R v Gill & Mitchell
[2006] VSC 478
•15 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1408 of 2003
| THE QUEEN |
| v |
| JASON RUSSELL GILL and MICHAEL PATRICK MITCHELL |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2006 | |
DATE OF SENTENCE: | 15 December 2006 | |
CASE MAY BE CITED AS: | R v Jason Russell Gill & Michael Patrick Mitchell | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 478 | |
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CRIMNAL LAW – Murder
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney | Mr P. O’Connor |
| For the Accused (Gill) | Mr M. Dean S.C. | Mr C. Metcalfe |
| For the Accused (Mitchell) | Mr J. Desmond | Victoria Legal Aid |
HER HONOUR:
Jason Russell Gill and Michael Patrick Mitchell you have each been found guilty by jury verdict of the crime of murder.
Jason Russell Gill, you have admitted 33 prior convictions from six court appearances.
Michael Patrick Mitchell, you have admitted 47 prior convictions from 23 court appearances.
In December 2001 you, Jason Gill, were living at the home of your uncle, Michael Patrick Mitchell, at 75 Beatty Street, Ivanhoe.
On 13 December 2001, a number of people were coming and going throughout the day and evening at that address and it is apparent from the evidence that considerable quantities of alcohol were consumed by a number of persons present. Lazo Krincevski, who had previously lived next door, attended with two of his friends at about 7 o’clock that night. You, Jason Gill, left the house to go to cricket training and upon your return, sometime after 7 o’clock, you then began to drink alcohol and consume some six to 10 stubbies of beer until it was decided that you, Lucas Stanbury, Christopher Elmes and Anthony Molonaro would go to the local nightclub known as Breakers.
It appears that you, Michael Mitchell, were considered too drunk to join the others, although such was your level of intoxication that you thought you had in fact gone to the club when it was clear from the evidence that you did not.
You, Jason Gill, and your party arrived at Breakers some time after 11.20pm and remained there until a short time before 3 am. Whilst there you consumed a further six to 10 stubbies of alcohol and eventually you walked home with Christopher Elmes having previously gone to the nearby 7‑Eleven store in the company of others where food and drink was purchased.
Once you had returned to Beatty Street it appears that you took exception to Lazo Krincevski’s behaviour. You stated in your evidence at the previous trial that he became noisy and knocked over an ashtray, and as a consequence you asked him outside. Mr Krincevski went outside, as did you, and an argument was heard to take place. You, Michael Mitchell, then joined Gill and Krincevski outside and you were both seen by David Mitchell who had followed you out. He had walked up to Oriel Road and there saw Krincevski backing away from you, Gill, as you were walking towards him about a metre distant and you, Mitchell, were walking behind Gill. David Mitchell heard yelling and saw Krincevski fall over and you, Mitchell, told David Mitchell to leave, which he did.
Mr and Mrs Blight, neighbours who lived at 69 Beatty Street, Ivanhoe heard the sound of yelling and Mr Blight heard the words “fuck off Dave”. He recognised you, Mitchell, as the speaker. The next he heard were voices drifting off to the north and the sound of “concrete on concrete” occurring in quick succession. Other neighbours also heard voices and yelling at about this time.
The two of you were seen by Lucas Stanbury crossing Oriel Road. He then walked to number 80 Oriel Road and saw the two of you either going over the fence or already in the front yard. He saw a body lying on the grass and he saw you, Jason Gill, pick up a slab of concrete and drop it near the head of Mr Krincevski. He then saw you, Mr Mitchell, pick up the concrete slab and say words to the effect “That’s not how you do it, this is how you do it” and drop the concrete slab and as it made a different noise from that which it had previously made, Mr Stanbury concluded by reason of the sound, that you dropped it onto the head of Mr Krincevski.
Mr Stanbury then walked around the body lying on the ground and endeavoured to push the two of you away and suggested that you all should leave. He left and was joined by the two of you as he was crossing Oriel Road. At that point one of you, and he thought it was you Mitchell, said words to the effect that “he got got good. He got his right whack”.
Mr Krincevski’s body was discovered by Mrs Barbara Gill, no relation to you Mr Jason Gill, later that morning and the police spoke to you Mr Mitchell, both outside your house that morning and later that day. A statement was taken from you at the Heidelberg Police Station. In that statement you told the police that you knew the deceased but had not seen him for some 12 to 18 months. You, Jason Gill had gone with Stanbury and Karra Dean to your aunt’s place in Ivanhoe and later that day Mr Mitchell told you the police wanted to speak to everyone who had been at the house the night before. You then left the company of the others and travelled by train to Diamond Creek and unannounced, rang your cousin and stayed the weekend with he and his girlfriend. You returned to Beatty Street on the Sunday afternoon to get your clothes and moved back to live at your parents. You spoke to the police on the Sunday and arranged to meet with them the following day, which you did. You were interviewed by the police on 17 December and you admitted that your tracksuit pants, which you had been wearing on the Thursday night, had been washed and stated that you had been wearing an Adidas T-shirt on that night, otherwise you denied all knowledge of the deceased.
When the police attended your parent’s home they found your runners in the washing machine, they having been washed by your mother, who found them soaking in the laundry trough. You gave the police the T-shirt you said you were wearing on the night, but a review of the surveillance tape taken from the 7‑Eleven store disclosed that you were in fact wearing a different T-shirt. The police confronted you with this and a search was conducted at your home and at 75 Beatty Street. The T-shirt has not been located. You were subsequently arrested on 11 January 2002 and maintained your position that you did not know the deceased.
You, Michael Mitchell, were interviewed by the police on 21 December, 2001. You told the police that you had not seen the deceased for 12 to 18 months previously, which was consistent with what you had said to the police in your statement on 14 December 2001.
An autopsy conducted by Dr Dodd on 14 December 2001 determined that the deceased had suffered, inter alia, a cut throat, nine stab wounds to his flank and abdomen and a basal skull fracture. He had also suffered a broken jaw and five broken ribs. The cause of death was a combination of injuries, in particular, the three main injury groups contributed to death.
The Crown case was that the two of you acting in concert inflicted all the injuries to the deceased, which injuries were a substantial and operating cause of death. The Crown relied upon the evidence of Lucas Stanbury, and the circumstantial evidence which Mr Tinney, on behalf of the Crown, described as compelling. Although Mr Stanbury gave evidence that he did not see a knife, or any injuries inflicted with a knife; the jury, I am satisfied, must have accepted the Crown’s submission that whoever inflicted the head injury inflicted all the injuries.
The evidence of both Dr Dodd and Professor Landgren showed that death from any one of those three major injury groups would have occurred within moments or minutes. Clearly it was open to the jury to rely upon Stanbury’s evidence and that that evidence alone would support a conviction for murder and taken in conjunction with the circumstantial evidence or, indeed having regard to the circumstantial evidence independently of Stanbury’s evidence, the evidence was clearly sufficient to support the verdicts.
The principal way in which the Crown went to the jury was that the two of you, acting in concert, inflicted all the injuries which were a cause of death and in those circumstances I do not regard it as necessary to decide whether the jury was satisfied as to the use of a knife. Clearly, a knife was used, as was a concrete pit cover, although who wielded the knife is not disclosed by the evidence. In those circumstances, I propose to make no distinction in regard to your respective roles. As I understand it, this was the approach adopted by the Honourable Justice Redlich who sentenced the two of you in respect of the use of the concrete slab only. Justice Redlich sentenced you, Jason Gill, to 16 years’ imprisonment, with a non-parole period of 12 years, and you, Michael Mitchell, to 18½ years’ imprisonment with a non-parole period of 14 years. As I understand it the difference in the sentences imposed was attributed to the differences in your respective ages and your respective prior criminal history.
Turning now to matters personal to each of you. Jason Gill, you are now aged 34, you were aged 29 when you were arrested and you have been in custody ever since. A report by a clinical psychologist, Bernard Healey, was tendered in evidence as Exhibit G1. In it he details your antecedents which I accept. You were educated at Heidelberg Heights Primary School and McLeod Technical School where you completed Year 10. You then undertook a painting and decorating apprenticeship, which you completed, and you have variously worked as a plasterer, bricklayer, and have been engaged in renovating houses. After leaving school you continued your interest in sport and, in particular, cricket, and your interest in music. You are single, although you have had two significant relationships in the past and you continue to enjoy the support of your parents and sister, who were present every day of the trial. You home life has been a happy one, although in 1991 you suffered serious injuries to your left leg as a result of a car accident which required several operations, a period in a rehabilitation unit and lengthy convalescence. Mr Healey has reported that in 1993 you were involved in another motor vehicle accident which caused a traumatic emotional reaction for which you required psychiatric assistance. Mr Healey also reported that since your late adolescence you have been a heavy cannabis smoker and regularly abused alcohol. Mr Healey tested you and ascertained that you have an IQ of 100 which he categorised as an average intellectual capacity.
It appears that since you have been incarcerated you have availed yourself of a number of courses available to you within the prison system, which has been confirmed by a number of certificates tendered in evidence as Exhibit G2. You have also qualified as a Peer Educator and you have formed a band. Your counsel, Mr Dean SC, has submitted that you have used your time constructively and productively. You have remained drug free and your health and psychological conditions are now more stable than they were when Mr Healey was reporting in 2003.
Mr Dean SC submitted that, at the time that you were sentenced by the Honourable Justice Redlich he regarded your prospects for rehabilitation as reasonable, but that now, by reason of your conduct whilst in prison and the continued support of your family, your prospects for rehabilitation should be regarded as excellent and I accept that this is so.
Michael Patrick Mitchell, you are now aged 50. You are divorced and the father of four children who, at the time of this offence, were living with you. A report by a clinical psychologist, Mr Patrick Newton, dated 2 July 2003 was tendered in evidence as Exhibit M1. I accept the matters personal to you as detailed in that report. You were one of 10 children. You grew up in the West Heidelberg area and attended local schools. You were expelled from your first primary school because of unruly behaviour and it appears that your early school years continued to be marked by unacceptable behaviour. You attended technical school until the age of 15, although it appears that your behaviour did not abate. Since leaving school, you worked in a number of unskilled jobs and at the time of this offence you were in receipt of a supporting parent’s benefit. You commenced drinking alcohol at the age of 12 and by the age of 17 you were regularly drinking to excess. This pattern of heavy drinking continued until your arrest and, indeed, on the day preceding the murder, you, together with others at the house, appeared to have consumed substantial quantities of alcohol. You have also in the past used amphetamines and cannabis and you told the police that it was your habit to spend the days drinking and smoking a pipe.
Since your incarceration you have remained alcohol free and the difference between your appearance now and as it was in the video recorded interview in 2002, it must be said, is quite remarkable. You have an extensive prior criminal history which reflects, in part, your drug use. The most significant prior convictions were sustained in 1974 when you were convicted of attempting to render insensible, unconscious or incapable of resistance by means calculated to choke with intent to commit an indictable offence, wounding with intent to do grievous bodily harm and indecent assault on a woman wherein you were sentenced to a total effective sentence of 10 years with a minimum of seven years to be served. You were then aged 18. Since then you have been sentenced to a number of sentences of imprisonment which have been wholly suspended and two modest periods of incarceration of one month and two months respectively.
Dr Newton assessed you as being of average intelligence. He described you as impulsive and lacking in planning skills and with very limited understanding of the impact of your alcohol consumption, otherwise he found no evidence of any serious abnormality in your cognitive process. You maintained to Dr Newton, consistently with that which is submitted by your counsel, Mr Desmond, that you have no memory of the events of the night of 13 December and the early hours of 14 December.
You have also been in custody since your arrest on 11 January 2002. You have used the time to your advantage, not only by abstaining from alcohol, but also participating in courses that are available to you, and your participation is confirmed by the various certificates which were tendered in evidence as Exhibit M2.
The maximum penalty for the crime of murder is life imprisonment. Mr Desmond, on behalf of you Mr Mitchell, submitted that the murder was of the middle order of cases of this kind, that there was a lack of planning involved and no evidence of animosity and that in those circumstances, given that you were extremely affected by alcohol, this killing should be regarded as a spontaneous act. Mr Dean SC, counsel for you Mr Gill, effectively joined in that submission. He submitted that this was a spontaneous unpremeditated loss of control fuelled by alcohol. Whilst I accept that both of you were affected by alcohol to significant degrees and that Mr Krincevski’s death does not appear on the evidence to be motivated by any animosity, nor was it the result of any planned assault, nonetheless it is not accurate to describe it as the result of a spontaneous act. Once the jury accepted the evidence of David Mitchell and Mr Blight and the removal of the pit covers from outside number 67 and number 80 Oriel Road, then it was open to them to infer that the assault on Mr Krincevski had begun in Oriel Road and clearly the words “fuck off Dave” were capable of the inference, as Mr Tinney submitted to the jury, that something was going to happen that you, Mr Mitchell, did not want you son to see, so that whilst this was not a planned killing, borne of animosity, nor was it a spontaneous act with its genesis in the front yard of number 80 Oriel Road.
I do not understand the Crown to dispute the submission that this murder is in the mid-range of offences of this kind; but Mr Tinney submitted, and I accept, that nonetheless, this was a ferocious attack in which the deceased was brutally murdered. Just as there is no evidence of motive or animosity, there is no evidence that Mr Krincevski was acting in any threatening way and conduct such as spilling a beer and then knocking over an ashtray is no more than being a nuisance and could in not in anyway be described as threatening. In any event, Mr Krincevski did as he was asked and went outside. What escalated events from that time will never be known.
Victim impact statements tendered in evidence on behalf of Miryana Krincevski, the deceased’s wife, and his daughter Shanita, his brother Michael Krincevski, and his parents Vlado and Gorica Krincevski, were tendered in evidence as Exhibits A, B and C, respectively. Mrs Miryana Krincevski speaks eloquently of the distress, anxiety and depression she has suffered since her husband’s death and the impact his death has had upon their daughter who was only aged five at the time. Mr Michael Krincevski and his parents, Vlado and Gorica, speak of the distress and suffering that they have endured as a result of the loss of their loved one. These statements speak eloquently of the impact of your crime and no sentence the Court imposes can restore to them their husband, father, son and brother.
In sentencing each of you, I must take into account the nature and gravity of the offence here committed, which, on any view, was a violent killing for inexplicable reasons. Any sentence imposed must also seek to punish you and act in denunciation of the your conduct and signal to the community that human life is to be protected and respected and that those who commit murder can expect condign and salutary punishment.
Any sentence imposed must give due weight to specific deterrence and in that respect I note that you, Mr Mitchell, have prior convictions for unlawful assault, intentionally or recklessly causing injury and more relevantly the wounding with intent to do grievous bodily harm for which you received a substantial period of imprisonment. Clearly that sentence has failed to deter you from committing further offences and regrettably this most serious offence.
In respect of you, Mr Gill, I accept that your prior convictions, although substantial, are modest and do not involve offences of violence and that prior to being taken into custody in January 2002 you had not previously been incarcerated. I accept that your prospects for rehabilitation are indeed, favourable particularly if you continue to conduct yourself whilst in prison as you have to date. By the time you are released you will have lost many productive years but with the continued support of your family there is no reason why you cannot become a constructive member of the community.
In respect of you, Mr Mitchell, one would expect that after a substantial period of your life spent in prison and alcohol free, provided you do not relapse into alcohol abuse upon your release, there is no reason why you should not lead a law-abiding life. Accordingly, I regard you prospects for rehabilitation as reasonable.
Applying the principals enunciated in R H McL v The Queen that it is only in very rare cases that a different sentence should be imposed on a re-trial, I propose to impose the same sentences as previously imposed in respect of each of you, but in doing so, I state that they are not sentences that I would necessarily have imposed.
Although I may possibly have imposed greater sentences than that previously imposed, by reason of the different view of the facts as I have found them to be, I must, in the exercise of my sentencing discretion, also take into account a further number of considerations. They are:
(1) The age of the matter, that is, it is now five years since the offence occurred;
(2) That since the last trial in May 2003, each of you has used that time productively so that your prospects for rehabilitation are in my view now more favourable in respect of each of you than they were in May 2003;
(3) That you have spent from May 2003 until December 2005 as sentenced prisoners, and since December 2005 you have both been on remand in circumstances where activities available to prisoners undergoing sentence may not have been available to you;
(4) The sentences imposed by The Honourable Justice Redlich in May 2003 in respect of each of you;
(5) The principles enunciated in R H Mc L v The Queen that it is only in a very rare case that a different sentence should be imposed than that previously imposed, because to do so would be to effectively punish you for exercising your right of appeal, and I am satisfied that this is not such a case. Accordingly, I propose to impose the same sentences as previously imposed in respect of each of you.
Accordingly, Jason Russell Gill, for the crime of murder you are convicted and sentenced to 16 years’ imprisonment with a non-parole period of 12 years and I declare that you have already served by way of pre-sentence detention, a period of 1799 days.
Michael Patrick Mitchell, for the crime of murder, you are convicted and sentenced to 18 ½ years imprisonment with a non parole period of 14 years and I declare that you have already served by way of pre-sentence detention a period of 1799 days.
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HIS HONOUR: Jason Russell Gill, do you understand the sentence I have imposed upon you?
PRISONER GILL: Yes.
HER HONOUR: It is a sentence of 16 years' imprisonment, with a non parole period of 12 years, and I declare that you have already served by way of pre-sentence detention a period of 1799 days of that sentence. Do you understand that?
PRISONER GILL: Yes.
HIS HONOUR: Michael Patrick Mitchell, do you understand the sentence I have imposed upon you?
PRISONER MITCHELL: Yes.
HER HONOUR: It is a sentence of 18 and a half years' imprisonment, with a non parole period of 14 years, and I declare that you have already served by way of pre-sentence detention a period of 1799 days. Do you understand that sentence?
PRISONER MITCHELL: Yes.
HER HONOUR: Are there any other matters, gentlemen?
COUNSEL:No, Your Honour.
HER HONOUR: Thank you. Remove the prisoners, thank you.
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