R v Moreland
[2015] VSC 324
•13 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0033/0034/0035
Between:
| THE QUEEN | |
| and | |
| MARK JAMES MORELAND, CHRISTOPHER NATHAN TIPPINS & TAI THORP | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 5, 10-14, 17-21 & 24-28 November and 1-5 & 8-12 December 2014 (Trial) and 15 June 2015 (Plea) |
DATE OF SENTENCE: | 13 July 2015 |
CASE MAY BE CITED AS: | R v Moreland; Tippins & Thorp |
MEDIUM NEUTRAL CITATION: | [2015] VSC 324 |
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CRIMINAL LAW – Sentence for manslaughter following trial – Deceased ambushed on bridge by three accused, assaulted and then abducted – Body not found – After verdict, first and second accused disclosed location of body – Body partially burnt and buried – Unlikely otherwise to have been found – Very serious example of manslaughter – Remorse – Limited priors for violence – Reasonable prospects of rehabilitation – Third accused did not participate in assault on deceased or assist in disposing of body – Lesser role than co-accused – Youth – Very good prospects of rehabilitation – Sentence of 12 years’ imprisonment with non-parole period of nine years on first and second accused – Sentence of 10 years’ imprisonment with non-parole period of seven years on third accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams QC with Mr G. Hayward | Office of Public Prosecutions |
| For Mr Moreland | Mr T. Kassimatis | Theo Magazis & Associates |
| For Mr Tippins | Mr S. Johns | Christopher Traill Lawyers |
| For Mr Thorp | Mr J. Hannebery | Paul Vale Criminal Lawyers |
HIS HONOUR:
Overview
On 12 December 2014, following a month-long trial before a jury, Mark James Moreland, Christopher Nathan Tippins and Tai Thorp were found not guilty of the murder of Gordon Hamm on 17 July 2013, but guilty of his manslaughter.
The prosecution case on murder was that the three men were involved in intercepting and taking Mr Hamm from a car driven by his friend Samantha Porter, at about 4:00 a.m., on a bridge over the Glenelg River at Nelson, a small town on the Victorian side of the border with South Australia. Their motive was said to be to steal money Mr Hamm had recently won and/or drugs he had bought earlier that night. It was alleged that, as a result of assaults inflicted on him while on the bridge and in the park just below it, Mr Hamm died either there or as he was taken away in a vehicle, and that his body was dumped elsewhere. The precise cause of death was not known, as Mr Hamm’s body had not been discovered at the time of trial.
Mr Tippins and Mr Moreland’s principal defence was that, while they were involved in kidnapping and assaulting Mr Hamm, they did not kill him. Rather, they handed him over alive to those who requested they kidnap him so that he might repay those persons monies he owed. An alternative defence was that, if they were found to have caused Mr Hamm’s death, they did not have the intention required for murder. Mr Thorp’s principal defence was that he was neither present nor involved in any of the goings-on at Nelson.
In an extraordinary turn of events, following the verdicts, Mr Moreland and Mr Tippins not only confessed to police that Mr Hamm had in fact died in their presence, but they also disclosed where they had buried his body. On 29 January 2015, police found Mr Hamm’s burnt body buried in bush near Dergholm, about 130 kilometres north of Nelson, just where the accused had told them it would be.
The pleas in mitigation were delayed ultimately until 15 June 2015 to allow sufficient time for forensic examination of the body to be conducted.
It now falls to this Court to sentence each accused for manslaughter.
Summary of facts
Introduction
I now turn to a more detailed summary of the facts.
Having considered the way in which the prosecution and defence cases were put at trial, the evidence before the jury, the potential dangers in some of that evidence and the competing submissions of the parties on the plea, unless otherwise indicated, I am satisfied beyond reasonable doubt of the following matters and that these conclusions are consistent with the jury’s verdicts:
The three accused, Mr Hamm and Ms Porter knew each other
At the time of these events, Ms Porter, Mr Hamm and all three accused lived in Mount Gambier and were known to each other in one way or another. Ms Porter was in a relationship with Mr Tippins’s brother, Mark Tippins, at the time and had known Mr Hamm for six to twelve months.
Mr Hamm wins some money and heads to Portland
On Monday 15 July 2013, Ms Porter and Mark Tippins had met up with Mr Hamm in Mount Gambier to play poker machines. Mr Hamm had the good fortune to win over $5,000. Following his win, he asked to be driven to Portland. Ms Porter offered to give him a lift in her car, and together with Mark Tippins, the three travelled to Portland, arriving there around midday. Mr Hamm remained in Portland and Ms Porter and Mark Tippins travelled back to Mount Gambier. It is likely that Mr Hamm went to Portland to buy some drugs.
Mr Hamm and Ms Porter drive back towards Mount Gambier
In the early hours of 17 July 2013, Mr Hamm contacted Ms Porter and asked her to come to Portland and drive him back to Mount Gambier. Mr Tippins came to know of Mr Hamm’s whereabouts via Mark Tippins, who told him that Ms Porter had left for Portland to collect Mr Hamm. During the drive back to Mount Gambier, Ms Porter was in regular contact with Mark Tippins via telephone. He asked her for her estimated arrival time in Mount Gambier and, in turn, relayed this information back to Mr Tippins.
Ambush at Nelson
At around 4:00 a.m., Mr Hamm and Ms Porter arrived in Nelson. As they crossed the bridge, they were ambushed. Mr Moreland, in his Ford Maverick, drove his car towards Ms Porter’s car and blocked her forward path. At the same time, Mr Thorp, driving his Mitsubishi Pajero, with Mr Tippins in the passenger seat, drove up behind Ms Porter’s car and prevented her from reversing off the bridge. Ms Porter tried to reverse her car but backed into the Pajero.
Assaults on Mr Hamm
Once Ms Porter’s car was boxed in, Mr Moreland got out of his car armed with a rifle. With the help of Mr Tippins, he dragged Mr Hamm from the car out onto the road. Mr Moreland began to strike Mr Hamm with the butt of the rifle. He struck him repeatedly, whilst shouting at Mr Hamm to “get in the car, get in the car”. Mr Hamm began screaming. He was so scared that he soiled himself. As the assault was occurring, Mr Tippins approached Ms Porter in her car and told her to leave, which she did.
Mr Hamm bolts, is caught and is assaulted some more
Mr Hamm then attempted to flee. He ran back towards Portland and down an embankment to a picnic area on the eastern side of the bridge. At some point, a shot was fired. Mr Moreland remained on the bridge, shouting something like, “Where are you going? Get back here.” He then drove his Maverick to the edge of the roadway and shone his headlights down into the picnic area. Mr Thorp drove his Pajero down into the picnic area. Mr Tippins went down to the picnic area too, either on foot or with Mr Thorp in the Pajero. Mr Tippins had the rifle. While down there, he assaulted Mr Hamm until his screaming stopped, at which point a male voice was heard to say, “Help me get him into the car.” Mr Hamm was then bundled into the Pajero and driven out of the picnic area, where the car met up with the Maverick and followed it over the bridge towards South Australia. At some point, the Pajero struck a bollard in the picnic area.
The Pajero is dumped and burnt
Both vehicles were then driven to a pine plantation about twelve kilometres north of Nelson, where the Pajero belonging to Mr Thorp was dumped and burnt. On 25 October 2013, police found the burnt out Pajero in that plantation.
No trace of Mr Hamm was found in or near the vehicle.
Ms Porter returns to Mount Gambier
Back to the events of the early hours of 17 July 2013 at Nelson. After being told to leave the bridge, Ms Porter continued driving west towards Mount Gambier. She was so distraught she had to stop driving. She called Mark Tippins and Ricky Noonan. Mr Noonan arranged for another associate, Damien Gartside, to meet her. He met her, drove her home in her car and dropped her off, and then drove her car to Ricky Noonan’s place.
Mr Tippins goes to Ricky Noonan’s house
About an hour after Ms Porter was dropped home, Mr Tippins arrived at Mr Noonan’s house. He had come to collect Ms Porter’s car. He told Mr Noonan to “open the door, or I’ll shoot the door down”. Once he was let in, Mr Tippins asked to speak to Mr Noonan privately. He then told him that he needed to take Ms Porter’s car because there may have been something in it he needed. He also told Mr Noonan that Mr Hamm owed the Finks Motorcycle gang $45,000 and that he and Mr Moreland were paid $5,000 to hand Mr Hamm over to them. Mr Noonan asked if Mr Hamm was alive or dead, to which Mr Tippins replied, “I don’t know, we handed him over. But I dare say you won’t be seeing him again.” Mr Tippins took the keys to Ms Porter’s car and left.
Mr Tippins speaks to Mr Noonan again
The following day, Mr Noonan and Mr Tippins met in the carport of his brother Shane’s house. Mr Tippins told him that at one stage Mr Hamm got away and tried to jump off the bridge, but did not make it, and that he had to go down and drag him back up.
Mr Tippins and Mr Moreland visit Ms Porter
Also on the following day, Mr Tippins and Mr Moreland visited Ms Porter at her house. Mr Tippins told her not to tell anyone about the events on the bridge. He apologised for involving her and told her he would replace her car.
Forensic evidence at the bridge
As a result of Triple 0 calls from people in Nelson who heard the goings-on, police attended the bridge area soon after Mr Hamm was taken away. In or around the picnic area, police found broken pieces of a rifle stock and its trigger guard; Mr Hamm’s Ugg boots; drug deal bags; a bollard that had been damaged; droplets of Mr Hamm’s blood; and tyre tracks on the grass. On the bridge, police found broken glass from a car light and droplets of Mr Hamm’s blood.
Police later matched the broken rifle stock to a .22 rifle missing its stock and trigger guard found at the home of Shane Tippins, who, as I said, is another brother of Mr Tippins.
Mr Hamm’s DNA was found on parts of the rifle stock. Mr Thorp’s DNA was found on the trigger guard.
Mr Moreland’s car
Police ultimately located Mr Moreland’s Maverick and subjected it to forensic testing. Inside the car, they found particles consistent with gunshot residue and DNA consistent with that of Mr Hamm.
On the evidence led at trial, I am satisfied that, at some point after the three accused left the bridge, Mr Hamm was transferred from the Pajero to the Maverick.
Mr Tippins speaks to AE
On 23 July 2013, almost a week after the incident on the bridge, Mr Tippins met Adam Wiggins at the home of AE in Mount Gambier. Mr Wiggins raised the topic of Mr Hamm’s disappearance, which was being discussed around Mount Gambier. According to AE, Mr Tippins was frantic, pacing about and quite pale. He is alleged to have said that Mr Hamm was “a stubborn cunt” and that he “even had to shoot him in the leg”. They discussed the rumours that Mr Hamm was floating down the river. According to AE, Mr Tippins and Mr Wiggins laughed at this as though it was not true.
At this point, I should make it clear that I am not satisfied beyond reasonable doubt that Mr Tippins told AE that he shot Mr Hamm in the leg, or that Mr Hamm was shot at all. AE did not strike me as a very reliable witness. Further, there was no blood staining at the bridge or the picnic area that one would expect had Mr Hamm been shot in the leg or elsewhere while there. In my view, it is extremely unlikely that the jury would have found Mr Tippins and Mr Moreland not guilty of murder had they been satisfied either one of them shot Mr Hamm. I am satisfied that a shot was fired at the bridge, but that was done by Mr Moreland simply to persuade Mr Hamm to come back to the car and go with them.
Arrests
On 25 July 2013, Mr Moreland and Mr Tippins were arrested. Mr Moreland exercised his right to remain silent. Mr Tippins’s interview was not in evidence at the trial.
On 5 September 2013, Mr Thorp was arrested. He told, and had already told, a series of lies to police. For example, on 17 July 2013, he falsely reported his Pajero as stolen. Later, he falsely claimed he had lent it to another. He falsely denied possession of his mobile phone around the time of Mr Hamm’s disappearance. Telephone records tended to show that his telephone was in or near the Nelson area, and was often communicating with Mr Moreland’s telephone, around the time of Mr Hamm’s abduction. Mr Thorp also falsely denied to police that he had last been in Nelson three or four months earlier.
Post-verdict discovery of Mr Hamm’s body
Mr Moreland and Mr Tippins indicate preparedness to assist in locating body
On 16 January 2015, those acting for Mr Moreland and Mr Tippins contacted the Office of Public Prosecutions and indicted that their clients were prepared to liaise with the Homicide Squad as to the location of Mr Hamm’s body. On 23 January 2015, Mr Moreland and Mr Tippins were separately interviewed by police.
Mr Moreland’s record of interview
In his interview, Mr Moreland said that he went to the bridge in order to collect Mr Hamm and hand him over to “some people” he owed money. Mr Hamm resisted and he “belted him a couple of times”. He said that “eventually he complied and hopped in the vehicle”.
In relation to the burning of the vehicle, Mr Moreland said that they abandoned and burnt the Pajero because it was not driveable.
In relation to Mr Hamm’s state when he got into the vehicle, Mr Moreland said, “On the way into town, he was carrying on … all of a sudden … he just stopped breathing”. He said Mr Hamm’s death was “a mystery … an accident … a complete accident”. He said he had “fired a shot in the air” when at the bridge because he could not chase him. He described Mr Hamm’s injuries as “a bit of a split on his noggin … which was bleeding a little bit”.
The following day, he and Mr Tippins drove out to Dergholm, dug a hole and placed some wood in the bottom of the hole. They then placed Mr Hamm, who was wrapped in a carpet, into the hole along with their own clothes and burned it all using diesel. They then “buried him over”.
Mr Moreland said that he wanted to apologize to Mr Hamm’s family, to give them some closure, to give them their son back so they can take him home.
Mr Tippins’s record of interview
Mr Tippins said there were no injuries on Mr Hamm at all. He denied that Mr Hamm had been bashed. He said Mr Hamm screamed out of fear, not as a result of being bashed. Mr Moreland fired a shot in the air when Mr Hamm ran off.
Mr Tippins took the gun from Mr Moreland on top of the bridge. It broke down in the playground when he hit his own legs with it. Mr Tippins said he otherwise had no weapons. Mr Hamm got into Mr Thorp’s car himself.
They burnt Mr Thorp’s car because the steering was damaged after they hit the bollard.
After they drove away in Mr Moreland’s car, Mr Hamm was scared, crying, hyperventilating; and then, all of a sudden, “he just went poof, had a heart attack and was gone”. They could not take him to the people he owed money after he had had a heart attack. They went back to Mount Gambier.
The next morning, he and Mr Moreland wrapped him in carpet, drove, put him in the hole with their clothes in it and lit it. They did not use any accelerant.
He said that there would be “nothing wrong with his body”; that he “doesn’t actually have any injuries”; and that he would be “just a bit burnt”. He thought he had a heart attack when in Mr Moreland’s car.
Mr Tippins was unable to pin-point precisely where Mr Hamm’s body was. Rather, he identified Mr Moreland as having a better knowledge of the Dergholm area.
Locating the remains of Mr Hamm
On 29 January 2015, Mr Moreland was taken out of custody and directed police to the location of Mr Hamm’s remains.
Medical evidence
Mr Hamm’s body was recovered by a team of experts and examined by forensic pathologist Greg Young and a forensic anthropologist Dr Soren Blau.
Mr Young observed a depressed skull fracture to the rear and fractures to the forehead area. He was unable to conclude an unequivocal cause of death due to the decomposition of the body and fire damage. He does opine, however, that the fracture to the skull would have resulted from blunt force trauma and such trauma is capable of causing death as a result of direct or indirect injury to the brain. He also observed a defect in the right thigh.
Dr Blau observed a patterned defect on the rear of the skull typical of blunt force trauma with a specific shaped implement with at least two linear edges. She considered that the fractures to the forehead do not appear to be related to the blunt force trauma to the rear of the skull.
Victim impact statements
I turn now to the victim impact statements made by Mr Hamm’s mother Ida Te Waiata Hamm, his father Daniel Hamm and his sister Teira Riria Hamm. Mr Hamm’s family came from New Zealand to attend the plea hearing.
Mrs Hamm’s statement was read by Ms Williams QC, who appeared with Mr Hayward for the Director. Mrs Hamm said she feels empty and desolate at the loss of her son, and wonders how she will ever get used to that feeling. Her son, her love, her hopes and dreams are all lost.
Mr Hamm’s father read his statement to the Court. Before doing so, he explained that he and his daughter are youth workers in Taumarunui, their home town. Since Gordon’s death, they have sought to educate children in their town about the dangers of drugs, money and greed and the impact of losing someone you love. He went on to speak of the immense hurt, pain and helplessness they feel at his death. They miss him every day and pray for him where he lies in their local cemetery.
Mr Hamm’s sister also read her statement to the Court. The only time she can see her only sibling now is in her dreams. When she allows herself to feel the pain, she becomes physically sick and depressed. She misses his loving phone calls, his laughter and the fun they had together with her children.
The victim impact statements are profoundly moving documents. I have taken their contents into account.
Nature and gravity of offence
I turn now to the nature and gravity of the offence, and each offender’s culpability and degree of responsibility for it.
Manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment.
The offence is serious, by definition. Yet another precious human life has been lost as a result of criminal behaviour. Gordon Hamm was only a relatively young man. His parents and sister are devastated at the loss of their loved one. When a child pre-deceases his parents, it reverses the natural order of things. Such a death must be all the more unbearable when the child or sibling is taken as a result of criminal behaviour.
The form of manslaughter relied on in the present case was manslaughter by an unlawful and dangerous act committed by a joint criminal enterprise. This means that, while none of the accused had an intention to kill or to cause really serious injury (or recklessness thereto) when directly harming or otherwise participating in the joint criminal enterprise that resulted on Mr Hamm’s death, for otherwise it would be murder, the jury’s verdict means that they were satisfied that the conduct engaged in or agreed to by each accused involved an intentional assault and that a reasonable person in his position would have realized that those acts were exposing Mr Hamm to an appreciable risk of serious injury.
For reasons that follow, I regard this as a very serious example of manslaughter. First, in the cases of Mr Moreland and Mr Tippins, there was an element of planning the behaviour that led to Mr Hamm’s death. On their own case, they were there to abduct Mr Hamm to hand him over to others for the purposes of recovering debts. There was evidence to which I have not referred in the foregoing summary that they spoke about Mr Hamm’s indebtedness to others, such as Mr Stringer, and recovering such funds from Mr Hamm, in the lead-up to the killing. Plainly, an element of violence was always going to be necessary or at least contemplated in abducting him.
I should add at this point that I am not satisfied that the motive of Mr Moreland and Mr Tippins for the abduction and assault was to steal money and/or drugs from Mr Hamm. Rather, I cannot exclude the reasonable possibility they were there to hand Mr Hamm over to others to whom he was indebted. That said, I do not think it makes the offence any more or less serious. Either motive involved planning and the contemplation at least that violence might have to be used. I should also add that I do not include Mr Thorp as being fixed with this motive. I cannot exclude the reasonable possibility that he knew very little about this whole sordid affair but, consistently with the jury’s verdict, I am satisfied that he knew and did enough to render him guilty of the offence.
Secondly, that Mr Moreland took a weapon – a gun – to intimidate Mr Hamm and that he and Mr Tippins both used that weapon adds to the seriousness of the offence. Mr Moreland struck Mr Hamm about the head with the butt of the gun and fired it as a warning shot. Mr Tippins, I am satisfied, used the gun to assault Mr Hamm further when down in the picnic area.
Thirdly, and this point applies to all three accused, I am satisfied that Mr Ham did not go willingly into the Pajero. Rather, he was either forced into the car unwillingly or unconsciously.
Fourthly, and this point also applies to all three accused, the offence was committed in the dead of night, by three people onto one and in a public place. I exclude Ms Porter from that equation as she was scared witless by the behaviour she witnessed. While I accept that Mr Hamm was still alive when taken from Nelson, the whole ordeal, both at Nelson and when in the car, must have been a terrifying way in which to spend his last moments alive. Further, the offence, at least in part, was committed in the presence of Ms Porter, which was brazen and callous, and, as I have said, terrifying for her.
Fifthly, in the cases of Mr Moreland and Mr Tippins, their offence is aggravated by the fact they burnt and concealed the body. On the other hand, that they, after verdict, did the decent thing for Mr Hamm’s family, and directed the police to his body, offsets that aggravating factor. It must also be accepted that, but for their disclosure, it is unlikely that the body would have been found or that it would have been known that it had been burnt. I will come back to this issue when dealing with the issues of possible remorse and prospects of rehabilitation.
While worse cases of manslaughter by unlawful and dangerous act by joint criminal enterprise might be imagined, this is still a very serious example of the offence.
And while Mr Thorp’s role in the offence makes his behaviour very serious too, it is, in my view, somewhat less serious than Mr Moreland and Mr Tippins’s behaviour. Ms Williams accepted, correctly in my view, that Mr Thorp could not be said to have been involved in the planning, the actual violence or the concealment or burning of the body. Ms Williams also accepted, again correctly in my view, that Mr Thorp was “more than likely a follower, not a leader, in what occurred”. On the other hand, he cannot derive any offsetting mitigation for assisting the authorities or remorse that might flow from disclosure of the whereabouts of the body, for he had no part in that. Further, he was still a part of the enterprise that involved three men onto one, armed, in the dead of night, in public and particularly in the presence of Ms Porter (although she did not see him). Nevertheless, as serious as his offence is, all else being equal, it is deserving of a lesser sentence than are his co-accused’s offences.
Mitigating factors – Mr Moreland
Balanced against the seriousness of the offending are the mitigating factors on which each accused is entitled to rely. I shall deal first with Mr Moreland.
Disclosure of whereabouts of body and remorse
The principal mitigating factors arise out of the fact that, after verdict, Mr Moreland not only confessed to police that Mr Hamm had died in his and Mr Tippins’s presence, but that he also disclosed where they had buried his body.
Whether classified as the absence of, or the offsetting of, aggravation that concealing and burning a body involves or as a mitigating factor in its own right, there is good reason to encourage those who do the decent thing, albeit in this case much later than they might have done, and disclose the whereabouts of a body, by the imposition of a sentence that is less severe than it would be absent that disclosure. In the same way that assistance to the authorities – in the form of turning Queen’s evidence – is encouraged by a reduction in sentence, whatever its motivation, so too should assistance of the type that Mr Moreland has engaged in be encouraged by a reduction in sentence, whatever its motivation. Such disclosure at least has the potential to benefit the family of the deceased by giving them certainty regarding the deceased’s fate and the opportunity to bury or otherwise deal with his remains.
Mr Kassimatis, who appeared for Mr Moreland, submitted that I should be satisfied that his client’s behaviour demonstrates remorse. He pointed to the things said in Mr Moreland’s interview in further support of that submission. He also submitted that this behaviour amounts to an ostensible abandonment by Mr Moreland of his rights on appeal and therefore represents an acceptance of the jury’s verdict.
Ms Williams submitted that there should be some mitigatory benefit for disclosing the whereabouts of Mr Hamm’s body but that it must be moderated by factors such as whether the disclosure was motivated by self-interest. She also submitted that I should not accept that Mr Moreland is remorseful, for several reasons. First, the assistance has come at a late stage, when imprisonment looms large and the family have been held in suspense for a long period. Secondly, it comes after a trial, so that the Crown was deprived of evidence as to the cause of death at a material time. Thirdly, the trial was conducted on the basis that the deceased was alive when Mr Moreland last saw him, which is now demonstrated to be a lie.
Having considered the evidence and the submissions of the parties, I am satisfied that, while Mr Moreland’s behaviour in disclosing the whereabouts of Mr Hamm’s body was borne partly of self-interest, I also accept that he believes it was the right and decent thing to do, that he has accepted the jury’s verdict and that his behaviour does manifest a degree of contrition. I do not accept the he is profoundly remorseful but I do accept that he is meaningfully remorseful nevertheless.
Prospects of rehabilitation
While he has a criminal history and has now committed a very serious crime, I am satisfied that Mr Moreland nevertheless has reasonable prospects of rehabilitation. There are three main reasons.
First, his acceptance of responsibility and remorse flowing from his disclosure of the whereabouts of the body bode well for his rehabilitation.
Secondly, while Mr Moreland, at age 37, has a significant criminal history, he does not have any prior convictions for violence approaching the level of seriousness of the current offence. The vast majority of his prior convictions are for driving offences. He has some prior convictions or findings of guilt for minor drug offences, one for burglary and a few for minor weapons or firearms offences. While he has six prior convictions for assault, Mr Kassimatis pointed out that Mr Moreland’s only appearances have been in the Magistrates’ Court and his longest sentence has been eight months’ imprisonment.
Thirdly, Mr Moreland, despite having a somewhat deprived early life and limited formal education, has a strong work history. He has worked in many different occupations, including cutting wood, on fishing boats and operating loaders. His descent into drug use, and the current offending, came when he was out of work. Promisingly, he has remained drug-free while in prison. He has also used his time well in prison by doing courses. Both he and Mr Tippins have been involved in impressive work in building trailers. Hopefully, that work might give him the skills and motivation to find related work upon his eventual release.
Mitigating factors – Mr Tippins
I turn now to Mr Tippins.
Disclosure of whereabouts of body and remorse
First, I make the same findings about Mr Tippins’s involvement in disclosing the whereabouts of Mr Hamm’s body, acceptance of responsibility and remorse as I have in respect of Mr Moreland. While some different things are said in their respective interviews, I do not think there is any fair or sensible basis for distinguishing between them on this issue.
Prospects of rehabilitation
Secondly, while Mr Tippins also has a criminal history and has now committed a very serious crime, I am also satisfied that, like Mr Moreland, he has reasonable prospects of rehabilitation. There are three main reasons.
First, as in the case of Mr Moreland, so too in Mr Tippins’s case, his acceptance of responsibility and remorse flowing from his disclosure of the whereabouts of the body bode well for his rehabilitation.
Secondly, while Mr Tippins, at age 30, has a significant criminal history, he, like Mr Moreland, does not have any prior convictions for violence approaching the level of seriousness of the current offence. Most of his prior convictions are for driving offences. And he too has some priors for minor weapons or firearms offences and a more serious drug offence (of selling a controlled drug). He has three prior convictions for assault, one for threatening harm and one for “fighting”. While Mr Johns, who appeared for Mr Tippins, conceded that his client’s criminal history does him no credit, he has had only short prison sentences and his history for violence is modest compared with the offence of which he stands convicted.
Thirdly, Mr Tippins, whose early life was blighted by his mother’s grave mental health problems, living in foster care, drug use and poor formal education, has, like Mr Moreland, shown that he can work too. Despite involvement in illicit drug use from an early age, he held one job for up to four years. His work record has been limited by illicit drug use, but, promisingly, he has returned negative drug screens and has been doing courses while in prison. His work skills are in metal work and welding. As I indicated earlier, he and Mr Moreland have been involved in impressive work in building trailers. As I also said earlier, I hope that such work might give him the skills and motivation to find related work upon his eventual release.
Mitigating factors – Mr Thorp
I turn now to Mr Thorp.
Very limited criminal history
Mr Hannebery, who appeared for Mr Thorp, submitted that his client has no criminal history of any relevance to the present charge. I agree. His prior criminal history consists of minor “street” offences and an apparent tendency to ride pushbikes without a helmet. He has never been gaoled.
Youth
The second mitigating factor personal to Mr Thorp is his youth. He is aged 22 now and was only 20 at the time of the offence. All else being equal, a younger person is less likely to appreciate risk or consider consequences. Further, in this case, Mr Thorp was a young person involved with much older men and might reasonably be expected to feel subordinate to them in their hierarchy. In my view, Mr Thorp, at only 22, is at an age where his values and attitudes are still being formed. One of the great aims of the criminal law is to rehabilitate younger offenders, even if the offence is relatively serious, as this offence is. And, at only 22 and given his lesser role in the offending, Mr Thorp is young enough to persuade me that rehabilitation is an important consideration in his case.
Prospects of rehabilitation
The third mitigating factor concerns Mr Thorp’s prospects of rehabilitation. Mr Hannebery relied on the following matters to support a submission that those prospects were very good: his limited criminal history; his substantial history in the workforce, which has been achieved despite his disadvantaged upbringing; his demonstrated capacity to engage in further education; his engagement in rehabilitation activities whilst in custody; his lesser role in the offending; and his relative youth. I accept that submission.
Sentencing purposes
Introduction
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
In my view, general deterrence, just punishment and denunciation are important considerations in this case of manslaughter. The community should understand that behaviour of the type engaged in by the three accused is denounced by the courts and will result in a substantial term of imprisonment that reflects that a person’s life has been taken by an unlawful and dangerous act committed in the course of an ambush for some nefarious purpose, and that the lives of the deceased’s loved ones have been marred forever.
Specific deterrence
While Mr Moreland and Mr Tippins’s prior convictions are far from the worst, they are sufficiently significant to render specific deterrence a sentencing consideration of some weight. Further, Mr Moreland committed the offence in breach of two outstanding bonds and Mr Tippins committed the offence while on bail. That said, I have given the purpose of specific deterrence less weight than otherwise on account of their acceptance of responsibility, remorse and reasonable prospects of rehabilitation.
Given Mr Thorp’s limited prior criminal history, youth and very good prospects of rehabilitation, I consider that specific deterrence is a sentencing purpose of only very modest significance in his case.
Protection of the community
I consider that protection of the community is also of only modest significance in the cases of Mr Moreland and Mr Tippins, and of less significance in the case of Mr Thorp. The other sentencing purposes, including rehabilitation, will produce sentences that have the effect of protecting the community in any event.
Rehabilitation
Rehabilitation remains an important consideration in each case. This is particularly so because Mr Moreland and Mr Tippins’s prospects of rehabilitation are reasonable and Mr Thorp’s are very good and he is so young.
It is important to recognize the interplay between rehabilitation and protection of the community. All three accused will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as they have be maximized, so that, when they do return to the community, their risk of reoffending is as low as it reasonably can be and their chances of successful reintegration into the community are good.
Parsimony
Sections 5(3) and (4) of the Sentencing Act 1991 (Vic) reflect the common law principle of parsimony. I have applied these provisions and this principle when considering the appropriate sentences in these three cases.
Parity
The parties accepted that there was no meaningful basis for distinguishing the sentences to be imposed on Mr Moreland and Mr Tippins but that Mr Thorp’s lesser role and other factors personal to him, particularly his youth, demand that he receive a lesser sentence. I agree.
Sentences
I turn now to sentence.
Mr Moreland, please stand. Balancing all matters as best I can, for the manslaughter of Gordon Hamm, Mark James Moreland is convicted and sentenced to 12 years’ imprisonment with a non-parole period of nine years. I declare that 718 days of pre-sentence detention are to be reckoned as already served under this sentence.
Mr Tippins, please stand. Balancing all matters as best I can, for the manslaughter of Gordon Hamm, Christopher Nathan Tippins is convicted and sentenced to 12 years’ imprisonment with a non-parole period of nine years. I declare that 718 days of pre-sentence detention are to be reckoned as already served under this sentence.
Mr Thorp, please stand. Balancing all matters as best I can, for the manslaughter of Gordon Hamm, Tai Thorp is convicted and sentenced to 10 years’ imprisonment with a non-parole period of seven years. I declare that 628 days of pre-sentence detention are to be reckoned as already served under this sentence.
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