R v Menzies
[2020] VSC 169
•9 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0246
| THE QUEEN |
| v |
| TRACY MENZIES |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 April 2020 |
DATE OF SENTENCE: | 9 April 2020 |
CASE MAY BE CITED AS: | R v Menzies |
MEDIUM NEUTRAL CITATION: | [2020] VSC 169 |
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CRIMINAL LAW – Sentence – Assist offender following murder – Deceased shot in head by co-offender Cross in presence of offender – Offender suggested burning the body to make killing look like suicide – Drove eye witness to train station to leave Geelong – Travelled interstate with Cross and co-offender Sell – Prior criminal history – On CCO at time of offence - Late guilty plea – Reasonable prospects of rehabilitation – Parity – Implications of COVID-19 pandemic – Just punishment – Denunciation – Deterrence – Rehabilitation – Sentence of 2 years 6 months’ imprisonment with a non-parole period of 1 year 2 months – But for plea of guilty, sentence of 3 years 6 months’ imprisonment with non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Pickering | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C Terry | Matthew White & Associates |
HIS HONOUR:
Introduction
Tracy Anne Menzies, you have pleaded guilty to assisting an offender following a murder, and have admitted prior convictions contained in a criminal record filed against you.
The maximum penalty for the crime to which you have pleaded guilty is imprisonment for 20 years.
Facts
The essence of the crime to which you have pleaded guilty was assistance you provided to your friend Nicholas Cross (‘Cross’) after he murdered a young woman named Maddison Pante in your presence in a ‘glamping’ tent erected at the Geelong Showgrounds on the morning of 3 December 2018.
Ms Pante was 29 years old at the time of her death. Sadly, in the lead-up to her death, she had apparently become involved in the use of drugs. Her parents had been endeavouring to provide assistance and support to her, but she was not accepting of this support. On 30 November 2018, Ms Pante left her parents’ home and later contacted a friend Brodi Costello (‘Costello’) to arrange a place to stay. Ms Pante and Costello had been involved in an intimate relationship for some weeks, and had been using drugs together during that period. Cross regularly sold drugs to Costello, and through Costello, Ms Pante also knew Cross. You were a friend of Cross, having known him for some months. You deny being involved in a relationship with him beyond friendship.
From 30 November to 2 December 2018, Ms Pante and Costello stayed together at the Kardinia Motel in Geelong. On checking out of the motel, they went to stay in a ‘glamping’ tent provided by a friend of Costello named Eli Cashion (‘Cashion’) and erected by Cashion and Costello at the Geelong Showgrounds. The tent was five metres square and contained a queen size mattress, a bedside table and various appliances.
On the morning of 3 December 2018, Costello asked Ms Pante, who was not at the tent at the time, to bring some methylamphetamine (‘ice’) to him. Ms Pante telephoned Cross at 7.49am requesting the supply of drugs. She provided directions to Cross to enable him to find the tent.
At about 8.00am, Costello heard voices outside the tent. He went to the door and observed Cross and you in front of a grey Suzuki Swift motor vehicle. This vehicle was stolen and had stolen plates affixed. Costello invited the two of you inside the tent. Cross told Costello that he owed $20 to Ms Pante.
Ms Pante arrived at the tent shortly afterwards in a vehicle driven by an acquaintance, Jesse Hollonds. Hollonds remained in his vehicle and was later joined by another person, Jake Fry. Ms Pante got out of the vehicle and spoke to Cross outside the tent. Not long after this, you were inside the tent with Cross, Costello, and Ms Pante. Costello received a call from Centrelink and sat on the bed dealing with the call. After he had been on the phone for a few minutes, he noticed that Cross and Ms Pante were having an argument. He could not hear what it was about. Ms Pante left the tent for a short time before returning and resuming her argument with Cross. By this time, Costello was still on the phone to Centrelink. You were seated on the bed behind him.
At about 8.43am, Cross removed a shortened firearm from his waistband or pocket and raised it in his right hand, pointing it towards the head of Ms Pante. From a distance of about 30cm, he fired the firearm into the right side of Ms Pante’s head with the intention of killing her or causing her really serious injury. She fell to the ground immediately, laying on her side. An autopsy performed the next day indicated that the bullet had passed through her brain, transecting the brainstem. The gunshot would have caused death very rapidly.
The shot was heard by Hollonds and Fry as they remained in the car. Upon seeing you, Cross and Costello leaving the tent, Hollonds drove away. Cross immediately told Costello to get in his vehicle. After initially refusing to do so, Costello complied. He was still on the phone to Centrelink. You got into the front seat of the Suzuki. Cross drove the vehicle away from the Showgrounds. In the car, there was a brief discussion between you and Cross in which you suggested that the shooting should be made to look like suicide. You said, ‘We’ll burn it, let’s burn it. How are we gonna cover this up?’ The two of you agreed to pay for another night for the tent site.
Cross drove back to the showgrounds, giving Costello money so that he could pay Cashion for the extra night. Cross decided to lock the tent, and then drove the vehicle to Belmont to buy a padlock. He sent a text message to Cashion confirming that another night had been paid for. He then drove back to the Showgrounds. Costello collected his belongings from inside the tent. Cross locked the tent using the padlock he had earlier purchased, leaving the body of Ms Pante inside.
Cross then drove you and Costello to the Corio/North Shore area where you and Costello got into a white Hyundai i30 vehicle. This vehicle was also stolen, and had been driven earlier by Cross. You then drove Costello to the North Shore train station. He departed Geelong on a train to his mother’s house in Colac. You returned to your home address in Dural Court, Bell Park. You arrived there at 11.26am and kept the Hyundai vehicle at that location until it was retrieved by Cross.
At 9.28pm that night, Cross drove you to Ann-Marree Davies’ (‘Davies’) house in Corio in the Hyundai. Cross informed Davies that the vehicle was stolen and offered to sell it to her. He also said that he had a gun which he was going to sell. He purchased some ice from Davies and left with you about 30 minutes later.
At about 1.36am on 4 December 2018, Emergency Services received a call reporting that a tent was on fire in the Showgrounds. The Geelong CFA arrived at the scene, observing flames 30 to 50 cm high, particularly at the rear of the mattress on the floor and on some nearby furniture. They extinguished the fire. They found the body of Ms Pante inside the tent. Police arrived shortly thereafter and established a crime scene. A forensic arson chemist concluded that the point of origin of the fire was the bed, and that it was probably ignited by means of a match or cigarette lighter.
At the request of Cross, you made several attempts to telephone a friend of Cross with whom you were acquainted named Daryl Sell (‘Sell’). Having failed to speak to Sell, at 2.20am, you then sent a text message to him asking him to contact Cross.
At 2.25am, Cross called Sell, who was staying in Cressy at the time. Sell informed a person whom he was with that his mate was in trouble.
At 9.45am, Cross drove you in the Hyundai to a shopping centre in Bacchus Marsh. The two of you then attended a nearby Coles Express petrol station where you went inside and paid cash for fuel pumped by Cross.
At 12.30 pm, you and Cross checked into a cabin at the Braybrook Discovery Park on the recommendation of Sell.
At 4.42pm, Cross sent a message to an acquaintance informing him that he had ‘survived’ from the ‘jacks’, and needed somewhere to sit until the heat died off. He indicated he would be going interstate the following day.
At 8.09pm, you, Cross and Sell attended at the Marketplace Shopping Centre in Sunshine in Sell’s Mercedes vehicle. You were detected on CCTV footage with your hair dyed auburn blonde from its previous dark brown.
On 5 December 2018, you attended with Cross and Sell at the home of a friend of Sell in Kurunjang. Cross attempted to clean the Hyundai vehicle. After some hours, you and Cross left in that vehicle. Sell left in his Mercedes.
Later, you, Cross and Sell attended an address in Werribee and purchased some ice, leaving a short time later.
Sell then assisted you and Cross to flee the State of Victoria by driving you both to New South Wales (‘NSW’) in his Mercedes vehicle.
At 7.30pm on 5 December 2018, Sell contacted a friend, Leif Telfer, via Facebook Messenger and organised to stay at his home in Greystanes, a suburb 29km to the west of the Sydney CBD. The three of you arrived there at 9.00pm that night. Sell stayed in the house with Telfer. You and Cross slept in the garage.
On Thursday 6 December 2018 at 3.45pm, members of NSW Police arrived at Telfer’s house and arrested Sell, who was sitting in the driver’s seat of his vehicle. You and Cross were located inside the premises. You both attempted to flee but were arrested.
A search of the garage in which you had slept located a loaded Lithgow .22 calibre rim fire, bolt action rifle with a saw-off barrel and butt stock and a container of .22 calibre cartridges. These items were found in a Nike bag on the bed in the garage. This firearm was consistent in appearance with the firearm used by Cross to murder Ms Pante. Ballistic tests could neither confirm nor disprove that it was the murder weapon. It was common ground before me, however, that it was the murder weapon.
By the time of your arrest, you had dyed your hair again, from auburn blonde to fluorescent red.
On 7 December 2018, you were extradited to Victoria along with the other two. You were transported to Victoria and taken to the City West Police Station where you were interviewed by police. You made no comment in the interview.
Your offending
The crime to which you pleaded guilty involved a number acts of yours from the time of the murder of Ms Pante on 3 December 2018 up until your arrest on 6 December 2018. The acts the subject of the charge all occurred in Victoria. Your plea of guilty confirms that the acts were committed by you in the knowledge that Cross was guilty of murder, and with the purpose of impeding his apprehension, prosecution, conviction and punishment for that crime. Those acts were:
· Your suggestion to Cross that the body of Ms Pante should be burnt to make it look like suicide;
· Driving Costello, a witness to the murder, to a train station to facilitate his departure from Geelong and away from the crime scene;
· Driving Cross’s Hyundai vehicle to your home address and keeping it there until it was retrieved by Cross;
· Sending a message to Sell requesting that he contact Cross;
· Paying for fuel pumped by Cross;
· Changing your hair colour so as not to be recognisable, to further Cross’s aim to avoid responsibility for his crime.
I make it clear that it is not alleged against you that beyond your suggestion about burning the body, that you were involved in the lighting of the fire or the destruction of evidence.
Objective gravity of your offence
Assisting an offender following a murder is an offence which attracts a maximum penalty of 20 years’ imprisonment, meaning that it is always a serious crime. By comparison, assisting an offender following any other crime can never attract more than a maximum penalty of imprisonment for five years.
It was submitted by Mr Terry on your behalf, however, that your particular crime of assisting offender was of a level of criminality significantly below that commonly seen. In support of that contention, whilst he conceded that your suggestion made to Cross to burn the body of Ms Pante was ‘callous and reprehensible and can’t be defended or excused’,[1] he submitted that the other things relied upon against you were ‘relatively discrete and relatively minor acts’.[2]
[1]Plea 57.
[2]Plea 61.
Mr Terry submitted that I should conclude that at the time you commenced to assist Cross, you were a vulnerable woman in whose presence an unexpected and horrific crime had occurred. You acted, so it was submitted, out of a misguided sense of loyalty, and at the start at least, in a moment of panic. It was put on your behalf that you found yourself involved in a situation with which you did not know how to deal, and you thereafter made a series of bad decisions.
Many crimes of assisting offender following a murder involve active steps having been taken by the offender to help the principal offender to move, destroy, hide or otherwise dispose of the body of the deceased person. Also common are instances of the concealment of other evidence, the making of false statements to investigators, and the laying of a false trail. Often the offending occurs over a substantial period of time.
In your case, these features were all absent. It is true that the callous and extraordinary suggestion to burn the body was yours, but everything you did must be seen in light of the fact that a shocking crime which was completely unanticipated by you had occurred in front of you, carried out by a person who you knew to be still armed with the firearm used to cause the death of Ms Pante. It is not claimed on your behalf that you acted under duress, but the fact is that what you said and did shortly after the shooting of Ms Pante cannot be seen to be the result of a calm, rational decision to involve yourself in the terrible crime of Cross.
That is not to say, however, that your offending was not serious. It was. Unlike many people being sentenced for a crime of assisting an offender following a murder, you actually saw the murder carried out right in front of you. You understood the horrific nature of the crime. Knowing that, you made the suggestion about the destruction of evidence, and then took part in other steps with the purpose of assisting the murderer to evade responsibility. Throughout it all, you associated yourself with the murderer for reasons which are not entirely clear on the material before me.
Your plea of guilty
You were committed to stand trial on this charge on 19 November 2019. A directions hearing took place in this Court the next day. No trial date was set. You applied for bail before me on 25 February 2020. Bail was refused on 28 February 2020. Not long after that, your legal representatives entered into discussions with the prosecution which led to your indicating an intention to plead guilty. You actually entered a plea of guilty for the first time on the day of the plea hearing.
Your plea of guilty, as acknowledged by your counsel, was a late one. That does not mean that it is not still a significant matter in mitigation. Mr Terry submitted that significant utilitarian value attaches to your plea. I agree that that is so.
On the question of remorse, Mr Terry acknowledged that whilst you have told him you are remorseful for what you did, aside from your plea of guilty, there is no objective evidence of that remorse. As for the plea of guilty, he invited me to ‘infer a degree of remorse’ from the fact of your plea.
This is not a case, therefore, of a well-established and deep sense of remorse being felt by an offender. I do consider, however, that your plea of guilty is indicative of a degree of remorse you now feel for your conduct in assisting Cross after his crime. It is unfortunate to say the least that after what you did, and what you have gone through since that time, you do not seem to have a better developed and stronger sense of remorse for you criminal conduct and its shocking consequences. The absence of strong remorse, however, is not an aggravating circumstance, merely the absence of what may have been a mitigating one. Hopefully with the passage of further time, and having had the opportunity to hear the heartfelt and sad words of the many victims of your offending, to which I will turn later, you will fully understand and deeply regret your selfish and criminal actions following the death of Ms Pante.
I take into account in your favour your plea of guilty.
Your personal background
You are 33 years of age. You were born and brought up in Geelong, and have lived there your whole life. You attended Norlane West Primary School and then Norlane High School, leaving school after completing year 7.
Your parents separated when you were only two years old. You remained living with your mother until you were 10. Then you moved in to live with your father with whom you stayed until your mid-teenage years, at which time you moved out on your own.
You have two sisters, Roseanne, aged 31, and Melanie, 35. You remain close to Melanie but have a strained relationship with Roseanne.
You suffered family violence in some past relationships. You have had ongoing issues with both prescription and illicit drugs throughout your adult life. You have reported having been diagnosed with depression, anxiety and social phobia. In some reports which were provided to me at the time of your bail application before me in February this year, you indicated a willingness to engage in counselling to address the underlying issues behind your drug use.
You have two children, Krystal, aged 12 and Benji aged 5 years. Both children were in your care until you were about 27 years old. The Department of Health and Human Services (‘DHHS’) became involved due to your issues with drugs. Krystal went into the care of your paternal grandmother, and Benji went into the care of your sister, Roseanne. They remain with those respective carers.
You have had no contact with your children since you were remanded in custody. You are strongly motivated to resume a relationship with them upon your release. You understand that this will not occur unless you are able to address your issues with drugs.
An important matter the subject of some discussion during the plea was the fact that for some years, you have been the beneficiary of a house in Bell Park through DHHS. Despite the fact that you have been in custody for most of the time since your initial arrest in this case, that house is still yours. Your father made enquiries recently and was informed by a representative of DHHS the house will remain available for your occupation until the middle of June.
Your prior criminal history
You have an extensive criminal history spanning the years from 2008 when you were 21 years old to the present. In that time you have accrued convictions and findings of guilt in relation to 32 charges over eight court appearances in the Geelong Magistrates’ Court. Your criminality has involved offences concerning drugs, driving, dishonesty, bail breaches, and in one case, reckless conduct endangering a person. Whilst it would be correct to say that your offending has generally been at a fairly low level, it has been of sufficient seriousness to warrant a number of terms of imprisonment, both actual and suspended, and a number of community correction orders (‘CCOs’), usually with conditions aimed at providing assessment and treatment for your drug use and mental health issues. You were on a CCO[3] for a range of offending at the time of your current offence.
[3]Some material indicates you may have been on more than one CCO at the time.
Importantly, you have no convictions for crimes of violence, and no convictions for crimes approaching the seriousness of that before the Court.
I have been told, and I accept, that much of your criminal history relates to your longstanding drug addiction.
Parity
Todd Sell was sentenced by Lasry J on 30 March 2020 for assisting offender following a manslaughter.[4] His Honour sentenced Sell to be imprisoned for 481 days, setting no non-parole period. He made a declaration as to 481 days pre-sentence detention, with the result that Sell was to be released forthwith.
[4]DPP v Sell [2020] VSC 147R (‘Sell’).
The principal of parity requires me to have regard to the sentence passed upon Sell when I am determining the appropriate sentence to be passed upon you.
As was stated relatively recently by the Court of Appeal in R v Philp:[5]
The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community’s sense of justice, for the reasons which Mason J gave in Lowe v The Queen:
‘Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community’.[6]
[5][2017] VSCA 320.
[6]Ibid [5] (Maxwell P and Croucher AJA) (citations omitted).
There is some complexity to the question of the relativity between your offending and that of Sell. There are many differences between your respective positions. Importantly, Sell was sentenced in respect of a much less serious offence than that for which you are to be sentenced, attracting a maximum available sentence of imprisonment for five years compared with the 20 year maximum for your offence. He was not present at the time of the unlawful killing of Ms Pante, and had no input into the lighting of the fire or attempted destruction of evidence. He only became involved upon being asked by you to contact Cross. Thereafter, he provided assistance as set out in the sentence. The most important aspect of that assistance was to drive you and Cross to NSW, where you all stayed at accommodation organised by Sell with a friend of his.
Another matter relevant in sentencing Sell was the fact of his early plea of guilty to the charge upon which he was sentenced. His offer to plead guilty came straight after the committal hearing. This is to be contrasted with the lateness of your agreement to plead guilty.
In spite of the lower maximum penalty and other matters which might dictate that Sell should receive a lower sentence than you, Mr Terry submitted that Sell’s offending involved the taking of more active steps and the provision of more actual assistance to Cross to avoid apprehension than did yours. His conduct included the suggestion of a place for you and Cross to stay in Braybrook and then driving the two of you interstate to stay in Greystanes.
Mr Terry submitted that the prior convictions of Sell were more serious than yours, a contention borne out by a consideration of his criminal record which was provided to me. In particular, Sell had a number of convictions for crimes of violence, whereas you have none.
Mr Terry also drew a distinction between the circumstances of you and Sell becoming involved in assisting Cross. In your case, you found yourself in the tent and witness to a crime which was entirely unexpected and shocking. Whilst there was no suggestion that you acted under duress, it was submitted that you did not make a calm and rational decision to involve yourself in your offending. Rather, you found yourself in a situation with which you did not know how to deal, and made a series of bad decisions thereafter.
By contrast, it was submitted that Sell made a conscious decision to assist Cross having been asked to do so.
Mr Terry submitted that in all of the circumstances, you should receive a sentence ‘broadly similar’ to that imposed on Sell. He submitted that a term of imprisonment approximately equal to the time you have already spent on remand, namely 384 days at the time of the plea hearing, combined with a CCO, would be such a sentence.
Mr Pickering submitted that in a number of respects, your offending was more serious than the offending of Sell. Aside from the significant fact that you committed a crime the maximum penalty for which is 20 years’ imprisonment compared with the five year maximum for Sell’s offence, a centrally important matter in your case was that you were actually present at the time of the murder and knew the enormity of what had taken place. Your decision to involve yourself in offending with the purpose of assisting Cross occurred in that context. In that respect, Sell was in a much less serious position.
In the end, having considered all of the circumstances of the relevant offending of you and Sell, and the personal background and other circumstances of each of you, I have found myself unable to accept the submission of Mr Terry that your crime and that of Sell should attract broadly similar sentences. I think your offending is more serious for a number of reasons, the most significant of which is that you knew precisely what had happened in that tent when an entirely innocent person was shockingly shot dead in front of you. You did nothing to try to help her, and within a short time of that event, actually encouraged the murderer to burn the body. Whilst you are not answerable for the setting of the fire, your suggestion was rightly described by your counsel as callous and reprehensible. Furthermore, such actions as were taken by you from that point onwards, were taken in full knowledge of the seriousness of the crime committed in the tent. You willingly associated yourself for the following days with a murderer whose only connection with you was that of a friend.
Whilst it is true that Sell’s prior convictions were more serious than yours, you had a reasonably lengthy criminal history yourself. Furthermore, you committed your crime when you were subject to one and perhaps two CCOs imposed by Geelong Magistrates’ Court. Your counsel correctly conceded that I should regard the fact that the offending occurred while you were subject to a CCO as an aggravating factor.[7]
[7]Zarghame v The Queen [2020] VSCA 74.
However, bearing in mind the fact that as I was told, you served a period of 21 days’ imprisonment for proceedings brought against you for the breach of the CCO, I must be careful not to punish you further for that breach.
In arriving at what I consider to be the appropriate sentence for you, I make it clear that I have had careful regard to the sentence passed by Lasry J upon Sell, and the respective circumstances of each of you.
COVID-19 implications
Mr Terry noted in his written outline and during the plea that the spread of the COVID-19 virus in the community has created widespread disruption to the criminal justice system and caused a marked increase in the burden of incarceration.
I was informed that personal visits to prisoners within the Dame Phyllis Frost Centre were ceased about four weeks ago. It must be expected that the cessation of visits will be an ongoing reality. You were accustomed to receiving regular visits from your father. The lack of such visits, it was submitted, has made and will make your time in prison more burdensome. I accept that unreservedly.
In addition, the circumstances under which prisoners are being held is regularly changing. Opportunities for work, for run-out time, and for access to courses and activities, have already been substantially affected, and that is likely to continue and worsen.
Furthermore, there is of course the risk of infection to prisoners within the prison. No matter the magnitude of that risk relative to the risks in the general community, about which I reach no conclusion, I can readily accept the submission of Mr Terry that there is a heightened sense of anxiety in the prison population about the risk of infection due to the fact that prisoners, unlike those in the wider community, are not in a position to control the risks or take measures to protect themselves. Also, although not a matter about which a specific submission was made, it is to be expected that those subject to incarceration would be understandably anxious as to the wellbeing of their loved ones outside the prison environment.
The implications of the COVID-19 pandemic have already been the subject of consideration by single judges of this Court and, on one occasion of which I am aware, by the Court of Appeal. In Brown v The Queen,[8] Priest and Weinberg JJA, whilst not expressing any general statements of principle, said:
We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[9]
[8][2020] VSCA 60.
[9]Ibid [48].
In sentencing Sell, Lasry J paid strong regard to the implications of the COVID-19 pandemic. He went as far as to say:
Where an accused person is on the cusp of being sentenced to the time already served in pre-sentence detention as in your case, in my opinion the present circumstances are a powerful reason to not impose any further custodial time unless that is necessary, for example, for the protection of the community. That does not apply in your case and I do not propose to do so.[10]
[10]Sell (n 4) [39].
In arriving at the appropriate sentence for you, I have had regard to the current implications of the COVID-19 pandemic, and the considerable uncertainty that the pandemic creates.
Victim impact statements
A large number of victim impact statements prepared by family members and friends of Ms Pante were filed in the Court and tendered during the plea. The authors of the victims impact statements and their relationship with Ms Pante were as follows:
Marlene Parrott Mother
Dale Parrott Father
Luke Parrott Brother
Peter Curypko Uncle/Godfather
Audra Curypko Aunt
Renee McKaskill Friend
John Parrott Uncle
Laura Robinson Friend
Melissa Evans Friend
Leanne Ormester Friend
Nikita Giel Friend
An initial challenge was brought by Mr Terry to the status of the various authors as victims, bearing in mind the definition of that term in s 3 of the Sentencing Act 1991 (‘the Act’). That provision indicates:
victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.
Mr Terry relied on some dicta of Weinberg JA in Landmark v The Queen (‘Landmark’)[11] in support of his initial position. However, after further discussion, Mr Terry did not maintain that position. He conceded that where there was material in the statements which pointed to an impact directly attributable to the acts which found your criminality in this case, the authors were properly to be seen as victims and the contents of their statements would be admissible.
[11][2015] VSCA 178 [18]-[25] (‘Landmark’).
The prosecution submitted that it would be appropriate for me to have regard to the admissible portions of the respective statements, disregarding those portions which were not admissible, pursuant to s 8L(6) of the Act. Mr Terry was, in the end, content for me to proceed in that fashion.
Of the above 11 victim impact statements, the first 9 were read aloud in Court by the prosecutor. I have had regard to the relevant content of all 11 statements.
Whilst the tragic and sudden death of a much loved person, Maddison Pante, is at the heart of the terrible anguish and distress felt by the authors of all of the victim impact statements, there is no question that the heartless and shocking way in which she was treated afterwards and the efforts made by Cross, with your assistance, to avoid responsibility, have added significantly to the pain and sense of loss of the respective victims. The victims understand that you are not to be punished for the murder itself, or for having lit the fire which engulfed the tent in which Ms Pante’s body lay. However, their correct understanding is that after the murder of Ms Pante, you did nothing to try to assist her or report what had occurred. Rather, you suggested that the body should be burnt, drove a material witness away from the scene, and continued to associate yourself with the murderer, eventually travelling interstate with him and changing your appearance in the meantime. You did all of this with the purpose of assisting him to avoid apprehension and prosecution.
The statements reveal that the victims are beset by lingering feelings of sadness and grief at the lack of normal human care and consideration shown towards their loved one after her death, and that there is an additional and substantial level of distress, grief and loss attributable to your offending, and their understanding of it.
I take the contents of the victim impact statements into account in arriving at an appropriate sentence for you, in the certain knowledge that no sentence I can properly pass upon you would go any way to alleviating their sense of pain and loss. I would simply like to assure all of the authors of those statements that I have read the statements and taken them into account.
Current sentencing practices
I have had regard to current sentencing practices in determining the appropriate sentence. In seeking to understand those practices, I have had regard, amongst other things, to the statistics maintained by the Sentencing Advisory Council in respect of charges of accessory to serious indictable offences and to a number of decisions on sentence in other cases to which I was referred by Mr Terry. He emphasised the limited use of such decisions in the circumstances, particularly in light of the considerable breadth of offending covered by the offence in question, and the fact that no single decision was in any way particularly comparable to this case.
Having taken the Court to one sentence the facts of which he placed at the upper end of the range of seriousness, and another which he placed at the lower end, Mr Terry placed your offending somewhere in between those two extremes.
Rehabilitation
It was submitted on your behalf that you have reasonable prospect of rehabilitation. The prosecution did not challenge that contention. The defence submission was largely based on your strong family support, the current availability of stable accommodation for you, and the fact that you have been willing to engage in steps to seek to rid yourself of your drug addiction.
I will sentence you on the basis that your rehabilitation prospects are reasonable, but I sound a strong note of caution. Your drug use has been a very important factor in much of your past offending, and would also seem to be relevant in your current crime. A number of opportunities have been extended to you in the past to try to do something about your problem. Unfortunately, you have not taken advantage of these opportunities. A clear illustration of that fact is to be found in your performance when released on bail by Coghlan J last year. Although you had been in custody for some months, and were in a position to receive drug support and counselling upon your release, and in spite of the support and encouragement of your father to stay away from drugs, you were unwilling or unable to do so.
Unless you actively engage in all supports available to you in order to try to get over your serious problem with drugs, your prospects of rehabilitation, far from being reasonable, would be poor.
Submissions by respective sides as to appropriate sentence
Mr Terry, as indicated earlier, submitted that an appropriate sentence would be a combination sentence involving a term of imprisonment of the length reflecting the period of time you have already spent on remand, that is, as at the time of the plea hearing, 384 days, and a CCO. I would then make a declaration as to your pre-sentence detention which would have the result of your being released from custody, effectively straight into the CCO.
Mr Pickering submitted that the appropriate sentence would be one consisting of a head sentence and a non-parole period. He stopped short of submitting that a combination sentence of imprisonment and a CCO would be outside the range. Indeed, in later written and oral submissions after the first hearing of the plea, the prosecution accepted that a combination sentence would be within the range of available sentences.
Having heard the plea hearing on 7 April 2020, I made arrangements for an assessment to take place of you to enable the preparation of a pre-sentence report under s 37 of the Act. The resulting report was provided to the Court late on the afternoon of that date, and was thereafter provided to the parties.
Mr Pickering provided a written outline of further submissions flowing from the content of the report. The matter was listed for further plea this morning. I heard further brief submissions from both sides.
The author of the pre-sentence report, Paul Sguerzi, assessed your general risk of re-offending as being high, using a risk assessment tool. He noted that your current CCO which began in 2017 is subject to contravention proceedings as a result of the current offending. He also noted that you had contravened what he described as your only other CCO in 2016. In the carrying out of his assessment of you, he spoke with the Case Manager at Geelong Justice Centre, Ms Ashleigh Quinn, regarding your progress on the current Magistrates’ Court CCO. What he was told was hardly encouraging. He said:
Ms Quinn advises that overall, Ms Menzies effort to address her conditions could be described as ‘inconsistent’. Ms Menzies engaged meaningfully in the supervision process and successfully completed an offending behaviour program. However, she failed to engage in individual counselling for drug treatment and to support her mental health.
Mr Sguerzi did state that you are willing to comply with a CCO, and that you engaged well during the assessment. He also considered that you are developing some insight into your offending behaviour.
He found you suitable for a CCO, and supported the imposition of conditions requiring unpaid community work, assessment and treatment for drug use, and assessment and treatment for mental health issues.
In light of the contents of the pre-sentence report, the prosecution maintained its submission that I should sentence you to imprisonment with a head sentence and a non-parole period. That sentence, it was submitted, would best address all of the relevant sentencing considerations. In particular, it was submitted that parole would provide more intensive support than that available pursuant to a CCO, and the severe consequences of a breach of parole would provide an added incentive to you to avoid further offending.
In oral submissions before me this morning, Mr Pickering expanded upon a matter raised by him in his outline of submissions following the provision of the pre-sentence report. He submitted that the absence of any expression of remorse detailed in the report was surprising. He acknowledged that the absence of remorse was not an aggravating feature, but submitted that it may be relevant to the need for specific deterrence and the prospects of rehabilitation.
Mr Terry submitted that the topic of remorse may not be expected to be dealt with in a report such as the CCO report, but accepted that other than the plea of guilty entered by you, there is no evidence of remorse before the Court.
Having considered all of the submissions, and had regard to the purposes to be served by the sentence I must pass upon you, about which I will say more in a moment, I accept the submissions of the prosecution. I do not consider that a term of imprisonment of the order of the period you have already spent on remand, combined with a CCO, would be a sufficient and proper response to your crime. I have determined that I should impose a term of imprisonment, and fix a non-parole period.
I should make it clear that in reaching this decision, I had regard to the current availability of your house in Bell Park for occupation by you, and the fact that that will not be the case for too much longer. It would obviously be highly desirable for you to have access to stable accommodation when you are released from custody. One attraction of the sentencing option urged upon me by Mr Terry was that it would have given me the power to dictate when you would be released from your sentence, and to ensure that this would occur while the house was still available to you. The imposition of a head sentence with a non-parole period would provide no such certainty, as your future release on parole would be entirely a matter for the Adult Parole Board. Whilst I express the hope that your house will remain available for your use if and when you are released on parole, a matter upon which I am not entitled to speculate, in the end, I considered that the requirement to pass an appropriate sentence would not permit me to accede to Mr Terry’s submission.
Important sentencing considerations
Mr Terry conceded from the outset of his submissions that your offending was serious and deserving of a term of imprisonment. That was a realistic concession.
You committed a crime which attracts a maximum penalty of 20 years’ imprisonment. You witnessed the shocking and callous murder of a young woman. Having seen her young life snuffed out before your eyes for no reason, by a person who was your friend, you then made the callous, heartless and reprehensible suggestion to Cross that his terrible crime should be covered up and made to look like suicide by the burning of the scene. You then took other steps to assist him over the ensuing days, associating yourself with him and fleeing interstate with him in spite of your clear knowledge of what he had done. Your conduct displayed a disturbing lack of normal human decency, and is to be condemned.
In the case of Landmark,[12] an application for leave to appeal in respect of a sentence of two years and three months’ imprisonment with a non-parole period of one year and eight months for assisting an offender following an offence of intentionally causing serious injury, Weinberg JA said:
The applicant was involved in an attempt to cover up a most serious offence, one that resulted in a person’s death. His conduct was designed to enable the perpetrator of that offence to avoid detection, and escape any punishment. The particular assistance he provided in that regard, contrary to the suggestion put forward on his behalf, was far from immaterial.
Conduct of this kind undermines and frustrates the proper administration of justice. As importantly, it has the potential to endanger members of the public by allowing violent offenders to remain on the streets. It must be discouraged and denounced in the strongest terms.[13]
[12]Ibid.
[13]Ibid [62]-[63].
To my mind, the most important reasons for which sentence must be passed in your case are just punishment, denunciation, and general deterrence. Specific deterrence also retains significance in your case, especially because of your history of repeated offending over a number of years. As for rehabilitation, that, too, is important in your case. I have endeavoured to arrive at a sentence which will foster your prospects of rehabilitation. In particular, I will fix a non-parole period which has the potential to allow for a significant period of time on parole in the community.
You must be punished in a way which reflects the seriousness of your crime. The sentence of the Court must make it perfectly clear that the Court deplores conduct such as yours designed to assist serious offenders to avoid responsibility for their violent crimes. In respect of general deterrence, the sentence I pass must be such as to bring it clearly home to others who might be minded to provide assistance and support to those who have committed serious indictable offences that such conduct will be met with strong punishment.
Sentence
Tracy Anne Menzies, for assisting an offender following the crime of murder, you are sentenced to be imprisoned for a period of 2 years and 6 months.
I fix a period of 1 year and 2 months before which you will not be eligible to be released on parole.
I declare a period of 386 days up to and including yesterday, 8 April 2020, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate that in sentencing you, I had regard to the fact that in addition to the period of 386 days of pre-sentence detention which I have just declared, there was a further period of 21 days which you served during your overall period in custody as a result of your breach of a CCO which you were on at the time of your offending. I took that period of time into account in a broad sense as your counsel urged me to do.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 3 years and 6 months with a non-parole period of 2 years.
I make the disposal order sought by the prosecution and consented to by the defence.
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