R v Prestage
[2023] VSC 400
•10 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0359
| Between: | |
| THE KING | |
| -and- | |
| BRENDON PRESTAGE | Accused |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 19 June & 10 July 2023 |
DATE OF SENTENCE: | 10 July 2023 |
CASE MAY BE CITED AS: | R v Prestage |
MEDIUM NEUTRAL CITATION: | [2023] VSC 400 |
---
CRIMINAL LAW — Sentence — Assisting offender (manslaughter) — Decomposed body of deceased discovered in mineshaft eight months after disappearance — Accused, SJ, AB and CD originally charged with murder — Murder withdrawn against AB and CD —Subsequently, accused pleaded guilty to assisting offender on basis that SJ committed murder — No evidence against accused that SJ committed murder, save his guilty plea — Before accused sentenced, SJ pleaded guilty to manslaughter — Accused applied to withdraw guilty plea — By consent, plea of guilty set aside, indictment amended, and accused pleaded guilty to assisting offender (manslaughter) — Believing SJ committed manslaughter, accused assisted in removing body from scene and dumping it in mineshaft — Remorse — Criminal history for driving, dishonesty and violence offences — Solid work history — Support of partner — Very strong prospects of rehabilitation — Hardship of prison conditions during pandemic — Sentence of two years and three months’ imprisonment with non‑parole period of 12 months — Sentence already served by pre‑sentence detention — But for plea of guilty, sentence of three years and three months’ imprisonment with non‑parole period of two years — Crimes Act 1958 (Vic), s 325; Sentencing Act 1991 (Vic), ss 5, 6AAA, 11(1)(b) & 18.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McWilliams with Ms S Gray | Abbey Hogan, Solicitor for Public Prosecutions |
| For Mr Prestage | Mr T Marsh with Ms S Gillahan | Stary Norton Halphen |
HIS HONOUR:
Overview
On 28 April 2020, Kobie Lee Parfitt, aged 42, disappeared from her home in Ballarat in suspicious circumstances. As a result of false rumours as to her whereabouts, she was not reported missing until August that year. Another four months later, police found Ms Parfitt’s body wrapped in plastic and bedding at the bottom of a mineshaft nearly 30 kilometres away, in Snake Valley. As a result of decomposition, the cause of her death could not be determined. Nevertheless, the prosecution case is that Ms Parfitt was unlawfully killed on the day of her disappearance, and that her body was then dumped in the mineshaft.
Between December 2020 and February 2021, four people were successively arrested and charged with the murder of Ms Parfitt, and held in custody. In October 2022, the Director of Public Prosecutions discontinued the murder charge against two of those accused — namely, AB and CD. They were released from prison, made statements to police, and became prosecution witnesses. The murder trial of the remaining accused — Shannon Jeffrey and Brendon Prestage — was listed to commence tomorrow, 11 July.
However, following the evidence of AB and CD at a pre-trial hearing in April, the Director accepted Mr Prestage’s offer to plead guilty to the statutory offence of assisting an offender in relation to murder,[1] or what used to be known at common law as being an accessory after the fact to murder. By his plea, Mr Prestage accepted that Ms Jeffrey had murdered Ms Parfitt; that, believing this to be so, he was involved in moving her body from her home and concealing it in the mineshaft; and that he did this for the purpose of impeding the apprehension, prosecution, conviction or punishment of Ms Jeffrey.
[1]Contrary to s 325(1) of the Crimes Act 1958 (Vic), s 325(1).
On 19 June, I heard a summary of the prosecution case against Mr Prestage, victim impact statements from Ms Parfitt’s family, and a plea in mitigation. I adjourned the matter until today, 10 July, for sentence.
On 5 July, however, there was a significant turn of events. The Director filed a new indictment charging Ms Jeffrey with manslaughter, to which she pleaded guilty. Her plea in mitigation is to be heard on 17 August 2023.
On the face of it, this raised a stark inconsistency. How could Mr Prestage be sentenced for assisting an offender in relation to a murder by Ms Jeffrey when, in her own case, Ms Jeffrey was to be sentenced for manslaughter, not murder?
Curious though it may seem, this Janus-headed approach is one that the law will allow in some circumstances.[2] In short, it is within the Director’s prosecutorial discretion to indict in ways that might appear inconsistent, and for an accused to accept that state of affairs by pleading guilty to the charge laid. In essence, prosecutorial discretion and an accused’s informed plea of guilty can combine to tolerate what might be thought to be a legal fiction.
[2]See, e.g., Likiardopoulos v The Queen (2012) 247 CLR 265 at 271[9] & 274[24]-281[39] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ; French CJ agreeing at 268-269[1]) & 282[44]-285[51] (per Heydon J). See also an even more stark example of this principle in operation in my judgments in the related cases of R v McNamara [2020] VSC 705 at [5]-[16] and R v Dunn [2020] VSC 708 at [7]-[12].
That said, in this case, I was troubled that there might be a miscarriage of justice, and that the administration of justice might be brought into disrepute, were Mr Prestage held to his guilty plea. On the evidence admissible against him, there was no proof that Ms Jeffrey committed murder, which is one of the essential elements of the offence of assisting an offender in relation to murder.[3] Only Mr Prestage’s plea of guilty could fill that evidentiary gap. But, when he entered that plea, the Director was persisting in the case that Ms Jeffrey had committed murder. Yet now the Director accepts that Ms Jeffrey is guilty only of manslaughter. As it happens, there is arguably some evidence admissible against Mr Prestage that Ms Jeffrey committed manslaughter.
[3]See s 325(1) of the Crimes Act 1958 (Vic); and R v Welsh [1999] 2 VR 62 at, e.g., 63[1] (per Winneke P) & 65[10] (per Brooking JA).
In those circumstances, at a mention conducted immediately after Ms Jeffrey entered her plea of guilty on 5 July, I suggested to the parties that the following course might amount to a resolution that was practicable and fair to all. Upon Mr Prestage’s application, his plea of guilty would be set aside. Then the indictment would be amended to a charge of assisting an offender in relation to manslaughter, and Mr Prestage would plead guilty to that new charge. Following a further plea in mitigation, he would be sentenced accordingly.
This morning, Mr McWilliams, who appeared for the Director, and Mr Marsh, who appeared with Ms Gillahan for Mr Prestage, confirmed that they were agreed that that course should be adopted. Accordingly, those steps were taken.
Thus, it now falls to me to sentence Mr Prestage for the offence of assisting an offender in relation to manslaughter.
Summary of offending
Background
I turn first to a summary of the background to the offending.
Those involved in the relevant events were all connected in one way or another. Shannon Jeffrey knew Kobie Parfitt through mutual associates. AB was a mutual friend of Ms Parfitt and Ms Jeffrey. CD was a mutual friend of Ms Jeffrey and AB. And Brendon Prestage was a friend of AB and Ms Jeffrey.
Ms Parfitt and her partner Paul “Woody” Williams met in secondary school. They started a relationship in 2016. From November 2018, they rented a home in Hickman Street, Ballarat (“Hickman Street”). In January 2020, Mr Williams moved out.
During November 2019, Ms Jeffrey moved some of her belongings to Ms Parfitt’s home in Hickman Street, and put some items into a storage container on the property.
On 27 November 2019, Ms Jeffrey was arrested at the property on an outstanding warrant, and was taken into custody. Ultimately, she was sentenced to imprisonment.
While in prison, Ms Jeffrey made several recorded phone calls to others, including her mother Donna Whitefield, her sister Tahlia Jeffrey, her friends Aimee Spicer, Ben Kendall and Sara Baines, and Ms Parfitt. Some of those calls show that Ms Jeffrey suspected that, in her absence, Ms Parfitt had disposed of, or sold, some of her property, including a child’s motorbike. They also showed that Ms Jeffrey suspected that Ms Parfitt had provided information to police that led to her arrest and imprisonment.
Events of 17 to 27 April
On 17 April 2020, Ms Jeffrey was released from prison.
During April, Ms Parfitt expressed concerns for her welfare to Mr Williams. In this connection, she mentioned Ms Jeffrey and her associate Matthew Heinz.
On 25 April, Ms Parfitt prepared to leave Hickman Street because she was scared about what would happen to her if she stayed. Mr Williams came over to see her, but she had no clear plan about what she was going to do. Eventually, Mr Williams left.
On 26 April, Ms Parfitt texted Mr Williams claiming that cars were driving up and down the street, that “they” knew she was alone, and that she was “fucked”.
Early the next day (27 April), Ms Jeffrey and CD arrived at Hickman Street with William “Billy” Blackhall in a Holden Rodeo. Ms Parfitt was at home with AB. Mr Blackhall waited in the car. CD and Ms Jeffrey went inside and filled bags with items of property owned by Ms Parfitt.
After 20 or 30 minutes, Mr Blackhall went to the rear door of the house. He heard a loud crashing noise. Upon entry, he saw Ms Parfitt sitting with a blanket around her. The coffee table was out of place, as if kicked over. Ms Parfitt appeared petrified. She said she knew this day was coming. Mr Blackhall told her nothing was going to happen, and then asked Ms Jeffrey, “Nothing is going to happen, is it?” Ms Jeffrey did not reply. Mr Blackhall stayed with Ms Parfitt for about ten minutes. Later, Ms Jeffrey accused Ms Parfitt of “talking shit” about her. Mr Blackhall went to the front room, and saw AB looking at her phone. He then helped CD and Ms Jeffrey make several trips outside to the Rodeo with property they had collected. Mr Blackhall believes they were at the house for about three hours.
Prior to leaving, Ms Jeffrey struck Ms Parfitt to the face, which gave her a blood nose.
Mr Blackhall, CD and Ms Jeffrey then left in the Rodeo for Sebastopol, and parked in a paddock at the rear of King Drive. Mr Prestage arrived in a blue Ford Territory. The other three told him what had just happened. They spoke to Kevin Angwin (who lived nearby) about selling some of the property they had taken, but he was not interested.
Meanwhile, after she was punched by Ms Jeffrey, Ms Parfitt went to a bedroom, where AB noticed her injury. AB stayed with her for a period. Later, she took Ms Parfitt to her (AB’s) home in another suburb.
During the day, Ms Parfitt and AB tried to contact Mr Williams via calls and texts, but he did not respond. In the evening, Ms Parfitt again sent a series of texts to Mr Williams, asking him to come to AB’s house. In the texts, she said that she was going to end up dead and that she needed his help. Again, there was no response.
Lead-up events on 28 April
The next morning, on 28 April, Ms Parfitt texted Mr Williams again, telling him not to bother, and saying, “Thanks a lot, I know where I stand.” He responded, “OK then.” That was the last contact he had with Ms Parfitt.
AB drove to Hickman Street, leaving her daughter at her home with Ms Parfitt. When AB arrived, Ms Jeffrey was there. The two discussed Ms Parfitt, after which AB returned home.
Later, AB drove Ms Parfitt back to Hickman Street. Rhiannon Smith, who lived across the street, saw AB arrive and go into the house. Ms Parfitt remained alone in the car with the window down. She saw Ms Smith, and tried to mouth something to her. She was shaking, terrified, and asked her to call police. When Ms Smith asked why, Ms Parfitt said there were people in her house taking her stuff, and that they were really bad people. All she wanted, she said, was her phone. She refused to say who they were, and said she could not do anything as they were going to put her in the boot.
CD came out of Ms Parfitt’s house and stood by AB’s car. He told Ms Parfitt that she was coming inside. She declined, and said she wanted AB. As CD turned to go back inside, Ms Smith invited Ms Parfitt over to her home for a coffee. She agreed, and told CD that she was going to help Ms Smith’s daughters with their maths. When she left, CD remained outside, leaning on the car with his arms crossed, staring at Ms Smith’s house.
Once they were inside, Ms Smith asked Ms Parfitt, “What the fuck have you done?” She responded that it had something to do with the property of Ms Jeffrey and Tenelle Carr being sold. She said that they believed she was responsible for Ms Jeffrey being locked up. Ms Smith asked her if she should call the police.
At that moment, CD knocked on the front door. He came inside, and they all went into the loungeroom. Ms Parfitt appeared uneasy that CD was near her, but they had a polite conversation, as if nothing was going on. Then they all went outside for a cigarette, but Ms Parfitt still appeared uneasy.
Ms Jeffrey walked across the road, and spoke with Ms Smith. Ms Parfitt lowered her head and was not looking at anyone. She seemed very scared. Ms Smith made conversation by asking whether Ms Parfitt wanted to sell an old wooden television on her veranda. CD said Ms Smith could have it. He went across the road, and then returned with Mr Prestage carrying the television. Ms Parfitt again spoke to Ms Smith about helping her girls with their maths, and she went back inside the house.
Ms Smith remained outside with CD and Ms Jeffrey. She asked them what the hell was going on. CD told her they were at Ms Parfitt’s house collecting her property because she had sold off Ms Jeffrey and Ms Carr’s property while Ms Jeffrey was in prison. Ms Jeffrey gave similar reasons, and said that she wanted to talk to Ms Parfitt and find out why she called the police on her. Ms Smith observed that Ms Jeffrey was angry with Ms Parfitt, and on edge.
Ms Smith asked CD and Ms Jeffrey if they were going to hurt Ms Parfitt. They both said no. Ms Smith told them that it was not worth whatever Ms Parfitt had done, and that they should just forget it and move on. Both said that they just wanted to talk to her. Ms Smith said that Ms Parfitt was petrified of them. They both laughed. Ms Smith told them that she did not want any “shit” going on at her place. CD told her nothing will happen. He said that Ms Parfitt had “screwed over” a lot of people.
Ms Smith told them that she would talk to Ms Parfitt, but that she would not come out while they were there, so they should just go. CD and Ms Jeffrey left, and went over to Ms Parfitt’s house.
Ms Smith went back inside her home. Ms Parfitt told her not to call police. Ms Smith told her she had two choices. She could go over and talk to them and sort it out, or she could walk to the end of the street and keep going, call someone, and get away. She gave her $10. Ms Parfitt thanked her, but she was scared and not sure what to do.
Ultimately, Ms Parfitt left Ms Smith’s house and got back into the passenger seat of AB’s car. CD and AB came outside and walked over to the car. AB got into the driver’s seat. Ms Parfitt asked her, “What do I do?” She told her that she needed to sort her stuff out. CD opened the gates to Ms Parfitt’s house, and AB drove the car through the gateway and parked in the rear yard. Mr Prestage’s Ford Territory was also parked there. This was the last time that Ms Smith saw Ms Parfitt.
When in the rear yard, AB got out of the car. Ms Jeffrey was arguing with Ms Parfitt. AB walked through the house and down the side, where she met CD.
AB and CD then walked away along Hickman Street. They entered a vacant house and sat and smoked before returning to Ms Parfitt’s house, but did not enter. AB then drove to the home of her friend “Bianca”, which was in another suburb, and dropped CD off near the Scout Hall.
The killing of Ms Parfitt
Later, CD returned to Hickman Street. He knocked on the back door for five minutes or more. Eventually, Mr Prestage and Ms Jeffrey came to the door. After CD asked what was happening, Mr Prestage said that Ms Parfitt “is gone”, and waved his hand near his throat — not in a slitting gesture, but similar. CD said, “What the fuck have you guys done?” Both Mr Prestage and Ms Jeffrey said she was dead. They said that, after she had died, they had strung her up in the house to make it look like a suicide. CD told them, “You guys are fucked,” and said he did not want to be involved at all.
Later, after calling AB, Ms Jeffrey went to see her at Bianca’s home. She was driven there by Mr Prestage in his Territory. AB went out and opened the driver’s side rear door, whereupon Ms Jeffrey turned to face her and said, “Alright, so Kobie hung herself.”
AB drove back to her house, with CD. Mr Prestage and Ms Jeffrey followed in the Territory. CD was told Ms Jeffrey had assaulted or hit Ms Parfitt and she had died, and that they decided to hang her in the home so that it looked like she had committed suicide. CD grabbed Ms Jeffrey and said, “What have you done? I don’t want a part of it. Go and get my prints off her neck … You’d better go fix it. … Fuck this shit.” When Ms Jeffrey said she was going to drive back to Hickman Street, CD said, “You can go down, I’m not going anywhere near there.”
All four then got into CD’s white utility, with Ms Jeffrey’s bike in the back. They stopped a couple of streets back from Ms Parfitt’s house. Ms Jeffrey left by herself on her bike. When she returned, she said she could not remove any prints because Ms Parfitt’s hair was knotted up in and around the rope, and she could not get her down. CD was furious. He then drove them all back to AB’s house.
Disposal of body
Later that evening, while at AB’s house, Ms Jeffrey said she knew of a mineshaft. About 20 minutes later, she and Mr Prestage left in the Territory.
They went to Ms Parfitt’s house. While there, they wrapped Ms Parfitt’s body in bedding, black plastic bags, clear sheets of plastic, and green foam, which was held together with tape. Then they loaded her body into Mr Prestage’s Territory and drove to Snake Valley, a distance of about 30 kilometres.
While at Snake Valley, Ms Jeffrey and Mr Prestage found a mineshaft in bushland. They threw Ms Parfitt’s body down the shaft. They covered her with additional items of bedding, towels, and clothing. They also shovelled dirt into the mineshaft to cover the body.
They then left the scene and returned to AB’s house. Nothing was said upon their return.
Mr Prestage, Ms Jeffrey and CD stayed at AB’s house for a few days. During that period, AB left the house a few times, each time in the company of CD.
Ms Jeffrey’s admission
Subsequently, Ms Jeffrey took over the tenancy at Ms Parfitt’s premises at Hickman Street, and began residing there. AB went to the house after Ms Jeffrey had moved in. They were in the loungeroom when, according to AB, Ms Jeffrey said, “It happened right here.” Ms Jeffrey then said that she bashed Ms Parfitt, who was on her knees begging to be taken to her father’s house or the police, and that she grabbed a dog lead and choked her with it.
I should add that it is not alleged that Mr Prestage was present when this admission was made. Nor was he present at the time the acts to which Ms Jeffrey admitted were performed. Like some other parts of the evidence in the summary, it is not admissible against Mr Prestage, but, as I understand it, is included as part of the narrative.
A missing person
Early in August 2020, Ms Parfitt was reported missing to the Ballarat Crime Investigation Unit. The matter was referred to the Missing Persons Squad, and Ms Parfitt was listed as a missing person on 10 August 2020.
On 22 November 2020, police conducted a media conference at Ballarat Police Station, requesting information in relation to Ms Parfitt’s disappearance. The conference was broadcast on evening television news bulletins, including in the Ballarat area.
Mr McWilliams pointed out that Ms Jeffrey and others, but not Mr Prestage, participated in the proliferation of an account that Ms Parfitt had left the Ballarat area of her own accord, and that they had been told that she had moved to Queensland. This laid a false trail as to her whereabouts over the period between April and August 2020, which is why it took so long for her to be reported as a missing person.
Telephone intercepts
A number of calls on Mr Prestage’s mobile phone were intercepted from 21 October 2020. On 27 November 2020, in a conversation with his brother, Mr Prestage mentioned calling detectives next week and that he was “looking at 25 years”. On 2 December 2020, in a conversation with his partner, Mr Prestage was upset and crying. His partner mentioned that she heard it was CD, Ms Jeffrey and a few others, to which Mr Prestage said, “And I wasn’t mentioned?” He went on to say that he will be getting locked up for 25 to 30 years.
Discovery of body
Police retrieved data from Mr Prestage’s phone showing that the handset was moving in the Snake Valley area on the night of 28 April 2020 and into the early hours of the next morning.
On 14 December 2020, police commenced a search of the same area for the body of Ms Parfitt. On 22 December, police found her body nearly five metres into a mineshaft, just off an unnamed track near Kelly’s Road in Snake Valley. She was lying face down, and was bound with a plastic bag around her feet, a plastic bag around her head, patterned material around her torso, and foam material around her thighs. Near the surface of the mineshaft, police found a doona, a mattress protector, a plastic bag, a towel, two pieces of cloth, and a work shirt.
Ms Parfitt’s remains were removed. Later, she was formally identified via DNA comparison.
Autopsy
On 23 December 2020, forensic pathologist Dr Yeliena Baber conducted an autopsy on Ms Parfitt’s body. She determined that the cause of death was unascertained. In her view, there was no conclusive evidence of injury sustained in life, whether inflicted or accidental. There were nasal bone fractures, but forensic odontologist Dr Lyndall Smythe opined that they occurred post-mortem. There were also thoracic vertebral fractures. Forensic radiologist Dr Chris O’Donnell’s opinion was that these fractures were recent (as there was no evidence of callus formation), but he could not say if they occurred post-mortem or ante-mortem.
Dr Baber concluded that, although the circumstances in which Ms Parfitt was found were deeply concerning, the autopsy and ancillary investigations were unable to confirm or refute any potential causes of death.
Arrest and interview
On 23 December 2020, police went to Mr Prestage’s address in Wendouree with a search warrant. After numerous requests went unheeded, they forced open the front door. Mr Prestage then ran from the rear of the property. But, after a pursuit, police were unable to find him. They discovered that, following a call from police on an earlier occasion, Mr Prestage had smashed his phone and put it in a rubbish bin.
On 29 December 2020, police went to an address in Kinglake looking for Mr Prestage. As he saw police arrive, he ran again. When he was ultimately caught down the street, he asked, “Why do you keep chasing me?” He was placed under arrest for murder.
When formally interviewed, Mr Prestage, on legal advice, exercised his right to silence. He consented to the taking of his fingerprints and a swab for DNA.
Ford Territory is gone
The whereabouts of Mr Prestage’s Ford Territory are unknown. It was last seen on 1 December 2020 on CCTV footage from a service station. However, it seems that Mr Prestage disposed of the vehicle once he became aware that he was a suspect in the murder of Ms Parfitt.
Victim impact statements
Next, I shall address the three victim impacts statements before the Court.
Kathryn Snowball said that, while people think she has survived her daughter’s death, the fact is that she has to relearn how to survive each day, because each day she is still gone. She said that, from the depths of the worst pain imaginable, her family will find the strength to go on. Her daughter’s children, and the grandchildren she never knew, will show that love and faith can heal.
Wendy Beckers is Ms Snowball’s sister and Ms Parfitt’s aunt. She spoke of the pain the family feels in not being able to see or touch her niece in death, given her decomposed state. She is haunted by the sound that came from her sister as she stood over her daughter’s coffin at her funeral. It still wakes her most nights.
Phillipa Lamb is Ms Parfitt’s sister. She finds it painful to think that her sister’s body was dumped in a mineshaft with complete disregard for her and her loved ones. She finds it harrowing to visit the site, which she has done many times.
These and the other sentiments expressed by Ms Parfitt’s loved ones are profoundly moving.
In so far as it is permissible to do so, I have had regard to the victim impact statements in considering sentence.
There is, however, a difficulty in doing so, although it is not insurmountable. While Mr Prestage, by his plea of guilty, accepts that Ms Parfitt was killed in circumstances amounting to manslaughter, and that he believed this occurred, he is not to be punished for her manslaughter or for its effect on others. Rather, his offence concerns his actions in removing and disposing of Ms Parfitt’s body, and the purposes for which those actions were performed. It follows that, while there are some mental gymnastics involved, I must confine my assessment of the impact upon Ms Parfitt’s loved ones to that which flows from his offence of assisting an offender, not from her manslaughter. That is what I have sought to do.
Nature and gravity of offence
I turn now to the nature and gravity of the offence of assisting an offender generally and this offence in particular, including Mr Prestage’s level of culpability.
The maximum penalty for assisting an offender in relation to manslaughter is five years’ imprisonment.[4]
[4]Crimes Act 1958 (Vic), s 325(4)(b).
As Mr Marsh accepted, Mr Prestage’s particular offence had some serious features, including the following.
First, it had the effect of leaving Ms Parfitt’s family in complete suspense as to what had happened to their loved one.
Secondly, his offence compromised the police investigation into the homicide, in that forensic evidence became degraded or impossible to interpret, and delayed the identification of potential suspects.
Thirdly, to assist the principal offender in this way is more serious than, say, merely disposing of a weapon or other incriminating evidence.
Finally, to dispose of the body of another human being in the manner employed in this case is a gravely morally culpable thing to do. As the victim impact statements show, it is a thought that haunts and galls Ms Parfitt’s loved ones, and understandably so.
As against the inherent seriousness of the conduct, I accept Mr Marsh’s submissions that there were matters limiting the gravity of this particular offence.
First, Mr Prestage was not aware of any plan to assault Ms Parfitt, let alone to kill her.
Secondly, the evidence (from AB and CD) is that Mr Prestage was not aggressive to anyone on that day.
Thirdly, I accept that, while Mr Prestage was directly involved in the acts of removing and disposing of Ms Parfitt’s body, he did so at the direction of Ms Jeffrey. Significantly, she identified the site of the mineshaft and directed Mr Prestage to it.
Fourthly, unlike others, Mr Prestage was not complicit in promulgating false rumours that Ms Parfitt had gone to Queensland. Instead, his involvement was confined to his behaviour during the limited period required to move and dispose of the body.
Fifthly, I accept that Mr Prestage’s involvement in the offence was unsophisticated and, in sense, naïve. For example, he used his own vehicle to move the body. Moreover, he took his own mobile phone to Snake Valley, which was the key to discovering the body and became valuable evidence of his involvement in the offending.
Sixthly, I accept that Mr Prestage was influenced by misguided loyalty. He assisted Ms Jeffrey in the aftermath of a homicide that was entirely beyond his reasonable contemplation when, earlier, he had assisted her to reclaim property in satisfaction of a perceived debt.
Finally, while Mr Marsh accepted that, in assessing the seriousness of Mr Prestage’s offence, and his moral culpability, it is proper to take into account the gravity of the manslaughter itself,[5] he submitted that it is difficult to do so in this case. The forensic evidence does not disclose how Ms Parfitt was killed. Nor were there any witnesses to the manslaughter. In Mr Marsh’s submission, it is not possible, on the evidence against Mr Prestage, to conclude that this was a particularly heinous example of manslaughter. As I understood the submission, it is open to conclude that the manslaughter was unplanned, and was not accompanied by significant aggravating conduct, save for the removal and disposal of Ms Parfitt’s body in the way alleged, which is the gist of his offence.
[5]See, e.g., R v Kitchin [2001] VSCA 66 at [36] (per Brooking JA, with whom Winneke P and Charles JA agreed). That case concerned assisting an offender in relation to murder, but the principle surely applies in the same way to the offence of assisting an offender in relation to manslaughter.
I should add that Mr McWilliams explained that the Director’s position is that, while Mr Prestage was aware of an initial attempt to make it appear that Ms Parfitt killed herself by hanging, and notwithstanding the tenor of some of the evidence concerning that issue that I summarised earlier, it is not alleged that he participated in that attempt. Those actions are not part of the behaviour forming the charge against him.
While I accept that only a limited assessment may be made of the gravity of the manslaughter for the purposes of characterising the seriousness of Mr Prestage’s offence, it is, I think, still a serious thing to be involved in covering up a another’s offence of manslaughter committed by any means (and even if unplanned) by removing the body from the scene of the crime and disposing of it unceremoniously down a mineshaft.
Balancing these and other matters, I regard this as a relatively serious instance of the offence of assisting an offender in relation to manslaughter. It is an offence which has caused irreparable harm to Ms Parfitt’s loved ones and has compromised the police investigation into the homicide. It involves a high level of moral culpability.
Personal history
Family
I turn now to Mr Prestage’s personal circumstances, commencing with his family background.
Mr Prestage, now aged 33, is of Aboriginal heritage through both parents. His mother Deirdre Burgoyne hails from Port Lincoln in South Australia, but has lived in Ballarat for some time. Mr Prestage knows little about the cultural background of his father, John Prestage, but he knows he was originally from Tasmania.
He has six siblings: three older, two younger, and one a twin. He is close to his younger brother.
Mr Prestage experienced a difficult childhood. His father was often in trouble with the law, and, in consequence, the family moved around a lot. Family violence was also prevalent, with his father being physically abusive to his wife and the children. He was particularly harsh on Mr Prestage, who, as he got older, would intervene to protect his mother. Sadly, it seems that his father was physically abused at the hands of Mr Prestage’s grandfather. Mr Prestage is determined to break the cycle of family violence, and has never been abusive to his partner.
Education and employment
Mr Prestage was educated up to Year 10 in Ballarat.
After leaving school, he worked for a period of time as a cleaner in Tasmania, where his father had family. He then moved to Port Lincoln, where his mother’s family lived, and worked on tuna boats.
After serving a prison term in Victoria, Mr Prestage moved between Tasmania, South Australia and Victoria, before finally re-settling in Ballarat in around 2015.
He worked at Australian Lamb in Sunshine, where he was packing frozen meat. He was there for about 12 months before leaving. He obtained his forklift license and was then re-hired by the company for another six months. Since then, he has worked in various unskilled labouring jobs. He has a Certificate I and II in Conservation and Land Management. In 2019, he commenced employment at Mode Logistics in Tullamarine.
Criminal history
Mr Prestage has prior convictions for offences involving stealing, breaching road rules, and violence.
Between the ages of 18 and 22, he was variously fined and placed on community services orders and a suspended sentence in South Australia and New South Wales for driving offences.
In Victoria, he was dealt with in the Magistrates’ Court for the following matters. In 2009, at 19, he was placed on an adjourned undertaking, without conviction, for driving offences, theft, and damaging property. In 2011, he was fined for theft and driving offences. In 2013, at 24, he was sentenced to a total effective term of 15 months’ imprisonment, with a non-parole period of nine months, for offences including recklessly causing serious injury. Mr Prestage assaulted a person who stood over his friend, who was partly paralysed. In 2015, he was fined for intentionally causing injury.
Relationships
Mr Prestage and his partner, Ashlee Rodgers, have been in a relationship since January 2019. They lived together prior to his arrest.
Ms Rodgers provided a letter to the Court and gave viva voce evidence on the plea. Mr Prestage has her full and ongoing support. She is Koori, and is strongly connected to her culture. She has been instrumental in bringing Mr Prestage closer to his Aboriginal culture.
Ms Rodgers has been employed as a Koori Support and Liaison Officer in the Drug Court at Ballarat Magistrates’ Court for the last 18 months. Previously, she worked at Victoria Legal Aid as an Aboriginal Community Engagement Officer.
Mr Prestage has no children of his own, but Ms Rodgers has two children from a previous relationship. They intend to have children and build a family together. Ms Rodgers said her children adore Mr Prestage, especially her son.
Unfortunately, the couple lost a pregnancy to a miscarriage in 2019. Following that sadness, Ms Rodgers travelled interstate to be with family. In her absence, Mr Prestage relapsed into methamphetamine use, and began associating with peers with similar addiction problems, including the co-accused in this matter.
Upon his release, Mr Prestage will live with Ms Rodgers and her children. She has made it clear to him that, if he were to re-offend, he would be out the door, no matter how heartbroken she might be. She is adamant that she will not risk any harm to her children or her employment. She believes he understands this. She ended their relationship in the past when she became aware that he was using drugs.
As a couple, they have developed strategies for Mr Prestage to avoid relapse into drug use upon his release from prison. Mr Prestage has told her he will buy a cupboard‑full of urine tests to be applied whenever she feels he should be tested. If he were to feel tempted to take drugs, he would remove himself from that situation immediately and turn to Ms Rodgers. She does not see him being tempted, however, as she believes he will stay away from his old associates. He has spent a year in drug counselling in prison, which she believes has improved his insight. Further, he will return to counselling with the Ballarat and District Aboriginal Co-operative (“BADAC”).
When asked about Mr Prestage’s plans for work upon his release, Ms Rodgers said that she will not allow him to stay at home and do nothing. She has worked full‑time since she was 15, and she expects him to pull his weight. She believes he understands this, and that he wants to work. She is confident he will find work, whether it be where he has worked previously or in a new job. Finding employment has never been a problem for him.
Ms Rodgers was asked in cross-examination, why, given Mr Prestage had turned to drugs in the past when they were in a relationship, it would be any different if released in 2023. Her answer was that he had never been through anything like the process he has endured for the last few years, and he knows that she would not put up with anything like that again.
Ms Rodgers also explained that she did not allow Mr Prestage to meet her children when he was struggling with drugs. They did not meet him until he was taken into custody.
Mitigating factors
Plea of guilty
I turn next to consider the mitigating factors, commencing with Mr Prestage’s plea of guilty. This is a very significant mitigating factor, for at least three reasons.
First, his plea acknowledges among other things what occurred to Ms Parfitt after she was killed. In that sense, it brings a measure of finality for her family.
Secondly, this plea carries with it an even greater utilitarian benefit than at other times, because of its tendency to free up resources to deal with the backlog of cases that has resulted from the pandemic.
Thirdly, Mr Prestage pleaded guilty despite having an arguable defence to this charge. At a trial, on the evidence admissible against Mr Prestage, the Director might have had some difficulty in proving that Ms Jeffrey had committed manslaughter.[6]
[6]That said, the rule in R v Dawson [1961] VR 773 (which provides that the conviction of the principal is admissible against an accessory after the fact to prove the commission of the principal offence) may have been called in aid to assist the prosecution in proof that Ms Jeffrey was guilty of manslaughter. In 1998, the Court of Appeal held that the rule in Dawson should continue to be applied by trial judges until it is overruled by that Court or the High Court (see R v Welsh [1999] 2 VR 62 at 64[6] (per Winneke P) & 84[81] (per Brooking JA)). There may be a nice question whether, in addition to the points raised in Welsh, the advent of the Evidence Act 2008 (Vic) would impact on the applicability of the rule today.
Remorse
On a new but related topic, I am satisfied that Mr Prestage’s plea of guilty, and the circumstances in which it was entered, indicate that he is remorseful for his crime and the harm it has caused to Ms Parfitt’s loved ones. I also detected an element of shame in Mr Prestage when he heard the victim impact statements read in this Court.
Hardship in custody
The third factor in mitigation is that Mr Prestage’s time in custody has been harder than usual, for three reasons.
First, unfortunately, Mr Prestage’s father died in November 2022. While he was able to speak to his father by a telephone call to the hospital in his dying days, he was not given compassionate leave from prison to attend his funeral. The resulting loss of opportunity to grieve with the rest of his family is something he felt, and still feels, very keenly. He also feels guilt for bringing about that state of affairs by his own offending conduct.
Secondly, for almost the whole of his time in custody, Mr Prestage has had a murder charge hanging over his head. That charge was contested from the outset. While submissions were made at the committal hearing for discharge, those submissions did not find favour with the magistrate. An application for a permanent stay was raised in this Court, and written submissions were filed, although the point was not determined in the end. In Mr Marsh’s submission, it was not until the cross‑examination of AB and CD at the pre-trial hearing in April that an opportunity to plead guilty to assisting an offender arose. Mr McWilliams submitted that that offer could have been made at any earlier point. That is as may be, but it might be said that the acceptance of that offer by the Director still shows that Mr Prestage has been held in custody for nearly two-and-a-half years on a murder charge that turned out to be inapt.
In any event, I accept that to have spent the bulk of his time in custody facing a murder charge must be more onerous than otherwise. It is reasonable to assume that Mr Prestage would have been burdened by the thought that, if convicted of murder, he would spend a large part of the rest of his life in prison. Indeed, as I mentioned earlier, there is evidence that, even before he was arrested, he thought that he might be locked up for 25 to 30 years.
Thirdly, I accept that, for much of his time in prison, Mr Prestage has been subject to various pandemic restrictions, including periods of quarantine and isolation, with no access to face-to-face visits, and being locked down in his cell for up to four days at a time. Although these conditions have ameliorated somewhat in more recent times, it remains the case that his time in custody has been more burdensome than usual.
Prospects of rehabilitation
Finally, I turn to rehabilitation as a mitigating factor. For a combination of reasons, I am satisfied that Mr Prestage’s prospects of rehabilitation are very strong.
First, his plea of guilty and remorse suggest good prospects.
Secondly, his criminal history is not so grave, entrenched or recent as to deny such a conclusion. His last prior conviction was in 2015, for an offence that attracted a fine. The prison sentence imposed in 2013 was for an offence of violence that, while presumably serious in some respects, appears to have involved Mr Prestage over‑reacting to disgraceful behaviour by the complainant towards a disabled person. His other offending concerns mostly driving offences.
Thirdly, Mr Prestage has the considerable advantage of the support of Ms Rodgers. She was a very impressive witness, whose evidence I accept. She struck me as realistic and sensible, and good of heart. I think she will be critical in assisting Mr Prestage to reintegrate into the community and in addressing his previous drug problem. I am confident that she will provide him with support and stability, and will encourage him to connect with his Aboriginal heritage. At the same time, she will not tolerate any deviation from the path to rehabilitation. Her evidence also persuades me that Mr Prestage is genuinely committed to reform.
Fourthly, in this regard, it is encouraging that Mr Prestage engaged in drug counselling while in custody, and returned clean urine screens. I received a report from his drug counsellor in prison, Zoe Ferguson. Significantly, Mr Prestage referred himself to the course. He attended 28 sessions. Ms Ferguson said that Mr Prestage recognised the impact of his substance use on his interpersonal relationships, mental health, and psychosocial functioning, as well as how it contributed to his previous offending behaviour. He indicated to her that he wanted to abstain from substance use to improve his health and relationships, and to manage his emotions. Ms Ferguson considered that, during the sessions, Mr Prestage continued to develop his insight and awareness of his substance use and related factors. He showed commitment to change, and that he had internal motivation and an understanding of his behaviours. She recommended that he access drug counselling in the community. As Ms Rodgers explained, Mr Prestage plans to take up counselling with BADAC upon release.
Fifthly, also while in custody, Mr Prestage completed courses directed at employment, which, I accept, shows his positive attitude to reform and self-reliance.
Finally, Mr Prestage has a solid work history. If he is able to find work, which seems likely given his track record, this too will enhance his chances of reform.
Sentencing purposes
I turn now to the purposes of sentencing.[7]
[7]Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are 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. The disposal of the body of a person believed to have been the victim of manslaughter, with the intention of impeding the bringing to justice of the person who committed the manslaughter, is denounced. Absent an undertaking to assist the authorities, such an offence ordinarily will be punished by way of a substantial prison sentence.
As for specific deterrence and protection of the community, those purposes also carry some weight in the sentencing synthesis in this case. However, I think that that weight should be somewhat less on account of Mr Prestage’s plea of guilty, remorse and prospects of rehabilitation, and the deterrent effect his time in custody thus far is likely to have had on him.
Rehabilitation is an important purpose in fixing sentence. That Mr Prestage has very strong prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight.
Section 5(3) of the Sentencing Act 1991 (Vic) provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the fundamental common law principle of parsimony. I have applied this principle in arriving at the sentence selected.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for assisting an offender. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.
I was unable to find any sentencing statistics for assisting an offender in relation to manslaughter, and very few individual sentencing decisions. At the original plea, Mr Marsh helpfully provided a table of cases to assist me in gauging current sentencing practices for assisting an offender in relation to murder.[8] However, because the maximum penalties for the two offences are so disparate, the murder-related cases can give only very little guidance in the present case.[9]
[8]The table contained the following sentences for assisting an offender in relation to murder (each period of imprisonment is indicated in parentheses, whether in years (“y”), months (“m”) or days (“d”), together with the non-parole period, if any, indicated after a slash (“/”), except where a community correction order (“CCO”) was imposed instead or as well): R v Bacak [2015] VSC 474 (CCO); R v Considine & Hogan [2019] VSC 386 (22m); DPP v DJ [2017] VSC 64 (362d + CCO); R v Kitchin [2001] VSCA 66 (7y/5y); DPP v Kotiau [2020] VSC 245 (CCO); DPP v Lyons & Lyons [2018] VSC 488 (4½y); DPP v Luke Marmo [2018] VSC 31 (4y/2y); R v Saunders [2007] VSC 298 (304d); DPP v Vega [2015] VSC 683 (2y4m/582d); R v Lee & Kong [2020] VSC 383 (2½ y/18m; 2y/12m); and R v Girgis [2018] VSC 43 (6m).
[9]Further, in several of those cases, there was the powerful mitigating factor that the offender had given an undertaking to assist the authorities in the prosecution of the alleged murderer.
Thus, in the end, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of assisting an offender.
Submissions
Mr Marsh submitted that it is open to impose a prison sentence that is shorter than, or at least does not exceed, the two-and-a-half years or so Mr Prestage has already spent in custody. He also submitted that, if the prison sentence imposed were two years’ imprisonment or more, then I must fix a non-parole period, even though that may be regarded as an academic exercise in the circumstances.
Mr McWilliams accepted that it would be open to impose a prison sentence that did not exceed the period Mr Prestage has already spent in custody. However, he submitted that it would also be open to combine any prison sentence with a CCO for another twelve months or so. In this way, in his submission, the purposes of rehabilitation and community protection might be furthered. This, as I understood him, may be considered to be a more appropriate sentence than merely “time served”, as to release him without any strictures might be counter-productive to the purposes of rehabilitation and community protection in the longer run.
Mr Marsh responded to the effect that, whatever sentence may have been appropriate had this case been finalised 12 or 18 months ago, that opportunity has now passed. In his submission, to impose a CCO in addition to the prison time he has served, even if the CCO were directed towards rehabilitation and community protection, would still necessarily have an additional punitive component. And, if, after allowing for all relevant sentencing purposes, parsimony demanded a prison sentence of the period he has already done, and no more, then it would be to subvert parsimony to impose a CCO in addition to such a sentence.
As will be seen, I accept Mr Marsh’s submission.
Sentence
I turn now to impose sentence.
Mr Prestage, would you stand, please?
A range of matters must be weighed and synthesised in undertaking the sentencing task.
As I have explained, while he was not involved in or present for the killing, Mr Prestage assisted Ms Jeffrey afterwards. This included wrapping Ms Parfitt’s body, driving it to Snake Valley in his vehicle, disposing of it down the mineshaft, and covering it. Justifiably, Ms Parfitt’s family are horrified at the indignity of their loved one’s treatment in death. While some aspects of the manslaughter cannot be determined, enough is known about Mr Prestage’s conduct, and its adverse effect on Ms Parfitt’s family and the police investigation, to say that this is still a relatively serious example of the offence of assisting an offender in relation to manslaughter.
On the other hand, Mr Prestage has entered a valuable plea of guilty, and is remorseful for his crime. His prior convictions are mostly for driving offences. He has been imprisoned previously for violence, albeit the circumstances of that offending were unusual. His work history is solid. Mr Prestage’s good fortune is that he has the considerable support of his partner, who strikes me as one who will brook no deviation from the path to reform, to which he appears to be committed. As I have said, in all, I consider Mr Prestage to have very strong prospects of rehabilitation. Further, he spent nearly all of the last two-and-a-half or so years in custody with a murder charge hanging over his head, and all the stress that goes with it, as well as under the harsh prison conditions caused by the pandemic.
Importantly, I must also have regard to the fact that this version of the offence carries a maximum penalty of five years’ imprisonment, which is considerably less than the 20‑year maximum applicable to the offence when committed in relation to murder.
After balancing all matters as best I can, for his offence of assisting an offender in relation to manslaughter, Mr Prestage is convicted and sentenced to two years and three months’ imprisonment with a non-parole period of 12 months.
Pursuant to s 18 of the Sentencing Act, I declare that, including today, 924 days of pre‑sentence detention be reckoned as served under this sentence.
Thus, Mr Prestage has served the entirety of the sentence just imposed, and more, and is to be released from the Court today.
In those circumstances, it might be thought that the non-parole period I have fixed is academic. In one sense, it is. However, proper sentencing process requires that the record reflect what I consider to be the necessary and appropriate sentence, which includes a non-parole period. Further, pursuant to s 11(1)(b) of the Sentencing Act, I am compelled to fix a non-parole period because the length of the head sentence is two years and three months’ imprisonment and because I do not consider that the nature of the offence or Mr Prestage’s past history make the fixing of a non‑parole period inappropriate.
Finally, I am required by s 6AAA of the Sentencing Act to declare the sentence I would have imposed had Mr Prestage been found guilty at trial following a plea of not guilty. This is always a difficult task as the plea of guilty tends to affect other relevant considerations. Nevertheless, doing the best I can, I declare that, but for Mr Prestage’s plea of guilty, I would have imposed a sentence in the order of three years and three months’ imprisonment with a non-parole period of two years.
---
3
15
6