R v Guillerme
[2023] VSC 36
•9 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0338
| Between: | |
| THE KING | |
| -and- | |
| SAMANTHA GRACE GUILLERME | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 19 December 2022 |
DATE OF SENTENCE: | 9 February 2023 |
CASE MAY BE CITED AS: | R v Guillerme |
MEDIUM NEUTRAL CITATION: | [2023] VSC 36 |
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CRIMINAL LAW — Sentence following sentence indication — Manslaughter by unlawful and dangerous act — Statutory complicity — On pretext, accused lured deceased to remote location into clutches of two co-accused believing they would “kick the shit out of him” — Co-accused sent accused down road to wait while they took deceased into bush at gunpoint — Deceased not kicked, bashed or shot by co-accused — Instead, on prosecution case, deceased murdered by administration of GHB — Accused absent when drugging and death occurred — Accused did not contemplate killing or means by which effected — Deceased’s partly decomposed body discovered in bush five weeks later — Accused pleaded guilty despite arguable defence based on co-accused’s departure from agreement — Remorse — No history of violence — Limited criminal history — Undertaking to give evidence against two co-accused at murder trial — Excellent prospects of rehabilitation — Return to prison likely to restore accused’s prior depression — Hardship of prison conditions during pandemic — Current sentencing practices — Sentence of three-and-a-half years’ imprisonment with non-parole period of fifteen months — Sentence imposed less severe than indicated at sentence indication — But for plea of guilty and undertaking to assist authorities, sentence of eight-and-a-half years’ imprisonment with non-parole period of six years — Assuming plea of guilty without undertaking, sentence of six years’ imprisonment with non-parole period of three years — Crimes Act 1958 (Vic), s 323(1)(c); Criminal Procedure Act 2009 (Vic), ss 207-209 & 291-294; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Rochford KC with Ms B Goding | Abbey Hogan, Solicitor for Public Prosecutions |
| For Ms Guillerme | Mr J Desmond | Stephen Peterson Lawyers |
HIS HONOUR:
Overview
At the peak of the goldrush, the Gippsland hamlet of Walhalla swelled in population to about four thousand hopefuls. Some say it’s a myth — perhaps an allusion to its Norse eponym — but legend has it that there was so little room left in the town’s steep hillside cemetery that some who perished seeking their fortune suffered what was thought to be the pauper’s indignity of being buried standing up.[1]
[1]It is thought that the town took its name from an early local goldmine, which had been named after the Walhalla temple in Donaustauf in Germany, which itself had been named after the Valhalla of Norse mythology — the place where half of those who died in combat waited, presumably standing, until called upon to fight in aid of the god Odin.
But there was no dignity in death for Jarrad Lovison. Not a shred. He wasn’t even given a hasty burial in a shallow grave. Murdered, his body was left in the open, carcass-like, in bushland just off a forest road between Walhalla and Moe. His remains were found by police five weeks later. Distraught, his dad said that, as a farmer, he knows what happens to a body left in the bush for that period, and he can’t get the thought out of his head. These dreadful happenings came about in this way.
Over the night of 15 April 2020, in a series of digital messages, some a bit racy and flirtatious, Samantha Guillerme arranged to meet Jarrad Lovison near the Moe-Walhalla Road under the guise of a minor drug exchange. In truth, she was luring him into the clutches of Andrew Price and Jake Brown so that he could have “the shit kicked out of him”. Mr Price was incensed, because he believed that Mr Lovison had been having an affair with his girlfriend Angela O’Brien. Prior to her involvement with Mr Price, Ms O’Brien had been in a long-term relationship with Mr Lovison.
In the early hours of the next morning, as arranged, Mr Lovison rode his green pushbike to his rendezvous with Ms Guillerme. He slid into the front passenger seat of the car in which she was sitting, alone, in the driver’s seat. She had been driven there by Mr Brown with Mr Price, both of whom now laid in wait in scrub beside the road. Armed with guns, they sprang from their hiding place and burst into the back seat of the car, yelling at Mr Lovison, and tossing his phone away. Mr Brown then directed Ms Guillerme to drive to another road nearby. She did as she was told. When they arrived, the gunmen forced Mr Lovison out of the car. Next, Mr Brown told Ms Guillerme to drive away, by herself, to a spot about five hundred metres further on and wait there. Again, she did as she was told, leaving the three men behind.
Meanwhile, Mr Lovison’s captors forced him into the bush at gunpoint. But they did not “kick the shit out of him”. Nor did they bash or shoot him. Instead, beyond Ms Guillerme’s contemplation, the prosecution case is that they administered, or forced him to take, large quantities of the illicit drug GHB (gamma hydroxybutyrate).
Mr Lovison did not rise later that morning to go wood-chopping with a friend, as the two had planned the day before. Nor did he return to his home, where he lived with his father and his stepmother. For he was now missing, never to be seen alive again.
Sadly, as I have said, Mr Lovison’s partly decomposed body was found in the forest over a month later, on 23 May, a short way from where Ms Guillerme had left him with her confederates. He was fully clothed, lying on his back on rotting wood and fallen leaves, each leg bent at the knee over a thin branch, his left hand resting on his chest, his right arm draped at right angles to his tall frame beside a log that had been cut into blocks with a chainsaw years before. His head was tilted back and to the left, as if he were asleep. For all the world, he looked like a fallen soldier. All except that, outwardly, he had no apparent injuries to speak of, certainly nothing that might have killed him. The medical evidence is that he had died not from any blunt trauma or the like, but as a result of GHB toxicity.
In October 2020, Ms Guillerme, Mr Price and Mr Brown were arrested and charged with Mr Lovison’s murder. On 6 December 2021, all three were committed for trial.
On 28 October last year, with the concurrence of the Director of Public Prosecutions, Ms Guillerme sought a sentence indication on the lesser charge of manslaughter.[2] It was foreshadowed that, if she took up the Court’s indication, she would sign a draft “can say” statement already provided to the prosecution and give an undertaking to give evidence against her co-accused at their murder trial. After hearing how the case would be put on manslaughter and the matters to be relied on in mitigation, I indicated that, if she pleaded guilty, I would impose a sentence not exceeding four years’ imprisonment with a non-parole period of one year and nine months.
[2]Pursuant to ss 207-209 of the Criminal Procedure Act 2009 (Vic).
Ms Guillerme took up the indication. On 2 November, she duly signed her draft statement. Two days later, she pleaded guilty to manslaughter and gave the promised undertaking. The matter was adjourned for a plea hearing. Having been on bail since 16 September 2021, Ms Guillerme asked to be returned to prison to commence serving the remainder of whatever her sentence turned out to be. She remains in custody to this day, having now spent a total of just over fourteen months there.
On 19 December, Mr Rochford KC, who appeared with Ms Goding for the Director, opened the matter on the plea. In addition, I heard compelling victim impact statements from Mr Lovison’s parents. Mr Desmond, who appeared for Ms Guillerme, made a plea in mitigation. I reserved sentence until today.
There are many considerations to be assessed and balanced, including the nature and gravity of the offence, its inevitably profound impact on Mr Lovison’s family, Ms Guillerme’s plea of guilty, her undertaking to assist the authorities, and the applicable sentencing purposes.
I shall announce the sentence I have determined to impose at the conclusion of these reasons.
Summary of offending
Agreed summary
The account of events and surrounding circumstances that I am about to give is taken mostly from an executive summary read to the Court by Mr Rochford, which, in some important respects, draws on Ms Guillerme’s police statement. The Director also filed an even more thorough summary, to which I have had regard as well.
As I understood it, Mr Desmond did not dispute either summary, but added some other matters. I shall incorporate this and other information, where appropriate.
Jarrad Lovison
Jarrad Lovison was born on 21 November 1982. He was aged only 37 at the time of his untimely death.
He is survived by his father John Lovison, his stepmother Diane Lovison, his mother Kathryn Lewer, and her son (and his half-brother) Brayden.
Known as “Lovo” to his friends and family, he was striking for his great height: he was seven feet tall. He loved and bred dogs, and had a dog called Slade.
Mr Lovison lived in a bungalow on his father and stepmother’s property at McPhersons Road in Newborough. He had lived there for about seven years.
For twelve or so years, Mr Lovison had been in an on-again/off-again relationship with Ms O’Brien. After that relationship ended in February 2019, Ms O’Brien began seeing Mr Price. Mr Lovison maintained contact with Ms O’Brien throughout her relationship with Mr Price, and on at least one occasion during that period they resumed their sexual relationship.
Mr Lovison did not hold a driver’s licence. He used a green pushbike to get around, or sometimes got lifts from others.
Andrew Price
Andrew Price was nearly 47 back in April 2020. He lived with his two teenage sons in March Street in Newborough.
He also owned a property at Haunted Hills Road in Newborough, on which there was a site hut. This place was rented to Patrick Alan. It was sometimes referred to as the Haunted Hill block.
Jake Brown
Jake Brown was aged 28 at the relevant time. He lived with his wife and their two young children in Willow Grove. On occasions, he slept in a shed on the property of Danial and Teresa Ruddell at Adam View Court in Tanjil South.
Mr Brown was also in a relationship with Ms Guillerme.
He knew Mr Price through mutual friends around the Newborough, Moe and Trafalgar areas.
Samantha Guillerme
Samantha Guillerme was born on 29 May 1996. She was only 23, nearly 24, at the time of her offending, and is now 26.
She lived in Contingent Street in Trafalgar. In August 2020, she moved into her parents’ home in Moe.
Ms Guillerme came to know Mr Price through Mr Brown.
Background events
By early-2020, Mr Price had become jealous over Mr Lovison’s ongoing contact with Ms O’Brien and the gossip — some accurate, some not — that the former couple continued to maintain a sexual relationship. The two men had been involved in verbal and physical arguments, including on one occasion in October 2019 when Mr Lovison broke Mr Price’s arm.
Mr Price had spoken about paying someone to kill Mr Lovison, and he and Mr Brown had discussed where they could dispose of his body if they killed him.
Ms Guillerme had been present during conversations involving her co-accused about Mr Lovison. She was aware that Mr Price bore some animosity towards Mr Lovison but did not know of each incident between them prior to his death. She had commented that Mr Lovison fancied her and that she could lure him anywhere. It is not alleged, however, that she was a party to or aware of any talk of killing or disposing of him.
In the weeks before Mr Lovison’s death, while at the Haunted Hills block, Mr Brown asked Ms Guillerme whether she still spoke to Mr Lovison and whether he would catch up with her. She said that she would. Patrick Alan recalled that Ms Guillerme commented that she might be able to lure Mr Lovison as she knew “he wanted to fuck her”. Ms Guillerme also knew that Mr Brown and Mr Price wanted to “teach Lovo a lesson,” and understood this to mean that he would be assaulted.
On 14 April 2020, Mr Lovison went to the home of Doris Carranza. While there, he spent a lot of time on his phone, giggling. He told Ms Carranza that he was sexting a girl. Ms Carranza expressed her hope that he was not messaging Ms O’Brien. He said it was “Sam” and that he was getting weed from her. The same night, he told Ms Carranza that he and two others had set Mr Price’s shed on fire, and that Mr Price had threatened him some months ago.
The next day, Wednesday 15 April 2020, Mr Lovison worked chopping wood with Nathaniel Gobius. After finishing, the two men made plans to go out together and chop more wood the next day.
Later, Mr Lovison spoke to his father and his stepmother at home. He left to go into Moe at around 5:00 p.m. This was the last time anyone in his family saw him.
Meanwhile, from about 6:00 p.m., Ms Guillerme and her co-accused engaged in a series of SMS and phone communications. Mr Brown and Mr Price were also in contact with Ms O’Brien, and were coming and going from March Street in Newborough.
At 8:41 p.m., Mr Brown, who was in Moe by then, phoned Ms Guillerme in a call that lasted eleven minutes. While on the call, at 8:43 p.m., Ms Guillerme, who was in Trafalgar, sent a Snapchat message to Mr Lovison saying, “Sup buttercup.” This was the first of a series of messages between them that night, many of which related to Mr Lovison’s getting “juice” (i.e., GHB) or “weed” from Ms Guillerme.
While engaging in this chat, and from about 8:45 p.m. to 9:45 p.m., Mr Lovison was at Kristen Wagner’s house in Belvedere Street, Newborough. He took a photo of himself while in Ms Wagner’s shed and sent it to a number of people via Snapchat. He mentioned to Ms Wagner that he was going home to meet a female, and that he was “hopefully going to get some”. He asked her to drive him to Morwell or Traralgon, but she declined. So, instead, he left on his pushbike.
During the course of her Snapchat exchange with Mr Lovison, Ms Guillerme contacted Mr Brown and told him that Mr Lovison wanted to meet her. She and her co-accused continued to exchange SMS messages until shortly after 1:00 a.m. on the Thursday morning. At that time, Mr Brown and Mr Price travelled to Ms Guillerme’s house in Trafalgar. Mr Brown asked Ms Guillerme to confirm the meeting with Mr Lovison, which she did, at 1:57 a.m., first by trying to call him, then by sending him an SMS saying, “Oiiiiiiiiiii!!!!? Doin.” Ultimately, through further contact via SMS between 2:30 a.m. and 3:30 a.m., Ms Guillerme and Mr Lovison arranged to meet near the Moe-Walhalla Road.
Events in the forest
Mr Brown drove Ms Guillerme (who was in the front seat) and Mr Price (who was in the back) from Trafalgar to the Moe-Walhalla Road for the meeting. He parked on the side of the road and told Ms Guillerme to move into the driver’s seat, which she did. Mr Brown and Mr Price got out the car, taking guns from the back seat, and went to hide in nearby bushes. Until then, Ms Guillerme had not been aware that her co-accused had guns with them. I shall say more about this fact later.
Mr Lovison arrived on his pushbike. He hid the bike on the side of the road and then got into the front passenger seat. He and Ms Guillerme talked and had a cigarette.
Mr Brown and Mr Price then emerged from their hidey-hole wearing head torches armed with the guns. They climbed into the back seat of the car, yelling at Mr Lovison. Mr Brown took Mr Lovison’s phone and threw it out of the car. He then told Ms Guillerme to drive to Tanjil Bren Road, which she did, stopping where he told her to. Once there, Mr Brown and Mr Price stepped out of the car, guns in hand, and made Mr Lovison get out too.
Mr Brown told Ms Guillerme to keep driving down the road and turn left, and then stay in the car at that location. She did as she was told. This location was near Dwyers Track and Ortons Track in the Moondarra State Park, and was about five hundred metres from where Mr Lovison’s remains were found. Phone records suggest that Ms Guillerme remained there between 3:54 a.m. and 4:37 a.m.
Meanwhile, Mr Price and Mr Brown took Mr Lovison into the bush at gunpoint, where he was administered, or forced to ingest, GHB in quantities which ultimately led to his death. As I have said, his body was left in the open, not even covered.
At what, according to phone records, must have been around 4:38 a.m., Mr Brown met Ms Guillerme at the car and drove her to Mr Ruddell’s house at Adam View Court, Tanjil South. He told her that she would be better off if she did not ask questions about what had happened. Mr Price did not travel with them on this trip. He ended up at Tanjil Bren. After leaving Mr Ruddell’s house, Mr Brown went to collect Mr Price, before returning to drive Ms Guillerme back to her house in Trafalgar.
Movement of pushbike
A few days later, Ms Guillerme and Mr Brown returned to Moe-Walhalla Road to “deal with” Mr Lovison’s pushbike. Ms Guillerme rode the bike to Adam View Court, where she threw it into bushes off to the side of the road. She told Mr Brown where she had left it, and he said that he and Mr Price would take care of it.
Mr Lovison reported missing
At around 8:40 a.m. on 16 April 2020, Mr Gobius went to Mr Lovison’s shed to pick him up to go chopping wood, as they had arranged the night before. The door was padlocked from the outside, and Mr Lovison did not respond to Mr Gobius’s calls or text messages.
Mr Lovison was reported missing by his stepmother on 22 April 2020, seven days after she and his father had last seen him.
Initial police contact with Ms Guillerme
After establishing that Ms Guillerme was the last person to have had phone contact with Mr Lovison, police spoke to her on 27 April 2020. She told them she knew Mr Lovison and had only had contact with him via Snapchat.
When police spoke to Ms Guillerme again on 7 May 2020, she lied, telling them she had to go to work in ten minutes. After they left, she deleted the contents of her mobile phone. The next day, she told police she had sold drugs to Mr Lovison on the Moe-Walhalla Road on 15 to 16 April 2020 and had then returned home.
Police searched Ms Guillerme’s house on 15 May 2020. They seized a number of items including mobile phones, a laptop, and four A5 pages torn from a notebook with handwritten notes that formed a “cheat sheet” of what to say to police. Ms Guillerme’s statement of 8 May was broadly consistent with these notes. In her phone, Mr Brown’s number was saved under the name “J”, and her handwritten notes also referred to “J”.
Discovery of Mr Lovison’s body
Subsequently, police obtained data concerning the mobile phones of Ms Guillerme and her co-accused. Analysis of location data established the area in which Ms Guillerme’s phone was situated on 16 April 2020. Over a number of days, police conducted searches of the Moondarra State Park around the Ortons Track and Dwyers Track intersection. Mr Lovison’s body was found on 23 May 2020, about twenty-five metres south of the Tanjil Bren Road.
Post-mortem findings
A post-mortem examination and toxicological testing established the cause of Mr Lovison’s death to be GHB toxicity. The pathologist, Dr Joanna Glengarry, opined that the level of GHB found in his blood was well in excess of levels attributable to endogenous production or decomposition. Dr Glengarry described the level as “very high and more than capable of causing death in the absence of other factors”.
Conversations between three accused
Police monitoring of phone calls revealed discussion between Mr Brown, Mr Price and Ms Guillerme, and with others, about various matters of interest concerning Mr Lovison. As more information was circulated in the public sphere, the three accused appeared to be increasingly concerned about what was being said.
Arrests
On 20 October 2020, Ms Guillerme was arrested and taken to Morwell Police Station, where a recorded interview was conducted. She exercised her right to silence. She was charged with murder and remanded in custody.
The next day, Mr Brown and Mr Price were also arrested, interviewed, charged with murder, and remanded in custody.
Prison phone calls
In prison phone calls monitored by police, Ms Guillerme, when speaking to her parents, admitted that she knew Mr Lovison was going to “get the shit kicked out of him”. In a call on 17 February 2021, she expressed her frustration that Mr Brown had spoken to others about what happened on the night Mr Lovison went missing, when she had been so careful not to say anything and had made a “no comment” interview with police.
Victim impact statements
I turn to the victim impact statements.
From the jury box, John Lovison stood, with his wife beside him, and read their joint statement. He displayed a photograph of his son — as he said, to show that “he’s not just a name”. He delivered the statement with great passion and pathos, and immense dignity. His son, I dare say, would have been moved, and profoundly so. I was. And so was everyone else who witnessed it, including Ms Guillerme. It was riveting.
Jarrad Lovison was his father’s only remaining child, as his daughter was lost to suicide several years ago. He was the light of his life, and his wife’s. They miss his smile, his infectious laugh, his big bear hugs, and his beautiful soul. They are crushed, broken and empty, and fear never being whole again. They cry all the time and are tormented by the terror he must have felt when he realised what was happening. They feel cheated that he did not live long enough to have children of his own, or grandchildren for them. Yet they feel guilty when they are happy or are on a holiday.
Kathryn Lewer’s statement, read by Ms Goding, was equally moving. Ms Lewer said that the loss of her son is both devastating and overwhelming, but she considers that an understatement. She ruminates on whether he knew he was going to die, whether he suffered. She too despairs that he can never be a father and that she can never be a grandmother to his children. She feels extreme sadness, depression and anxiety over her loss. At times, she doesn’t want to wake up in the morning. She thinks the pain she and her son Brayden feel will last forever. Ms Lewer closed by saying that she and Brayden loved Jarrad dearly, and still do.
The suffering of Mr Lovison’s family was apparent not just in their words but also in their voices and on their faces. For a young man’s parents to lose their child reverses the natural order of things, and must be all the worse when death results from a crime of the kind committed against Mr Lovison.
As far as it is permissible to do so, I have had regard to the victim impact statements in considering sentence.
I wish to add this. I know that there is nothing this Court can say or do to lessen the grief suffered by Mr Lovison’s loved ones. It must be awful. As his father said, Jarrad Lovison is not just a name. He was a young man, a son, a brother, so dearly loved, and with so much ahead of him. The sentence to be imposed, however, is not a reflection of the worth of his life or what it might have been. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. The sentence simply reflects, as it must, the many and varied factors I am required by law to take into account, only one of which is the impact on loved ones.
Nature and gravity of offence
I turn now to the nature and gravity of manslaughter generally and of this offence in particular, including Ms Guillerme’s level of culpability.
Manslaughter in this State is (mostly) a common law offence.[3] At the relevant time, the maximum penalty was set by statute at twenty years’ imprisonment.[4]
[3]The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.
[4]See s 5 of the Crimes Act 1958 (Vic) (see version 291). For offences committed on or after 1 July 2020, the maximum penalty is 25 years’ imprisonment (see s 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic)).
While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely. Of the two categories of the offence remaining in Victoria,[5] manslaughter by unlawful and dangerous act is usually regarded as more serious than manslaughter by criminal negligence. But there is no inflexible rule. An offence falling within one category may be more or less serious than one falling within the other. Each case must turn upon its own particular facts.[6]
[5]Voluntary manslaughter no longer exists in Victoria as a result of the abolition of provocation as a defence to murder (see s 3B of the Crimes Act 1958 (Vic)). In Wilson v The Queen (1992) 174 CLR 313, the High Court held that battery manslaughter is no longer part of the common law.
[6]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] (per Weinberg JA; Williams AJA agreeing at 92[75]).
The form of manslaughter relied on here is manslaughter by an unlawful and dangerous act committed by way of complicity. In particular, as I understood the prosecution case, reliance was placed on the form of statutory complicity provided for in s 323(1)(c) of the Crimes Act 1958 (Vic) to characterise and ground her liability. This means that, in luring Mr Lovison to the bush so that he could be assaulted by her confederates, Ms Guillerme agreed to conduct that was both unlawful and dangerous, and that his killing was caused by behaviour of that type. The conduct agreed to was unlawful because it was to involve an assault of some kind. It was dangerous because a reasonable person in her position would have realised that there was an appreciable risk that Mr Lovison would suffer serious injury.
Ms Guillerme’s offence had some serious features about it, including the following. First, every offence of manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.
Secondly, here, the life of a beloved son and one who was part of a wider family and circle of friends, aged only 37, has been taken as a result of unlawful and dangerous conduct. As the victim impact statements show so graphically, Mr Lovison’s family are devastated at their loss.
Thirdly, while she did not personally commit the acts that caused death, and she was not present when they were committed, Ms Guillerme connived in and facilitated an agreement that Mr Lovison be assaulted, believing that he would have “the shit kicked out of him”. This is morally blameworthy conduct.
Fourthly, while she was a lesser player than either of her co-accused, her conduct in luring Mr Lovison into their hands was pivotal to her crime, and to theirs. Without her participation, the agreed ensnarement of Mr Lovison could not have come to fruition. Nor would there have been the horrible tragedy that followed, albeit completely unexpected by Ms Guillerme.
Fifthly, it is apparent that there was an element of planning and persistence in her conduct. In breach of his trust, Ms Guillerme engaged in banter with Mr Lovison on and off for some hours in order to have her confederates trap him. She laid in wait for him, and then delivered him up, as it were, by sitting with him in the car so as to allow her co-accused to spring from the bushes and catch him unawares.
Finally, Ms Guillerme’s post-offence conduct did her no credit. In the days that followed Mr Lovison’s abduction, despite what must have been at least a growing suspicion that, contrary to the plan of which she was a part, he might have come to grave harm or even been killed, she made no effort to alert the authorities that something was amiss or as to where he or his body might be. On the contrary, only a few days after the goings-on in the forest, she sought to conceal whatever she thought she and her co-accused had been involved in by moving Mr Lovison’s pushbike.
The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following. First, while Ms Guillerme believed that Mr Lovison would be seriously assaulted, as I have said, neither his death nor the means by which it was caused were contemplated by her. There is a glaring disjunct between what she agreed and believed would occur and what did in fact occur. Had she chosen to avail herself of it, there would have been a strong argument to be made to a jury that her co-accused went so far beyond the plan to which she agreed as to deny criminal liability against her for Mr Lovison’s death.
The High Court has recognised that, at common law, the test for inculpation of manslaughter is “inappropriate” if it “does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility”.[7] Ms Guillerme’s liability for manslaughter fell to be determined by a combination of the common law test and statutory complicity. Arguably, there may have been a nice question whether the gap between her agreement and belief, on the one hand, and the fact and means of Mr Lovison’s killing, on the other, was so great that, as a matter of law, she could not have been convicted of manslaughter. However, given that she has pleaded guilty, that question does not arise for consideration here. This issue will have to await its determination in a similar case in which the point is taken at trial.
[7]Wilson v The Queen (1992) 174 CLR 313 at 334 (per Mason CJ, Toohey, Gaudron and McHugh JJ).
Nevertheless, when a gap of this kind is treated as falling short of a defence, as it must be here, but as relevant to an assessment of the seriousness of the offence, as also must be so, its existence lessens the gravity of Ms Guillerme’s particular offence of manslaughter. All else being equal, that neither death nor the means by which it was caused by her co-accused was contemplated by her, I think, renders this offence, both objectively and vis-à-vis her state of mind, less grave and culpable than, say, a manslaughter involving awareness of a serious physical assault with a weapon that, as planned, does in fact occur but that goes too far and results in death.
Secondly, psychologist Carla Lechner said this in her addendum report, by which time she had to hand the unsigned version of Ms Guillerme’s police statement:
Ms Guillerme’s account to me accords with the account given in [that statement]. She reports that she was significantly drug-affected, having consumed both ice and cannabis at the time … She was also extremely depressed in mood, reporting suicidal thoughts in relation to what she then saw as the futility of her life, her addiction problems and her deep sense of isolation. She reports that, although she and [Mr Brown] were not in a formal relationship as such, they spent a lot of time together, were engaging in sexual contact and she considered him to be “the only friend [she] had”. She reports that she would “do whatever [Mr Brown] asked” [and that she] “struggled to say ‘no’ [and] didn’t want to lose him”. In light of her previous experience of abusive relationships, she is now able to see that she quickly fell into a pattern of “people pleasing” her new partner in order to minimize any potential harm to herself.
I accept this evidence. While it does not go as far as to amount to proof that Ms Guillerme was acting completely under the thrall of Mr Brown or that she had no realistic choice in the matter, it does suggest at least this. In her depressed, drug-addled and lonely state, she felt obliged to do as she was told by Mr Brown. She had no motive for being involved in the offending. She had nothing to gain, other than perhaps to please Mr Brown. When regard is had as well to her history of damaging relationships with males, about which I shall say more later, these factors suggest a lower level of moral culpability than might be thought to exist at first blush.
Thirdly, it is apparent that Ms Guillerme was very much a follower who was kept in the dark by her co-accused about some important things. While she knew that Mr Price and Mr Brown “didn’t get along” with Mr Lovison, she “didn’t know the details”. As she explained in her police statement, she assumed he would be bashed and have a long walk home, but nothing more. She was not aware of the presence of guns until they were produced from the back seat of the car when in the forest. She did not ask, and was not told, why her co-accused had guns but presumed they would be used “to scare and threaten” Mr Lovison. As we have seen, even after they left the forest, Mr Brown told her she would be better off if she did not ask questions about what had happened. It seems she was told very little, and perhaps did not want to ask.
Fourthly, Ms Guillerme was somewhat guileless when compared with her co-accused. For example, neither co-accused took his phone on the trip to the forest, whereas she took hers. As the police investigation shows, phone movements can be tracked. And, at Mr Brown’s direction, she was the one who later moved Mr Lovison’s pushbike from the forest. This allowed her co-accused deniability, or an alibi of sorts, but placed her at the scene at relevant times and fixed her, not them, with potentially incriminating behaviour.
Finally, I accept, as Ms Guillerme said in her police statement, that she was scared, and that she told Mr Lovison she was sorry when her co-accused were yelling at him in the car. Thus, while she believed he was going to be assaulted, she was not so callous as to be unfeeling about that prospect or in any way emboldened by the fact that her co-accused were armed and acting aggressively. Instead, she was troubled, and at least offered him an apology, hopelessly inadequate though it was in light of what, beyond her contemplation, was in fact about to happen after she left.
Overall, while it is still a serious crime, Ms Guillerme’s offence of manslaughter is, I think, a good deal less serious than many other instances of the offence encountered in practice.
Personal and psychological history
Introduction
I turn now to Ms Guillerme’s personal and psychological history and presentation in more detail. Much of the following information was conveyed by Mr Desmond in his written and oral submissions and in the various reports and references he put into evidence, without objection.
Family
Ms Guillerme is the younger of two children born to Pam and Lloyd Guillerme, who are in their early sixties. While their connection was tense in the past, she now has a positive relationship with her family. Of her life with them, Ms Guillerme said, “It was amazing … we’d go camping all the time … fishing, the snow, the beach.”
Schooling
Ms Guillerme grew up in Moe and attended the South Street Primary School from Prep to Grade 6. She had a good ability to learn and enjoyed school but was often bored. She had many friends and no behavioural problems.
Ms Guillerme attended the Lowanna Secondary College until competing Year 12 in 2014. She participated in competitive gymnastics and netball but let the gymnastics lapse in Year 10.
Teenage pregnancy and abortion
As a teenager, and while still at secondary school, Ms Guillerme became pregnant and underwent a second-term abortion. This was an immensely distressing experience, and especially so as no-one talked to her about it.
Unlike the woman in the Ben Folds song Brick, Ms Guillerme did not have a partner buying her flowers or trying, even if failing miserably, to understand the agony of her plight when she was “balled up on the couch”. And yet she was only fifteen — little more than a child. In fact, while it might be apt to describe her as a young woman back then, she was still only in middle school, a child in law, facing rather adult concerns without the support she needed.
Her relationship with her parents, especially her mother, changed after the abortion. She said, “If she saw me self-harm, she’d get angry … never talked about the termination.” This was not said in blame. Her mother must have been at her wits’ end; and her father beside himself with worry.
After the termination, which remained “a big secret” at school, Ms Guillerme isolated herself from friends. She told psychologist Ms Lechner, “I nearly failed on attendance in my senior years [of school] … I slept through most classes [and] didn’t want to be there.”
Unsurprisingly, Ms Guillerme marks this event as the precipitant to her parlous mental health and drug abuse. Troublingly, she continued to self-harm until the time of her arrest.
Post-secondary training and employment
After leaving school, Ms Guillerme took on a traineeship as an education support worker, at St Michael’s Primary School in Traralgon. She held this position for twelve months but relinquished it when charged with drug-related offences.
She started, but did not complete, a Bachelor of Teaching at Monash University, at the Berwick Campus.
She also worked at Subway, and in a number of hospitality positions, either on a full-time basis or in a couple of casual or part-time jobs at the same time.
While on bail on the present matter and before she returned to custody in November, Ms Guillerme had been working at the Café Piccolo in Yarragon, a position she had held for about nine months. She told Ms Lechner that her employer is aware of this matter and is “very affirming”. This is corroborated by a glowing reference from her employer, Jane Beasley. Ms Beasley describes Ms Guillerme as having a strong work ethic, and as respectful, honest and loyal. She explained how Ms Guillerme was quite reserved at first but later became confident and a valued team member, one able to train others. Ms Beasley recommends her, and she hopes “to continue this journey with her for many years to come”.
If I may say so, I think that the world is a far better place because of those like Ms Beasley, who are prepared to take people as they find them, and give them a chance when others might not.
Intimate relationships
Ms Guillerme has not been involved in any healthy intimate relationships.
At fifteen, she was in a relationship with a youth named Paul. She said that “he’d pressure me to have sex, locked me in a closet naked … didn’t hit me but smashed things around me or on me”.
Her next relationship was with Adrian, a man in his thirties who was also her drug-dealer. He was both physically abusive and psychologically controlling. She said:
It took a long time to get away from him … I concocted a huge lie to my parents that I’d moved out with a same-age friend … I had no belongings … He’d have someone sitting outside my work. I had no friends, could only visit my parents for an hour and he’d start messaging me … He controlled what I used … It was terrifying getting out of that. [He said] he’d kill himself … He broke into my friend’s place, burnt my eye with a cigarette, nearly ran me over with his car … He cut my hair off at the base of my ponytail … Even now, he lives in Moe, and I refuse to go down his street … I see a [car like his] and my heart races.
Her next relationship was with Brendan, a single father. This was somewhat reparative, but he ended up cheating on her.
Of her relationship with Mr Brown, she said, “He had two kids. He and his partner lived together, but both had different partners … But we were sleeping together.” She considered it more of a “friends with benefits” arrangement.
At the time of Ms Lechner’s report, Ms Guillerme was not in an intimate relationship.
Presentation at interview with Ms Lechner
Ms Lechner’s principal consultation with Ms Guillerme was conducted on 2 August last year, when she was still facing a murder charge.
Ms Lechner considered her affect to be appropriate to the matter at hand, with her becoming tearful on occasions. Her mood was lowered but no longer to clinical proportions. She was most depressed about the prospect of returning to prison. She said, “I’ve made lots of progress, I’ve got a job … It could all go to nothing; I have no idea if my future is gone.”
Ms Guillerme said that she has felt suicidal in the past, as recently as just prior to her arrest, when she felt overwhelmed by life. She made a suicide attempt when with Adrian, by slashing her arm, for which she required stitches. She has also attempted to hang herself with bedsheets. She has engaged in self-harm by cutting herself and taking too many sleeping tablets. She said:
Before [my] arrest, things got really bad … It was my ongoing drug use; I was so fed up with the addiction, I couldn’t maintain jobs or relationships. I felt guilt, felt alone and a failure.
Ms Lechner found no evidence of psychotic processes. She did, however, find that Ms Guillerme felt traumatized by the termination of her pregnancy, and within her relationship with Adrian. In Ms Lechner’s opinion, she evidences symptoms of PTSD in respect of that relationship.
Although not formally assessed in this regard, Ms Guillerme impressed Ms Lechner as being of average intelligence. Ms Lechner believes that she has the cognitive capacity to engage in reflective and consequential thinking under optimal conditions. When drug affected and/or highly emotionally aroused, however, her judgment and decision-making are likely to be undermined.
Ms Lechner considered Ms Guillerme able to identify triggers to her negative feelings but has been inclined to block out internal distress with drug use.
Ms Guillerme reported that she is now learning to talk to others. She thought the counselling in which she engaged in custody “was life changing”, and that it helped her “to heal a lot of old wounds” and apologise to her family.
Ms Guillerme remains highly anxious. She told Ms Lechner that there were podcasts about her and the case, and that she was terrified when released on bail. She said that “Facebook is full of death threats”, that there is a petition in Moe to prevent her return, and that her hairdresser would not see her. She panicked when she saw people she knew, and avoided town. Mostly, however, she feels angry with herself.
As to her relationships with others, Ms Guillerme said that being close to her family again had been very helpful in her recovery. She is grateful for their ongoing support. She was otherwise quite socially isolated, although she had support at work.
Ms Guillerme said she is hopeful of studying drug and alcohol counselling in an effort to assist others struggling with addiction.
Drug and alcohol history
As for her own history of substance abuse, Ms Guillerme reported that she began smoking cannabis at the age of fifteen (after the termination of her pregnancy). Prior to being arrested, she had an “[on-off] habit” and would “wind down before bed, one joint [or] a couple of bongs”.
At seventeen, she was using ecstasy “every weekend”. She was also using GHB, then “went off it” when first charged with drug offences at eighteen or nineteen, but then resumed its use with Mr Brown.
She began using ice (methylamphetamines) at eighteen. At first, it was occasional use, but this progressed to every weekend and then daily use at nineteen. She was using half a gram to a gram a week when arrested on the present matter.
Ms Guillerme has used cocaine “once or twice”, Ketamine “once”, and hallucinogens “a few times”.
Prior to her arrest, she was abusing Valium and Seroquel sourced on the street.
She has been prescribed anti-depressants in the past but, while in custody, she was weaned off Lexapro.
As for alcohol consumption, Ms Guillerme said that her bail conditions prohibited this. She used to drink on family holidays in Eden but was “not a big drinker”.
Account of offending to Ms Lechner
I mentioned earlier that Ms Guillerme’s account of the offending to Ms Lechner was consistent with her draft statement. In particular, she said that she thought that Mr Lovison “was going to get the shit kicked out of him”. She knew that her co-accused had “ill-intent” but she “didn’t think that anyone was going to lose their lives”.
On the night of the offence, she had consumed “ice and weed, quite a bit”, but added, “I don’t know how much … a lot of it is very fuzzy.” She regards herself as “such a different person to that now”.
Ms Guillerme told Ms Lechner that she “only found out [Mr Lovison] was dead through the news”. I accept, as she said in her signed statement, that, the night after Mr Lovison was taken into the bush by her co-accused, she told Mr Brown that she was scared. I also accept that she was in fact scared, for, as she also told Mr Brown at that time, she “would be the easiest target when [Mr Lovison] returned and wanted revenge”. This, of course, is consistent with a belief that he was alive then. But I do not accept the implied assertion, if intended, that she had no awareness that he was, or might have been, dead until this fact was in the news. On the contrary, given that, after Mr Brown returned to the car and told her she would be better off if she did not ask questions, she must have at least suspected that he was dead by the time she was told to move his pushbike from the forest, which occurred well before his disappearance was even reported to police, let alone in the news.
Ms Guillerme said that she had “no idea how to deal with the police”. Her experience with them was during the time that she was with Adrian, and, she said, “It was not positive.” She said she asked Mr Brown how to deal with things, and that he told her what to say. I accept that to be so.
As for Mr Lovison’s death, Ms Guillerme found it “very hard to accept a lost life”. She acknowledged that “a lot of people are in pain because of his death”. She feels that she is “a bad person” but believes that, in fact, “deep down”, she is not.
Ms Lechner’s discussion with Ms Guillerme’s mother
Ms Lechner spoke to Ms Guillerme’s mother Pam by phone on 15 August 2022.
Pam Guillerme said that her daughter is “going pretty [well], getting on with life the best she can at the moment, living in limbo”. Her difficulties, Mrs Guillerme believes, stem back to the termination of her pregnancy at fifteen, but admits that the distress associated with that decision was largely hidden from her. Mrs Guillerme said that her daughter “was a great student” and successfully applied for a Kwong Lee Dow scholarship “but lost interest in her studies”. She and her husband “knew nothing about the abusive relationship” but “suspected that something was wrong”.
Mrs Guillerme said that prison “was the best thing that happened to her [daughter]”. She added, “We’ve got our old Sam back, she laughs, has a joke with us.” However, she was worried that a return to prison “would be a backward step for her”. She added, “She did all the courses that were available to her. She can’t be rehabilitated more than she is.”
Mrs Guillerme confirmed that her daughter is determined to undertake study in the field of drugs and alcohol “so that she can help people before they get to the stage that she did”.
Ms Lechner’s other opinions
In Ms Lechner’s opinion, when she saw her, Ms Guillerme was making positive progress with respect to her mood and her recovery from drug use. She considered it too early to predict whether there would not be future relapses to drug use and mental health problems. However, given Ms Guillerme’s sustained improvement despite the stress of the pending court hearing, and the antipathy towards her in the general community, Ms Lechner considered that there was reason for hope that her recovery will be long-term. This prospect was all the more promising given that she had engaged well in drug and alcohol counselling and with treatment, as indicated by a CISP report and letters from Forensicare, all of which are in evidence.
Ms Lechner observed that Ms Guillerme expressed sorrow for Mr Lovison and his family, and opined that she remains very regretful for her involvement in the offending.
Ms Lechner considered Ms Guillerme’s current risk of reoffending to be low. Matters driving her to this view included her good family support, employment, improved mental health and cessation of substance abuse; her insight regarding how she found herself in this situation; and her victim empathy.
Given her significant progress towards recovery, however, Ms Lechner considered that a return to prison would be immensely demoralizing and would be likely to result in a return of her depressed mood.
In her addendum report, written in late-August, Ms Lechner addressed the question whether Ms Guillerme’s “condition” contributed to her offending behaviour. She said this:
… Ms Guillerme’s level of drug intoxication coupled with her depressed mood would no doubt have adversely affected her ability to exercise good judgment and decision-making, to think clearly about the potential consequences of her actions and [perhaps better to anticipate] what might happen to the deceased. She maintains that she believed that the victim would “have the shit kicked out of him” (assaulted) with no idea that he could or would lose his life. She did not, at the time, think through the consequences of being a party to the co-accused’s actions even though she was not a witness to what occurred. Ms Guillerme’s mental health and drug intoxication therefore contributed to her poor judgment in participating in the offence to the extent that she did, as she was not able to foresee the personal implications.
I note that she makes reference to “not wanting to know” or be party to further discussions. She stated in light of being the victim of violence herself, “I’ve never condoned violence … I don’t know why I went along with it … I was on a lot of drugs and not thinking clearly.”
Criminal history
Finally, in outlining her personal circumstances, I should mention Ms Guillerme’s prior criminal history, modest though it is.
In 2015, when she was nineteen, Ms Guillerme was convicted and placed on a community correction order for twelve months for offences of trafficking, possessing and using GHB and methylamphetamines, and possessing and using ecstasy. In 2017, she was convicted and fined for breaching that order, presumably by non-compliance with conditions. In 2018, she was convicted and fined for theft.
Significantly, Ms Guillerme has no prior convictions for offences of violence. The limited criminal history she does possess can have no impact on sentence, other than by providing further corroboration of her difficulties with illicit drugs from her teenage years.
Mitigating factors
Plea of guilty
I turn now to the mitigating factors urged by Mr Desmond, commencing with Ms Guillerme’s plea of guilty. This plea is a very significant matter, for several reasons.
First, as I explained earlier, her plea was entered in the face of an arguable defence. Many in her position would have taken their chances before a jury. A plea of guilty entered in those circumstances is of especial weight in mitigation.[8] It shows an added preparedness to accept responsibility and an admirable willingness to facilitate the course of justice.
[8]See, e.g., R v De Macedo (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 (per Phillips CJ, with whom Beach and Gobo JJ agreed).
Secondly, by avoiding the need for a trial, the plea is of additional utilitarian value beyond the usual in view of the backlog of cases and the associated strain on the criminal justice system resulting from the pandemic.[9]
[9]See, e.g., Worboyes v The Queen (2021) 96 MVR 344 at 356[35]-357[39] (per Priest, Kaye and T Forrest JJA). While the pandemic is having less immediate impact than it once did and things are improving, the fact remains that the criminal justice system as a whole is still under great strain and miles behind, and is likely to remain so for some time yet.
Thirdly, the plea relieves the need for witnesses to be called, and the related stress that usually comes with giving evidence. The fact that a similar array of witnesses will likely be required to give evidence at the trial of Ms Guillerme’s co-accused cannot diminish the legal reality that no witnesses are required in any trial against her. Similarly, the fact that some witnesses were cross-examined by her counsel at a committal hearing should not reduce the weight to be accorded to her guilty plea. After all, at that stage, she was facing a murder charge — which she denied and has since been withdrawn.
Finally, I accept that, along with other matters, her plea of guilty indicates remorse, to which I now turn.
Remorse
An important matter in mitigation is that, for several reasons, I am satisfied that Ms Guillerme is genuinely contrite for her offending and has insight into the irreparable loss suffered by Mr Lovison’s loved ones.
First, there is her plea of guilty and the circumstances in which it was entered.
Secondly, the observations and opinions of Ms Lechner, which I accept, show that Ms Guillerme is remorseful.
Thirdly, while there is likely to be an element of self-interest in her decision to undertake to assist the authorities, I am satisfied that her choice in this regard is also motivated by genuine remorse and a desire to atone for her wrongdoing by attempting to facilitate the administration of justice.
Finally, having observed her throughout the course of the proceedings in this Court, I am satisfied that Ms Guillerme is appalled at what she has done and the terrible impact her actions have had on others. Included in those observations are her decision to instruct her counsel to offer a public apology to Mr Lovison’s family in this Court, which Mr Desmond did, and the way in which she reacted to hearing the victim impact statements. It is plain that she was very troubled by what she heard, and by her offending.
Undertaking to assist the authorities
Next, there is Ms Guillerme’s undertaking to assist the authorities. For several reasons, this course amounts to a powerful factor in mitigation.
First, in accordance with that undertaking, Ms Guillerme signed a detailed statement to police that now forms part of the brief against her co-accused in their forthcoming murder trial. Further, she has promised to give evidence in accordance with that statement, if and when called upon to do so.
Secondly, Ms Guillerme’s undertaking is of especial importance to the administration of criminal justice given that her co-accused are alleged to have committed murder, the most serious offence in the criminal calendar.
Thirdly, on the prosecution case, they are the principal offenders, whereas Ms Guillerme’s role in the homicide is indirect, by way of complicity only, is not as grave, and indeed amounts to manslaughter, not murder. Thus, it is not a case where a principal offender has turned on his or her less culpable accomplice.[10] It is the converse.
[10]Compare Singh v The Queen [2021] VSCA 178 at [58] (per Emerton ACJ, Kyrou and T Forrest JJA).
Fourthly, while it is not suggested that Ms Guillerme has been, or is likely to be, exposed to the levels of personal risk often associated with those who become witnesses against others alleged to be involved in, say, organised crime or gangland killings or the like, it is well understood that there is always a risk of reprisals from cowardly types for breaching the “criminal code” by turning prosecution witness against anyone. In the argot, “dogs” are treated like dogs.[11] Further, that, on the prosecution case, the co-accused have committed murder over nothing more than a perceived ongoing illicit love tryst would cause any rational person, Ms Guillerme included, to believe that she is at risk of reprisals. At the arraignment, Mr Desmond advised that it is likely that she would be housed in “protection” because of these concerns. I accept that, whether in prison or in the community, Ms Guillerme sees herself as a marked woman, and will continue to do so for life.
[11]See, e.g., Singh v The Queen [2021] VSCA 178 at [47]. It has often struck me as an incongruous turn of phrase, since history shows that many (but not all) who are moved to such words, thoughts or related actions are kind to pets.
Fifthly, as I have said, I accept that, while there may be an element of self-interest in Ms Guillerme’s undertaking, I am satisfied that her choice also reflects her remorse and a willingness to atone for her actions.
Finally, Mr Rochford submitted that Ms Guillerme’s evidence at trial is expected to be of real and material assistance to the prosecution case. While part of her account concerns details of movements and events of which there is already some evidence, it also adds to that evidence. Further, other parts of her statement go to important matters in respect of which there is no other evidence, including the actions of her co-accused when in her presence at the forest. She cannot, however, say anything directly concerning the administration of GHB to Mr Lovison, as she was not present when that occurred, and knew nothing of it. The latter point notwithstanding, having considered her police statement and the evidence against her co-accused contained in the depositions, I consider that Ms Guillerme’s evidence is not only likely to be of real and material assistance but, in my estimation, that evidence will be crucial to the prosecution case. It strikes me that acceptance of her account of what she witnessed of her co-accused’s actions immediately prior to, at the time of and after their dealings with Mr Lovison in the forest is likely to be an essential step in proof of the prosecution case against them.
After the plea hearing, just last week, Mr Desmond advised the Court, via email, that those acting for the Director had informed him that Patrick Alan had since died. He was to be a significant witness in the co-accused’s murder trial. He was expected to give evidence of, among other things, witnessing Mr Price and Mr Brown talking of wanting to kill Mr Lovison.
Presumably, the Director will apply to have the evidence Mr Alan gave at the committal hearing put before a jury. That, however, will be a matter for the trial judge. But, even if that course is permitted, the prosecution still would have the potential impediment of not having such an important witness in the flesh before the jury. Further, the judge would be required to give firm directions about such evidence, including as to the potential disadvantages flowing to the co-accused from the inability of counsel to cross-examine Mr Alan in the jury’s presence in the context of the trial that is then being run.
As I understood Mr Desmond’s submission, it is that, either way, Ms Guillerme’s evidence is now rendered of greater relative importance in the case against the co-accused than had been envisaged at the time of the sentence indication and the plea, and thereby “reinforces the importance of [her] undertaking and assistance to the [prosecution] in the forthcoming trial”. Mr Rochford advised, by email, that he had no submission to make in response.[12]
[12]Neither party sought to make further oral submissions on the point.
I accept Mr Desmond’s submission, and will act on it. This sad turn of events does indeed reinforce the importance of Ms Guillerme’s undertaking as a factor in mitigation. That said, as is apparent from my earlier remarks, I had already come to the view that her evidence would be crucial anyway.
The availability of a “co-operation discount” on sentence is of vital importance to the administration of criminal justice. It serves the public policy objective of encouraging offenders to provide information and other assistance which will help bring other offenders to justice.[13] Equally, the discount must not frustrate the principle of adequate punishment for serious offending.[14]
[13]Mejia (a pseudonym) v The Queen [2020] VSCA 141 at [1] (per Maxwell P, Beach and Weinberg JJA).
[14]Singh v The Queen [2021] VSCA 178 at [35] & [58].
I note that Ms Guillerme could not be characterised as a so-called “true informer” — that is, one who, for example, as a member of an organised crime syndicate, goes undercover to secure incriminating information and then gives evidence about it, and does so at great personal risk. Thus, she is not entitled to the highest level of discount that sometimes applies in those cases.[15]
[15]See, e.g., Singh v The Queen [2021] VSCA 178 at [34].
However, for the reasons I have given, I am persuaded that the statement she has made, her promise to give evidence as required, the risks and fears flowing from the course she has taken, and the value of her proposed evidence, which, collectively comprise her undertaking, combine to form a powerful mitigating factor warranting a very significant discount on sentence. As will be seen shortly, when the reverse mathematics are done, it turns out that the discount that I have allowed for her undertaking represents a reduction of two-and-a-half years — or a bit over 40 percent — of the head sentence I estimate I would have imposed otherwise.
Relatively young age
Next, there is Ms Guillerme’s relatively young age to consider. While, in some ways, she has had some pretty unfortunate life experiences well beyond her years, the fact remains that she was aged only 23, nearly 24, at the time of the offending, and is only 26 now.
Common experience tells that the young may not think through the risks of their actions as well as the older. It is one of their follies. In this way, a younger offender’s moral culpability may not be as high as it would be in a case if the same offence were committed by an older or more mature person. The law recognises this, and often places greater emphasis on rehabilitation, both its prospect and its pursuit, the younger or less mature an offender is.
Notwithstanding that her offence is serious, and while not a youth, Ms Guillerme was and is, in my view, young enough for the principles concerning younger offenders to operate in her favour in a way that is commensurate with her age, maturity and circumstances. In particular, in light of the position in which she found herself vis-a-vis Mr Brown and Mr Price, it is appropriate to allow some concession to her relatively young age and to emphasise the importance of rehabilitation in sentencing her.
Character
It is also significant that Ms Guillerme has no relevant criminal history to speak of, and certainly none for offences of violence. Apart from her struggle with drugs — which I accept had its genesis in her troubles as a teenager — Ms Guillerme appears to be of essentially good character. She has shown this in various ways, including by her attitude to her crime, her preparedness to rid herself of illicit drug abuse, her work with Ms Beasley, and her recognition and acceptance of the support she enjoys from her family. This, I think, also augers well for her prospects of rehabilitation, to which I shall turn now.
Prospects of rehabilitation
In addition to her positive character traits, there are several factors that convince me that Ms Guillerme has made great strides towards reform and that she has excellent prospects of making even greater rehabilitative gains over time.
As will be apparent, some of these considerations are themselves mitigating factors, or they interact with and potentiate each other. Thus, they include: Ms Guillerme’s plea of guilty, despite an arguable defence and despite the belief that, by entering that plea, she would in all likelihood be returned to prison; her genuine remorse; her undertaking to assist the authorities, despite an understanding of the hardship and risks that come with such a decision; her efforts at drug counselling and treatment; her capacity to work productively; her plans and hopes for the future; the support she enjoys from her family; and her appreciation and acceptance of support, both from professionals and her family.
In proof of some of those matters, Mr Desmond put in evidence a joint reference from Ms Guillerme’s family, written by her mother. In addition to repeating some of the information she provided to Ms Lechner, including as to her daughter’s positive employment experience with Ms Beasley, Mrs Guillerme said this:
Since Samantha was granted bail and allowed to come home with us, she has rebuilt her life and is now an independent, working, stable part of the family and [the] community.
Only a few weeks after being home, she secured a casual job and worked very hard to save money and get her life back on track. [She] saved enough money to purchase a car which gave her some independence and opened up more employment opportunities.
…
Samantha is trying her very best to redeem herself to her family, friends and community. She is now back to the loving, caring, supportive and funny person we once knew. As a family, we have managed to get away for a few short camping trips which have allowed some deep sharing and caring talks which has been invaluable to us all.
…
Samantha is fully aware of the choices she has made in the past and is prepared to [accept] the consequence[s] for her action[s]. Her time already spent in [prison] was a massive [wake-up] call. The positive changes in her have been huge and such a joy to see. …
Both Lloyd, myself and our family have always been here and supported Samantha through these tough times and will continue to do so into the future whatever that may be. We love our girl and are so grateful to have her back home with us and are so proud of the way she has managed to turn her life around.
I accept the contents of this reference, which show — compellingly, I think — the rehabilitative gains Ms Guillerme made on bail and bode very well for her future prospects.
Deterioration of mental health if returned to prison
Next, Mr Rochford accepted that, in all the circumstances, including Ms Lechner’s opinion, it is open to find that a return to custody would be likely to result in a resumption of Ms Guillerme’s depressed mood. This, in turn, would make her further imprisonment more burdensome. I accept that this prospect was, and is, all the more probable given her understandable concerns resulting from her changed status as a prosecution witness in a murder trial.
COVID-19 restrictions in custody
Finally, it is now notorious that time spent in this State’s prisons has been more onerous than usual in the last few years as a result of the pandemic’s effects on incarceration protocols. Among other things, those protocols have involved reduced access to programmes and family visits for prisoners, as well as more frequent and longer periods during which they have been locked in their cells, sometimes for twenty-three hours a day. There has also been the ever-present concern associated with contracting the virus within the confines of custody. While these restrictions have varied in their intensity as the threat of the virus has waxed and waned, they have applied, in one way or another, to the whole of Ms Guillerme’s two periods of incarceration. This additional hardship operates in mitigation of sentence.
Sentencing purposes
I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
General deterrence, denunciation and just punishment are important sentencing purposes in this case. All should understand that a person complicit in an unlawful and dangerous act that causes the death of another, even if death and the means by which it is caused by others are not foreseen, usually will result in punishment by way of a substantial prison sentence for the crime of manslaughter.
As for specific deterrence and protection of the community, those purposes, while relevant, have largely been achieved already by the two periods Ms Guillerme has spent in custody, and the conditions and circumstances of her incarceration, as well as the salutary effect that the criminal justice process has had on her. Further, the weight to be given to those sentencing purposes is reduced a good deal in view of her plea of guilty, remorse, undertaking, and prospects of rehabilitation, and the absence of any violence in her history. I think it is very unlikely that Ms Guillerme would ever again be a party to such an offence or any other act of violence.
Rehabilitation is an important purpose in fixing sentence in this case. The gains Ms Guillerme has already achieved, when coupled with her excellent prospects of further reform, make rehabilitation a sentencing purpose that must be afforded substantial weight. It is also necessary to recognize the interplay between rehabilitation and protection of the community. In all likelihood, Ms Guillerme will be returning to the community shortly. It is therefore in the community’s interests that her prospects of rehabilitation be maximised, so that, when she is released from prison, her risk of reoffending is as low as it reasonably can be and her chances of successful reintegration into society are as strong as they can be.
Current sentencing practices
Introduction
As far as I can determine them, I have had regard to current sentencing practices for manslaughter. This consideration is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the synthesis.
Sentencing statistics for manslaughter
Sentencing statistics show that, in respect of prison sentences for manslaughter for the period from 2015-16 to 2019-20, they ranged in length from about one-and-a-half to thirteen years. The average term over the whole period was eight years and five months, and the median and the mode were nine years. The median non-parole period was six years, and the mode was five years.[16]
[16]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 249, April 2021, pp 3-5.
These statistics are, however, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations — such as the gravity of the particular offence and the accused’s role in it; whether or not there was a plea of guilty, an undertaking to assist the authorities, relevant prior convictions, or other significant aggravating or mitigating factors; the age of the accused; and so on. Nevertheless, they do give some guidance.
Case comparisons
Sometimes, case comparisons may assist in gauging current sentencing practices. With this in mind, helpfully, counsel referred me to some sentences imposed for manslaughter where the accused had pleaded guilty and given an undertaking to assist the authorities in the prosecution of co-accused.[17]
[17]See, e.g., Levy v The Queen [2020] VSCA 44 (Weinberg JA, Hargrave JA and Croucher AJA) (5½y/3 ½y); Mitchell v The Queen [2018] VSCA 158 (Whelan, Priest and Beach JJA) (Co-offender A: 5y/3¾y); and DPP v “A” (restricted) [2022] VSC 156R (Jane Dixon J) (4y4m/2y2m).
One case I shall mention is R v O’Donnell.[18] In 2015, Mr O’Donnell and two others burgled a private residence at night. They believed that the occupant, an elderly man, would not report the offence because he was growing cannabis there. During the burglary, one of the co-offenders brutally assaulted the man in his bedroom, including by cutting his arm with a knife. From another room, Mr O’Donnell yelled at his co-offender to stop the assault, but with no effect. So, he went into the room and told him again to stop, but still he took no notice. After leaving the room and returning yet again, Mr O’Donnell persuaded his co-offender to desist this time. When the intruders left the house soon afterwards, the man was still alive, but he died later.
[18]R v O’Donnell [2016] VSC 390 (Emerton J) (3½y/2y).
Mr O’Donnell was charged with murder but entered an early plea of guilty to manslaughter. He made a statement implicating his co-offenders, and undertook to give evidence against them. He was aged 49, had an early life of appalling disadvantage and abuse, and struggled with alcoholism. His criminal history was substantial, albeit limited and stale in respect of violence. He had a good work history, was remorseful, and had good prospects of rehabilitation. In 2016, Emerton J imposed a sentence of three-and-a-half years’ imprisonment with a non-parole period of two years.
Ms Guillerme’s offence is arguably less serious than Mr O’Donnell’s, and her personal and mitigating circumstances seem to be more deserving of leniency. On the other hand, my impression is that sentencing practices for manslaughter have increased, even in the six or seven years since 2016.
I have considered this sentence carefully, along with those to which counsel referred, and many others. I found those sentences, and the reasons given for imposing them, instructive in gauging the order of sentence imposed in cases with features similar to the present matter, and for manslaughter more generally, and the extent to which those sentences tend to be affected by aggravating and mitigating factors.
However, while more nuanced comparisons may be made, it is almost always difficult usefully to compare other sentencing decisions. No two cases are ever truly alike. None of those considered was quite the same as Ms Guillerme’s case. And, in any event, sentences are not precedents to be applied or distinguished. I can say, though, that the sentence I am about to impose is, in my view, consistent with those other sentences, when regard is had to the various differences and similarities.
In the end, as always, because of the limits of the process of comparison, both as a matter of fact and in principle, I have been driven to rely mostly on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for Ms Guillerme’s offence of manslaughter.
Submissions
While careful not to go beyond a prosecutor’s role, Mr Rochford submitted, at the indication hearing, that Ms Guillerme should be sentenced to a term of imprisonment with a non-parole period that would see her return to custody. I took him to adopt that submission for the purposes of the plea hearing.
As I understood Mr Desmond, he accepted that, while a return to custody would be very onerous for Ms Guillerme, especially in light of the hardship that besets prosecution witnesses in prison, it would be difficult to resist the imposition of a sentence of the kind urged by Mr Rochford. He did not submit that she should be sentenced to “time served” or the like.
Sentence
Head sentence and non-parole period
I turn now to impose sentence.
Ms Guillerme, would you stand, please?
The law set down by the legislature is that, once a sentence indication is taken up at the first available opportunity, as here, a court must not impose a more severe sentence than the maximum total effective sentence indicated.[19] As counsel pointed out, however, a less severe sentence may be imposed.
[19]See s 209(1) of the Criminal Procedure Act 2009 (Vic).
After hearing the matter now in full on the plea, and having reflected on all of the competing considerations in the interim, I have decided that it is necessary and appropriate to impose a slightly lesser sentence than the one I indicated previously.
I should add that I considered whether a term of imprisonment equal to the period Ms Guillerme has already spent in custody, if combined with a community correction order,[20] would be an appropriate sentence.[21] I concluded, however, that, as compelling as the mitigating factors are, such a sentence would not adequately reflect the seriousness of the offence or the purposes suggesting a heavier sentence.
[20]Pursuant to s 44 of the Sentencing Act 1991 (Vic).
[21]The fact Ms Guillerme has given an undertaking to assist in the prosecution of her co-accused would allow such a sentence to be imposed despite the usual prohibition on doing so in respect of a so-called “category 2 offence”, as manslaughter is (see ss 3 and 5(2H)(a) of the Sentencing Act 1991 (Vic)).
Instead, I accept Mr Rochford’s submission that a head sentence of imprisonment with a non-parole period is necessary to meet all sentencing purposes. However, that sentence must be a good deal shorter than is commonly imposed for manslaughter and, as I have said, a little less severe than the sentence I indicated previously.
Balancing all matters, Ms Guillerme is convicted of the manslaughter of Mr Lovison and sentenced to three-and-a-half years’ imprisonment with a non-parole period of one year and three months (or fifteen months).
This is a short non-parole period, both in absolute terms and as a proportion of the head sentence. As she had been on bail for over a year and was doing so well, it was particularly onerous and potentially destructive for Ms Guillerme to be returned to custody upon arraignment on 4 November. This would have been all the more difficult for her as a marked woman, given her new status as a prosecution witness. While all matters go to both the head sentence and the non-parole period, I think that these considerations, together with her plea of guilty, remorse, age, and excellent prospects of rehabilitation, the other hardships of her incarceration, and the expected value of her evidence for the prosecution, are entitled to additional weight in fixing the non-parole period.
The structure of this sentence allows the possibility that Ms Guillerme may be supervised and supported on parole for a considerable period. Should this occur, it is likely to assist in her continued rehabilitation and therefore should also redound to the benefit of the community in the longer run.
I appreciate that, to some, and especially to Mr Lovison’s family, this may seem to be a very light sentence for manslaughter. But it must be remembered that s 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. In my view, the proper application of this provision — which reflects the fundamental principle of parsimony — compels the sentence I have just announced.
Pre-sentence detention and parole eligibility
Pursuant to s 18 of the Sentencing Act, I declare that, including today, Ms Guillerme has served 430 days (or just over fourteen months) of pre-sentence detention under this sentence.
It follows that Ms Guillerme will be eligible to apply for parole within a month. While it will be a matter for the Adult Parole Board, since she is due to give evidence on a pre-trial hearing pursuant to her undertaking in March, it would be preferable for the administration of justice if she were released on parole as soon as practicable after she becomes eligible.
Sections 6AAA and 5(2AB) of the Sentencing Act
I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Ms Guillerme’s plea of guilty. This is a difficult and somewhat artificial exercise at the best of times. For example, absent the guilty plea, it is likely that I would have made less favourable findings in respect of remorse and prospects of rehabilitation, and assigned different weight to the sentencing purposes of specific deterrence and rehabilitation. Thus, it is impossible precisely to isolate the discount attributable to the plea and declare the sentence I would have imposed but for this mitigating factor.
But the task is complicated further by the existence of Ms Guillerme’s undertaking to assist the authorities, which, presumably, would not have been given had she not pleaded guilty. While theoretically possible, I think it is too hard to estimate the sentence I would have imposed but for her plea of guilty while also assuming she gave the same undertaking. Thus, I decline to make a declaration of that type in this case.
That said, given the importance of the undertaking as a mitigating factor, and notwithstanding that there is no statutory equivalent of s 6AAA vis-à-vis undertakings, I think it is preferable to make two declarations — one of the estimated sentence absent both the guilty plea and the undertaking, and the other assuming the plea of guilty but absent the undertaking. I recognise that this approach may be regarded as inconsistent with the notion of the intuitive synthesis in sentencing.[22] But these declarations will show more clearly, albeit not precisely, how the two most significant mitigating factors have impacted separately on sentence.[23]
[22]The same may be said of the process prescribed by s 6AAA. See also R v Johnston (2008) 186 A Crim R 345 at 349[16] (per Nettle JA, with whom Buchanan JA and Ashley JA agreed) and the cases cited.
[23]See, e.g., the approach of Nettle JA in R v Johnston (2008) 186 A Crim R 345 at 349[15]-352[30].
Thus, my best estimate is that, had Ms Guillerme not given the undertaking and had she not pleaded guilty but been found guilty of manslaughter following a trial, I would have imposed a sentence in the order of eight-and-a-half years’ imprisonment with a non-parole period of six years.
Secondly, assuming her plea of guilty but without the accompanying undertaking, I estimate that I would have imposed a sentence in the order of six years’ imprisonment with a non-parole period of three years. Thus, as I indicated earlier, since the head sentence actually imposed is one of three-and-a-half years’ imprisonment, the reverse mathematics show that this represents a discount of just over 40 percent of the head sentence on account of the undertaking.[24] As it happens, that is the order of reduction, in percentage terms, that I consider appropriate in all the circumstances and having regard to the principles concerning co-operation discounts.
[24]In fact, 41.67 percent, to be more precise (as 2.5/6 = 0.4167).
As required by s 5(2AB) of the Sentencing Act, I formally announce that I have imposed a less severe sentence than I would otherwise have imposed as a consequence of the undertaking given by Ms Guillerme. The fact and details of her undertaking will be noted in the records of this Court.
Lastly, I note that, as Ms Guillerme acknowledged in evidence before me on 4 November, if she failed to fulfil her undertaking, the Director would be entitled to appeal and the Court of Appeal could set aside the sentence I have just imposed and substitute a sentence that the Court considered appropriate having regard to the failure.[25]
[25]See ss 291-294 of the Criminal Procedure Act 2009 (Vic).
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