 372-458, 1337-1345

[26]Not long after WALD receives a telephone call from OTTOBRE and MADDOCKS overhears parts of the conversation.  MADDOCKS hears OTTOBRE warn WALD that the media were starting to get wind of what had happened.

[27]In the days following the deceased's death MADDOCKS receives a text message from OTTOBRE. In this text message OTTOBRE informs MADDOCKS that HAVER was “beside himself” as a result of the event.  Both HAVER and OTTOBRE then fell out of contact with the deceased’s friends.

[28]Danielle STONER first learnt of the deceased’s death through Elise BARNARD.[113]  BARNARD told her that the deceased shot himself and that he was with WALD when it happened.

[113] See Depositions, at 518-563, 1374-1384

[29]STONER immediately contacted HAVER and questioned him as to what happened to the deceased. HAVER and OTTOBRE explained that the deceased had shot himself.

[30]The Crown relies on the above conversations to demonstrate the knowledge of OTTOBRE as to the assault on DELMO by HAVER, WALD and the deceased.

SEARCH OF HAVER AND OTTOBRE PREMISES

[31]On Friday, 27 April 2012, investigators from the Homicide Squad executed a search warrant at 3 Zebrafinch Court, Carrum Downs. This property is the residential dwelling of HAVER and OTTOBRE. 

[32]OTTOBRE is the holder of a Category A and B firearms licence numbered 74948730B. According to the Licensing and Registration System, OTTOBRE is the registered owner of the following firearms which were required to be securely stored at her residential address:[114]

[114] See Depositions, 1799, 1801

·Eibar 'Marixa' model 12 gauge side-by-side shotgun, serial number 10206

·Nikko 12 gauge under and over shotgun, serial number 302251

·Tikka center-fire .223 Remington, serial number 759444; and

·Anschutz .22 rim-fire rifle, serial number 1287577.

[33]Upon entry to the premises, police asked OTTOBRE whether she had any unsecured firearms in the house to which she replied “no”.[115]

[115] See Depositions, at 1469

[34]During the search investigators located and seized 3 of the 4 registered firearms referred to above.

[35]Investigators also seized an unregistered side-by-side shotgun which was found lying on a sofa just inside the front door.  Three unregistered firearms [Winchester Model 53 firearm (serial number 6441); a bolt-action .303 rifle; and a Winchester 1892 Daisey rifle (serial number 622715)] were also hidden in a basement area under the house. This forms the basis of charge 1 on Indictment No: C13508653.1.

POLICE STATEMENT

[36]OTTOBRE provided a statement to investigating police.[116]  This statement was false in two material particulars - this forms the primary basis of charge 1 on Indictment No: C1208817.4.

[116] See Depositions, at 3519-3533

[37]Investigators were unable to locate the Eibar “Marixa” model 12 gauge side-by-side shotgun, serial number 10206, registered to OTTOBRE. OTTOBRE explained to investigators that she last used the shot gun in about January or February 2012 and that it could be at a relative’s house.[117]  The Crown case is that the missing 12 gauge side-by-side shot gun registered to OTTOBRE was the firearm which killed the deceased and that OTTOBRE knowingly lied in her explanation in relation to its whereabouts.

[117] See Depositions, at 563-80, 1385-1391

[38]OTTOBRE stated that on Wednesday 21 December 2011, or Thursday 22 December 2011, she and HAVER flew to Hobart, Tasmania.  OTTOBRE stated that the night before leaving for Tasmania, she collected HAVER from a work friend ‘Scott’ whose surname she does not recall. OTTOBRE stated that she picked HAVER up from a house in Frankston at about midnight.  She and HAVER arrived home at about 12.30 a.m. where they slept until about 3.30 a.m. and left for the airport soon after.

[39]Investigators confirmed that at 8.15 a.m. on Thursday 22 December 2011, HAVER and OTTOBRE boarded a Jetstar flight from Melbourne to Hobart.  HAVER and OTTOBRE were originally booked to leave Melbourne on a Jetstar flight that was scheduled to depart Melbourne at 6.50 a.m., however at approximately 6.30 a.m. they were moved to a later flight.  The Crown case is that the change of flight was as a direct result of HAVER’s involvement in the deceased’s death in the early hours of 22 December 2011; thus they were unable to arrive at the airport in time for the 6.50 a.m. flight.

FALSE ALIBI

[40]HAVER’s employer was Gathercole Meat and Exports.[118]  David CUNNINGHAM, General Manager, stated that HAVER worked for the company and was considered a hard-working and reliable employee.  HAVER was granted leave to travel to Tasmania from 21 December 2011 to the 28 December 2011. Upon his return from Tasmania HAVER's work ethic and attendance deteriorated so much so that on 16 March 2012 he was terminated after nine years employment.  CUNNINGHAM stated that HAVER barely worked an entire week since returning from Tasmania.

[118] See Depositions, at 1672-1675

[41]CUNNINGHAM further stated that the only ‘Scott’ to work with HAVER in December 2011 was a former employee named Scott BALL.

[42]Scott BALL was a former work mate of HAVER.[119]  BALL is not close with HAVER and did not socialise with him outside of work.   BALL stated HAVER was never invited to his place to socialise or drink beer.

[119] See Depositions, at 1676-1677

[43]The Crown case is that OTTOBRE had knowledge and reason to believe that HAVER and WALD were involved in the assault on DELMO, which also resulted in the death of the deceased. OTTOBRE intentionally provided a false alibi for HAVER on 22 December 2011 in order to impede his apprehension, prosecution and conviction.

DISCOVERY OF SHOTGUN AND BASEBALL BAT

[44]On 23 January 2013 the missing Eibar ‘Marixa’ 12 gauge side-by-side shotgun, serial number 10206, registered to OTTOBRE, and a ‘Regent’ brand silver aluminum baseball bat with no hand grip, were found under a footbridge that crosses over the Five Mile Creek at the ‘Woodend Children’s Park’ in Woodend.[120]

[120] See Depositions, at 1694-1696

[45]It is the Crown case that the recovered shotgun and baseball bat were used in the shooting of the deceased and assault on DELMO.

[46]Analysis of cellular tower activity indicates that on 27 December 2011, HAVER and OTTOBRE returned from Tasmania to Victoria. At approximately 7:25 p.m. that evening, HAVER departs from Carrum Downs and travels towards Woodend.  HAVER is in the area for a total of approximately 6 hours before returning to Carrum Downs at around 5.00 a.m.

[47]It is the Crown case that HAVER disposed of the Eibar ‘Marixa’ shotgun and the ‘Regent’ silver aluminum baseball bat in the Five Mile Creek at Woodend and that OTTOBRE was aware of its disposal.

RECORD OF INTERVIEW

[48]OTTOBRE was interviewed by police on 8 June 2012;[121] she made a “no comment” interview.  OTTOBRE was again interviewed by police on 17 December 2012;[122]  she made a “no comment” interview.

[121] See Depositions, at 3402-3409

[122] See Depositions, at 3489-3508