R v Price & Brown
[2023] VSC 347
•22 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0361; S ECR 2021 0339; S ECR 2022 0060
| Between: | |
| THE KING | |
| -and- | |
| ANDREW JAMES PRICE | First Accused |
| -and- | |
| JAKE WILLIAM BROWN | Second Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2023 |
DATE OF SENTENCE: | 22 June 2023 |
CASE MAY BE CITED AS: | R v Price & Brown |
MEDIUM NEUTRAL CITATION: | [2023] VSC 347 Second revision: 27 June 2023 |
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CRIMINAL LAW — Sentence following sentence indication — Manslaughter by unlawful and dangerous act — In April 2020, on pretext, SG lured deceased to remote location into clutches of AP and JB believing they would “kick the shit out of him” — AP and JB sent SG down road to wait while they took deceased into bush at gunpoint — Deceased neither kicked nor bashed nor shot — Instead, AB and JB forced deceased to ingest GHB in large quantities — JB left scene while deceased still standing and conscious — AB left deceased while unconscious, stranded and alone — Aim of offending was to warn deceased off vis‑à‑vis AP’s girlfriend and make him walk home alone from remote location — Deceased died from GHB toxicity — Deceased’s partly decomposed body discovered in bush five weeks later — AP and JB originally charged with murder — Important prosecution witness died and much of his recorded evidence excluded — With concurrence of Director of Public Prosecutions, AP and JB then sought sentence indication on manslaughter — Following sentence indication, AP and JB each pleaded guilty to manslaughter, despite arguable defence — AP motivated by jealousy over deceased’s ongoing relationship with AP’s girlfriend — AP’s arm previously broken by deceased in dispute about girlfriend — AP aged 50, with three children — AB has no prior convictions — AP’s second wife died of cancer in 2016 — AP retrenched from long-term employment in 2018 — AP descended into illicit drug abuse thereafter — AP diagnosed with chronic lymphocytic leukemia, but good prognosis, albeit complications from deep vein thrombosis — JB recruited by AP to assist — JB aged 31, with two young children — JB has prior convictions, including for violence — AP and JB both remorseful — Both remained drug-free and worked solidly while on bail — Both have strong prospects of rehabilitation — Current sentencing practices — Totality — Concession as to concurrent sentences for possession of unregistered firearms — AP lost two months’ pre‑sentence detention on account of subsequent conviction resulting in two-month prison sentence during period of remand on manslaughter — Parity among co-offenders — JB’s role less serious than AB’s, but difference partly offset by other considerations — AP and JB each returned to custody pending sentence — AP sentenced on manslaughter to seven‑and‑a‑half years’ imprisonment with non-parole period of four-and-a-half years — AP sentenced to seven days’ imprisonment on each unregistered firearm offence, concurrent with each other and with manslaughter sentence — But for AP’s pleas of guilty, total effective sentence of ten‑and‑a‑half years’ imprisonment with non-parole period of seven-and-a-half years — JB sentenced to seven years’ imprisonment with non-parole period of four years on manslaughter — But for JB’s plea of guilty, sentence of ten years’ imprisonment with non‑parole period of seven years — Criminal Procedure Act 2009 (Vic), ss 207-209; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; R v Guillerme [2023] VSC 36.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Rochford KC with Ms A Roodenburg | Abbey Hogan, Solicitor for Public Prosecutions |
| For Mr Price | Mr T Marsh with Ms F Fox | Marshall Jovanovska Ralph |
| For Mr Brown | Mr G Casement with Ms L Andrews | McFarlane Criminal Lawyers |
HIS HONOUR:
Overview
Jarrod Lovison must have been terrified in his last waking moments. After being lured by a young woman to a remote location on the pretext of a drug deal, and perhaps in the hope of something more, he was ambushed by two men armed with rifles, marched into the bush, and forced to ingest large quantities of the drug GHB. He would have had no idea that any of this was coming. He was rendered unconscious and then left for dead in the bush. And die he did.
Andrew Price and Jake Brown committed these awful deeds. They must face not only imprisonment for their admitted crime of manslaughter, which will have an endpoint, but also the enormity of what they have done, which, I expect, will haunt them for the rest of their days.
Inevitably, their actions have had a profound effect on Mr Lovison’s family. From the jury box in this Court, his father John, with his wife Diane by his side, stood and read their joint victim impact statement. As well as expressing their immeasurable loss in a broken yet searing manner, John Lovison spoke of the torment in knowing, as farmers do, what happens to a body left in the open in the bush for five weeks, as his son was. He just can’t get it out of his head. In her victim impact statement, Mr Lovison’s mother Kathryn Lewer spoke of the extreme pain she and his brother Brayden feel, which she thinks will last forever. Sadly, I expect she is right. As she said, parents are not supposed to bury their children, and not in this way.
In saying this, I recognise that, while we have some idea of what it must be like, and we sympathise with all our hearts, those of us who have not had a similar experience can only ever guess at the depth of loss and grief felt by Mr Lovison’s loved ones. Theirs is to live in a room of experience that we hope never to enter.[1]
[1]The great American writer John Steinbeck is said to have said that there are some among us who live in rooms of experience we can never enter. I say “is said to have said” because I’ve not found when, or even whether, Mr Steinbeck actually uttered these words. Some internet sites referring to quotes from his writings also attribute these remarks to him, but unsourced. So, this attribution will have to do. Postscript: After this judgment was published, William F Gillies of counsel (after seeking the research assistance of law graduate Hana Gibson) kindly alerted me to the fact that the quote derives from Mr Steinbeck’s 1962 travelogue Travels with Charley: In Search of America, at p 212.
Mr Price and Mr Brown were charged with murder initially. At a sentence indication hearing in April this year conducted with the concurrence of the Director of Public Prosecutions, I indicated that, if they pleaded guilty to the manslaughter of Mr Lovison, I would sentence Mr Price to seven-and-a-half years’ imprisonment with a non‑parole period of four-and-a-half years, and Mr Brown to seven years’ imprisonment with a non-parole period of four years.
The law is that, if an accused pleads guilty at the first available opportunity after a sentence indication, as each man did here, the judge must not impose a more severe sentence than that which was indicated, but may impose a less severe sentence.[2]
[2]See Criminal Procedure Act 2009 (Vic), ss 207-209.
Two weeks ago, I heard the prosecution opening and the accused’s pleas in mitigation in full, as well as the victim impact statements of Mr Lovison’s family.[3] Having reflected on these matters, I have concluded that Mr Price and Mr Brown should be sentenced in accordance with the indications I gave previously.
[3]This was the second time I heard victim impact statements from Mr Lovison’s family. In December, I first heard such statements when dealing with the plea and sentencing of Samantha Guillerme, who is a co‑offender of Mr Price and Mr Brown. (See further below, and also R v Guillerme [2023] VSC 36.)
My reasons for those sentences follow.
Summary of offending and surrounding circumstances
Agreed summary
The more detailed account I am about to give is taken mostly from the summary of the prosecution case read to the Court by Mr Rochford KC, who appeared with Ms Roodenburg for the Director.
As I understood them, neither Mr Marsh, who appeared with Ms Fox for Mr Price, nor Mr Casement, who appeared with Ms Andrew for Mr Brown, disputed that summary. In what follows, I have supplemented that summary with information put on the pleas in mitigation.
Jarrad Lovison
I shall commence with some of the personal details of Mr Lovison and those involved in his killing.
Jarrad Lovison was born on 21 November 1982. He was aged only 37 at the time of his death, which occurred on 16 April 2020 in the Moondarra State Park, between Moe and Walhalla in Gippsland.
He is survived by his mother Kathryn Lewer, her son (and his half-brother) Brayden, his father John Lovison, and his stepmother Diane Lovison.
Known as “Lovo” to his friends and family, he was striking for his great height: he was seven feet tall. He loved and bred dogs, and had a dog called Slade.
Mr Lovison lived in a bungalow on his father and stepmother’s property at McPhersons Road in Newborough. He had lived there for about seven years.
He did not hold a driver’s licence. He used a green pushbike to get around, or sometimes got lifts from others.
For over ten years, Mr Lovison had been in an on-again/off-again relationship with Angela O’Brien. After that relationship finally ended in February 2019, Ms O’Brien began a relationship with Mr Price. As we shall see, Mr Price believed that Mr Lovison and Ms O’Brien still maintained a sexual relationship, which provided part of the motive for his offending.
Andrew Price
Andrew Price was nearly 47 back in April 2020, and is now 50.
At that time, he lived with his two teenage sons at 21 March Street in Newborough (“March Street”).
Mr Price also owned a property at Haunted Hills Road in Newborough, on which there was a site hut. This place was rented to Patrick Alan. It was sometimes referred to as the Haunted Hills block.
Mr Price’s wife died of cancer in 2016, and he was retrenched from his long‑term employment in 2018.
Jake Brown
Jake Brown was aged 28 at the relevant time, and is now 31.
He lived with his wife and their two young children in Willow Grove. On occasions, he slept in a shed on the property of Danial and Teresa Ruddell at Adam View Court in Tanjil South.
Mr Brown knew Mr Price through mutual friends around the Newborough, Moe and Trafalgar areas. He was also in a relationship with Samantha Guillerme.
Samantha Guillerme
Ms Guillerme, who lived in Trafalgar, was a co-offender of Mr Price and Mr Brown. She too pleaded guilty to manslaughter following a separate sentence indication hearing conducted late last year.
At 23, she was relatively young, and had a significantly lesser role in the offending. Further, she made a statement to police implicating Mr Price and Mr Brown, gave an undertaking to assist the authorities by giving evidence against those men at their trial, and, following sentence, did precisely that at a pre-trial hearing.
On 9 February this year, I sentenced Ms Guillerme to three-and-a-half years’ imprisonment with non-parole period of 15 months for her role in the manslaughter of Mr Lovison.[4]
Background and lead-up to killing
[4]See R v Guillerme [2023] VSC 36.
I turn now to some other matters of background and the events leading up to the killing of Mr Lovison.
Despite the fact that their relationship had ended, Ms O’Brien was contacted frequently by Mr Lovison, which caused her to ignore his contact or block his number. On at least one occasion while in her relationship with Mr Price, Ms O’Brien and Mr Lovison slept together. Mr Lovison also spread rumours around town that he and Ms O’Brien were having sex. In 2020, Mr Price was aware of this and confronted Ms O’Brien about it, but she denied the rumours.
Various people heard Mr Price talk about his dislike for Mr Lovison. There were also incidents of violence between the two men, including an occasion in 2019 when Mr Lovison broke Mr Price’s arm. There were also times when Mr Lovison was said to have slashed the tyres on Mr Price’s car.
Patrick Alan recalled being present during a conversation with Mr Price, Mr Brown and Ms Guillerme. He heard Ms Guillerme comment that she might be able to lure Mr Lovison as she knew “he wanted to fuck her”. Ms Guillerme recalled a conversation at the Haunted Hills block in which she agreed she would be able to get Mr Lovison to meet up with her, but she could not recall whether Mr Price was present for that conversation.
On Tuesday 14 April 2020, two days before his death, Mr Lovison went to the home of Doris Carranza. While there, he spent a lot of time on his phone, giggling. He told Ms Carranza that he was sexting a girl. Ms Carranza expressed her hope that he was not messaging Ms O’Brien. He said it was “Sam”, and that he was getting weed from her.
The same night, he told Ms Carranza that he and two others had set Mr Price’s shed on fire, and that Mr Price had threatened him some months ago.
The next day, Wednesday 15 April, Mr Lovison worked chopping wood with Nathaniel Gobius. After finishing, the two men made plans to go out together and chop more wood the next day.
Later on the Wednesday, Mr Lovison spoke to his father and his stepmother at home. He left to go to the Kmart store in Moe at around 5:00 p.m. This was the last time anyone in his family saw him.
Later that evening, Mr Price, Mr Brown and Ms Guillerme engaged in a series of SMS and phone communications with each other. Mr Brown and Mr Price were also in contact with Ms O’Brien, and were coming and going from March Street.
At about 8:30 p.m., Mr Brown visited Kerryn Williams at her home. While they were chatting, Mr Brown told her not to worry if she called him later and his phone was off, as he and a mate were just taking care of something. When Ms Williams asked what they were doing, Mr Brown replied that he could not tell her as it would get her in trouble, but not to worry as she would hear about it soon enough. He left almost immediately after that.
At 8:41 p.m., Mr Brown, who was in Moe by then, phoned Ms Guillerme in a call that lasted eleven minutes. While on the same call, at 8:43 p.m., Ms Guillerme, who was in Trafalgar, sent a Snapchat message to Mr Lovison saying, “Sup buttercup.” This was the first of a series of messages between them that night, many of which related to Mr Lovison’s getting “juice” (i.e., GHB) or “weed” from Ms Guillerme.
While engaging in this chat, and from about 8:45 p.m. to 9:45 p.m., Mr Lovison was at Kristen Wagner’s house in Belvedere Street, Newborough. He took a photo of himself while in Ms Wagner’s shed and sent it to a number of people via Snapchat. He mentioned to Ms Wagner that he was going home to meet a female, and that he was “hopefully going to get some”. He asked her to drive him to Morwell or Traralgon, but she declined. So, instead, he left on his pushbike.
At 1:57 a.m., Ms Guillerme contacted Mr Lovison, first by trying to call him, then by sending him an SMS saying, “Oiiiiiiiiiii!!!!? Doin.” Ultimately, via a series of SMSs exchanged between 2:30 a.m. and 3:30 a.m., Ms Guillerme and Mr Lovison arranged to meet near the Moe-Walhalla Road.
The killing of Mr Lovison
Soon afterwards, Mr Brown drove Ms Guillerme (who was in the front seat) and Mr Price (who was in the back) from Trafalgar to the Moe-Walhalla Road in the Moondarra State Park for the meeting. Mr Price and Mr Brown did not take their phones on the journey, whereas Ms Guillerme took hers.
Upon arrival, Mr Brown parked on the side of the road. He told Ms Guillerme to move into the driver’s seat, which she did. Mr Brown and Mr Price got out the car, taking the guns they had concealed in the back seat, and went to hide in nearby bushes, where they laid in wait.
Mr Lovison arrived on his pushbike. He hid the bike on the side of the road and then got into the front passenger seat of the car. He and Ms Guillerme talked and had a cigarette.
Mr Brown and Mr Price then emerged from their hidey-hole wearing head torches and armed with the guns. They climbed into the back seat of the car, yelling at Mr Lovison. Mr Brown took Mr Lovison’s phone and threw it out of the car.
He then told Ms Guillerme to drive to Tanjil Bren Road, which she did, stopping where he told her to stop. Once there, Mr Brown and Mr Price stepped out of the car, guns in hand, and made Mr Lovison get out too.
Mr Brown told Ms Guillerme to keep driving down the road and turn left, and then stay in the car at that location. She did as she was told. This location was near Dwyers Track and Ortons Track, and was about a kilometre from where Mr Lovison’s remains would be found five weeks later. Ms Guillerme’s phone records show that she remained there between 3:54 a.m. and 4:37 a.m.
Meanwhile, Mr Price and Mr Brown took Mr Lovison into the bush at gunpoint, where he was administered GHB. The Director accepts that it cannot be proved beyond reasonable doubt that Mr Lovison was forced to ingest GHB at gunpoint. The accused accept that the remoteness of the location and subjective knowledge on Mr Lovison’s part that they were both armed rendered his consumption of GHB non‑consensual.
At some time after 4:30 a.m., Mr Brown left Mr Price and Mr Lovison on foot, and met Ms Guillerme where she had parked the car. Mr Lovison was conscious and standing when Mr Brown left. The Director accepts that it cannot be proved beyond reasonable doubt that Mr Brown was present for the entirety of the administration of GHB.
Subsequently, Mr Price left Mr Lovison too. He was asleep or unconscious at that time.
Mr Lovison ultimately died in that remote place, although it is not known precisely when that occurred.
The Director does not allege that there was any intention to kill Mr Lovison through the administration of GHB. When Mr Price left Mr Lovison unconscious, it was with the intention that he would be in the bush without an ability to get back to town. As Mr Marsh explained, the intention on the evening was, in essence, to teach Mr Lovison a lesson, and to have him stop harassing Mr Price and leave him and Ms O’Brien alone. Mr Casement explained that there was no intention to harm Mr Lovison permanently. At worst, Mr Brown thought that Mr Lovison would be inconvenienced by the administration of the drug and by being left at that remote location.
However, the accused accept that the dangerousness of the administration derives from a combination of circumstances, including:
a) the unknown potency of the GHB Mr Lovison ingested;
b) the quantity of GHB he ingested;
c) the effect of any prior GHB consumption on the night;
d) the remoteness of the location and the unlikelihood that Mr Lovison would be found by any passers-by; and
e) the fact that Mr Lovison’s mobile phone had been taken from him and thrown into the bush.
Events after the killing
At what, according to phone records, must have been around 4:38 a.m., Mr Brown met Ms Guillerme where she was waiting in the car, and drove them to Mr Ruddell’s house in Tanjil South. He told her that she would be better off if she did not ask questions about what had happened. Mr Price did not travel with them.
When Mr Brown entered the main house, he said to Mr Ruddell, “I’ve been here all night. You’re my alibi.” Teresa Ruddell was also present when this was said.
Mr Brown then left the property to pick up Mr Price from Tanjil Bren, before coming back to Mr Ruddell’s property to drive Ms Guillerme back to her home in Trafalgar.
At 6:24 a.m., CCTV showed Mr Brown’s Holden Commodore arriving at March Street, Mr Price getting out of the car and entering the property, and the car then driving away. At 6:32 a.m., Mr Price left March Street in his Hyundai, and travelled to Ms O’Brien’s house in Trafalgar.
At around 8:40 a.m., Mr Gobius went to Mr Lovison’s shed to pick him up to go chopping wood, as they had arranged the evening before. The shed door was padlocked from the outside, and Mr Lovison did not respond to Mr Gobius’s calls or text messages.
On or about 17 April, Ms Guillerme and Mr Brown returned to the Moe‑Walhalla Road to “deal with” Mr Lovison’s pushbike. Mr Brown did not want to put the bike in his car, so Ms Guillerme rode it to Adam View Court, where she threw it into bushes off to the side of the road. She told Mr Brown where she had left it, and he said that he and Mr Price would take care of it.
Mr Lovison was reported missing by his stepmother on 22 April 2020, seven days after she and his father had last seen him.
In the period when Mr Lovison was classed as a missing person, there was news coverage of his disappearance. One night, Mr Brown was at Mr Ruddell’s house when they heard a news item about Mr Lovison’s disappearance. Mr Ruddell commented, “Someone’s done a good job on him,” to which Mr Brown responded that Mr Lovison was alive the last time he saw him. Mr Brown went on to say, “The big prick jumped on me and Pricey surprised me and stepped up to the plate.” He did not elaborate on what he meant.
Mr Ruddell recalled a further conversation with Mr Brown that occurred a few weeks after Mr Lovison had gone missing. Mr Brown appeared stressed and angry, prompting Mr Ruddell to ask him what was wrong. Mr Brown responded along the lines of, “Got rid of a nuisance.” Mr Ruddell asked him what he was talking about, and Mr Brown replied, “Lovo … we got rid of him.” Mr Ruddell asked, “Who?” Mr Brown answered, “Me and Pricey got rid of him.”
Mr Ruddell and Mr Brown spoke on another occasion. A news item came on during which Mr Lovison’s father and his stepmother appealed for help to solve the case. They said that Mr Lovison was a gentle giant who would not hurt anybody. In response, Mr Brown said, “Bullshit,” and something similar to, “He was a nuisance, a dickhead paedophile, and deserved what he got.” Mr Ruddell asked, “You and Pricey?” Mr Brown responded, “Yep. And Sam was driving the car.” Mr Ruddell asked, “Sam, what did you involve her for?” Mr Brown said, “She didn’t hear anything, she had earphones on with loud music, so she couldn’t hear.” Mr Ruddell did not want to know anything further, so he stopped asking questions.
Discovery of Mr Lovison’s body
Once it was determined that Ms Guillerme was the last person to have phone contact with Mr Lovison, police obtained mobile phone data for phones used by her and other suspects. Analysis of location data established the area in which Ms Guillerme’s phone was on 16 April 2020.
Police conducted searches of the Moondarra State Park around the Ortons Track and Dwyers Track intersection over a number of days. On 23 May 2020, Mr Lovison’s body was found about 25 metres south of the Tanjil Bren Road. He was fully clothed, lying on his back on rotting wood and fallen leaves, each leg bent at the knee over a thin branch, his left hand resting on his chest, his right arm draped at right angles to his tall frame beside a log that had been cut into blocks with a chainsaw years before. Clasped in his right hand was a blue bong. His head was tilted back and to the left, as if he were asleep. For all the world, he looked like a fallen soldier. All except that, outwardly, he had no apparent injuries to speak of, certainly nothing that might have killed him.
Post-mortem findings
A post-mortem examination was conducted on Mr Lovison by forensic pathologist Dr Joanna Glengarry. The cause of his death was established as GHB toxicity. Dr Glengarry opined that the level of GHB found in Mr Lovison’s blood was “well in excess” of levels attributable to endogenous production or to decomposition, and was “very high and more than capable of causing death in the absence of other factors”.
After analysis of samples, toxicologist Professor Dimitri Gerostamoulos opined that “the amount of GHB detected in [Mr Lovison] is significant and consistent with the determined cause of death — GHB toxicity”.
Methylamphetamine and cannabis were also detected, as was alcohol, but it could not be determined whether the alcohol as due to ingestion or post-mortem production from bacterial fermentation.
An unburned cigarette filter, wrapped in a cigarette paper, was found in the right main bronchus, but of itself would not be sufficient to cause death.
Telephone intercepts
Information obtained by police from intercepted phone calls and surveillance devices revealed Mr Brown, Mr Price and Ms Guillerme discussing, with each other and others, Mr Lovison, the police investigation, rumours that they had heard about Mr Lovison’s death and their involvement, who they thought was providing information to police and the media, and their concerns over being named as being involved.
As more information circulated in the public sphere, the three accused appeared increasingly concerned about what was being said. For example, on 9 and 10 October 2020, the following things were said:
a) First, Ms Guillerme and Mr Brown spoke in the early hours of the morning of 9 October. They appeared very concerned about how accurate some of the rumours were, and how close much of the information they were hearing was to the truth. Ms Guillerme told Mr Brown that she thought Mr Price was “scared shitless but he’s kept his lips – zipped – I think he’s petrified but he’s shut up”. Mr Brown told her that he would “deal with Pricey”.
b) Second, in a separate conversation that day, Ms Guillerme and Mr Brown discussed an article that appeared in the Latrobe Valley Express newspaper the previous day, and how accurate some of the information contained in it was. Ms Guillerme read the article to Mr Brown and expressed her concern that the police investigation was not focussing enough on Mr Price. She told him, “I’d better not go down for this,” and that police knew what had happened.
c) Third, in a conversation later that same evening, Mr Brown and Ms Guillerme had a further discussion about aspects of what the police knew, particularly concerning the bridge sighting of Mr Lovison and his bike. She realised this information was out of her statement. Mr Brown told her not to give the police any more. She indicated she wanted to speak to Mr Price.
d) Fourth, the next day, Mr Brown sent an SMS to Mr Price saying, “We need to chat NOW!” They met at the Haunted Hills block shortly before 4:00 a.m. on 11 October 2020.
e) Fifth, the same day, Mr Brown and Ms Guillerme also discussed Patrick Alan’s whereabouts. Ms Guillerme suggested that Mr Brown “stealth the joint” as Mr Alan was coming and going from Doris Carranza’s house. They also discussed trying to meet with Mr Price.
Arrests and interviews
On 21 October 2020, Mr Brown’s premises were searched by police. He was arrested and conveyed to Morwell Police Station.
Among other things, when interviewed, he said the following. On the night of 15 April 2020, he went home to his partner and went to bed shortly after 12:30 a.m. He did not speak to anyone or make any phone calls that night. He first heard about Mr Lovison’s disappearance from posts on Facebook, which caught his attention because they mentioned Moondarra, which is where he was from. He had met Mr Lovison once before in his whole life, about ten years ago. He and Mr Price used to be good mates, but they had drifted apart. He had known Ms Guillerme on and off for years through his stepbrother. He did not believe Ms Guillerme and Mr Price had ever been at the Haunted Hills block together. He had been to the block a few times over the last two years. Mr Price had never spoken to him about hating Mr Lovison or any plans to kill him. He personally did not have any hatred for Mr Lovison or any issue with him. He was not at Ms Guillerme’s house on the night of 15 April 2020, and had no recollection of ever leaving his phone at her house. He denied being in possession of Mr Lovison’s bike or leaving it at Danial Ruddell’s address. Mr Brown otherwise denied the allegations or provided “no comment” responses.
While in custody, Mr Brown’s telephone conversations were recorded. During these calls, he said that it would be better if some people stopped talking and making statements, and that, if these people made statements, they would be dragged through the Supreme Court, and they needed to retract them.
Mr Price was also arrested on 21 October 2020, and search warrants were executed at the Haunted Hills block and March Street.
He was interviewed and answered “no comment” to the questions asked of him.
Victim impact statements
I turn to the victim impact statements, parts of which I mentioned earlier.
Jarrad Lovison was his father John’s only remaining child, as his daughter was lost to suicide several years ago.[5] He was the light of his life, and his wife’s. They miss his smile, his infectious laugh, his big bear hugs, and his beautiful soul. They are crushed, broken and empty, and fear never being whole again. They cry all the time, and are tormented by the terror he must have felt when he realised what was happening. They feel cheated that he did not live long enough to have children of his own, or grandchildren for them. Yet they feel guilty when they are happy or are on a holiday.
[5]He also mentioned the loss of another child.
In her victim impact statement, which was read by Ms Roodenburg, Ms Lewer said that the loss of her son is both devastating and overwhelming, but she considers that an understatement. She ruminates on whether he knew he was going to die, whether he suffered. She too despairs that he can never be a father and that she can never be a grandmother to his children. She feels extreme sadness, depression and anxiety over her loss. At times, she doesn’t want to wake up in the morning. Ms Lewer closed by saying that she and Brayden loved Jarrad dearly, and still do.
This was the second occasion I heard from Mr Lovison’s parents, the first being during the plea hearing concerning Ms Guillerme. As I remarked then, their suffering was apparent not just in their words but also in their voices and on their faces.
As far as it is permissible to do so, I have had regard to the victim impact statements in considering sentence.
I wish to add this. I know that there is nothing this Court can say or do to lessen the grief suffered by Mr Lovison’s loved ones. It must be awful. The sentences to be imposed, however, are not a reflection of the worth of his life or what it might have been. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. The sentences simply reflect, as they must, the many and varied factors I am required by law to take into account, only one of which is the impact on loved ones.
Nature and gravity of offence
I turn now to the nature and gravity of manslaughter generally and of the offence committed by each of these men in particular, including their level of culpability.
Manslaughter in this State is (mostly) a common law offence.[6] At the relevant time, the maximum penalty was set by statute at 20 years’ imprisonment.[7]
[6]The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.
[7]See s 5 of the Crimes Act 1958 (Vic) (see version 291). For offences committed on or after 1 July 2020, the maximum penalty is 25 years’ imprisonment (see s 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic)).
While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.
It is important to understand that manslaughter is quite different from the more serious offence of murder, which is now withdrawn. Murder requires proof of an intention to kill or cause really serious injury, or recklessness thereto. In contrast, the form of manslaughter relied on here is manslaughter by an unlawful and dangerous act. In the present case, this means that, by their pleas of guilty, Mr Price and Mr Brown accept that the administration of GHB was an unlawful act, an assault, because it occurred without Mr Lovison’s consent. It is accepted that it was also dangerous because a reasonable person in the position of each accused would have realised that there was an appreciable risk that Mr Lovison would suffer serious injury as a result of the administration of GHB in the circumstances that obtained.
This offence had some serious features about it, including the following.
First, every offence of manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.
Secondly, here, the life of a beloved son and one who was part of a wider family and circle of friends, aged only 37, has been taken as a result of unlawful and dangerous conduct. As the victim impact statements show so graphically, Mr Lovison’s family are devastated at their loss.
Thirdly, after what must have been considerable planning and forethought, Mr Price and Mr Brown arranged Ms Guillerme to lure Mr Lovison into a remote area on a pretext. They laid in wait for him and, soon after his arrival, burst into the car bearing arms, threw his phone away, caused him to be driven down the road, marched him into the bush at gunpoint, and caused him to ingest so much GHB as to render him unconscious[8] and helpless in a remote area, and thereby caused his death. Mr Lovison would have been terrified at what might become of him, and the two men must have been aware of this. There is considerable moral culpability in this behaviour.
[8]Albeit, I repeat, it is accepted that he was standing and conscious when Mr Brown left.
Finally, Mr Price and Mr Brown’s post-offence conduct did them no credit. In the period that followed their leaving Mr Lovison in the bush, despite what must have been a realisation relatively soon afterwards that he had died, they made no effort in the days following to alert the authorities that something was amiss or as to where he or his body might be.
The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which counsel for the accused submitted include the following.
First, in order fairly to assess the offending, Mr Marsh submitted that the context of the offending must be understood. There had been a period of acrimony between Mr Price and Mr Lovison. This arose largely from Mr Lovison’s continued involvement with Ms O’Brien while she was Mr Price’s partner. However, in so far as the previous acrimony was violent, it came only from Mr Lovison, not from Mr Price. The intention on the evening was to cause Mr Lovison to be drawn to a remote location and sorely inconvenienced, in essence, so as to teach him a lesson, to have him stop harassing Mr Price, and to leave him and Ms O’Brien alone. Further, all persons involved, including Mr Lovison, had a history of drug use, and, significantly, GHB use. Indeed, Mr Lovison was seeking GHB on that fateful evening.
Second, in relation to the cause of death, Mr Marsh submitted that the toxicology and pathology evidence was important. That evidence was to the effect that:
a) it was not possible to predict with certainty what would constitute a fatal dose of GHB;
b) Dr Glengarry could not say whether the ingestion of GHB here was from homicide, suicide or misadventure;
c) it was impossible to determine what quantity of GHB had been consumed by Mr Lovison prior to his death, or over what period of time any GHB had been consumed;
d) it was not possible from the post-mortem examination to identify how the GHB was ingested, or what dose was ingested;
e) it was not possible say that all of the GHB detected in the body of Mr Lovison was ingested by him when he was alive, as some of it may have formed as part of the decomposition process; and
f) the concentrations of GHB detected were described by the toxicologist as “potentially fatal”, and he was not able to say at what dose GHB toxicity would be certainly lethal.
Mr Marsh submitted that it follows that it cannot be proved beyond reasonable doubt that Mr Price:
a) knew what a “lethal dose” of GHB was or that a lethal dose of GHB had been ingested by Mr Lovison;
b) saw Mr Lovison die (which was accepted by Mr Rochford, as it was conceded that, when Mr Price left, Mr Lovison was alive); or
c) intended or was reckless as to Mr Lovison consuming a lethal dose.
Mr Marsh submitted that, in those circumstances, the offending should be seen at the lower end of the spectrum or gravity. The intention was to leave Mr Lovison with a “long walk back to town”, and his unfortunate death was simply not foreseen.
As I understood him, Mr Casement adopted these submissions, but went on to emphasise that Mr Brown left before the totality of the administration of GHB and while Mr Lovison was still awake and standing.
In response, Mr Rochford submitted, first, that Mr Price, having caused the non‑consensual consumption of GHB, ought to have rendered assistance when Mr Lovison lost consciousness.
Second, Mr Rochford observed that the expert evidence confirmed that the amount of GHB in Mr Lovison’s body at post-mortem was consumed within hours of death. Further, that amount was “potentially fatal”, in that the research demonstrates GHB concentrations more than 100 milligrams per litre can lead to unconsciousness and death, but generally fatal overdoses have been reported in concentrations between 200 and 400 milligrams per litre, yet the concentrations in Mr Lovison’s blood and urine were greater than 2,000 and 7,500 milligrams per litre respectively.
Thirdly, Mr Rochford emphasised that Mr Lovison remained a missing person for over a month, and that it is only since the sentence indication hearing that his family have had some explanation of what occurred to occasion his death.
Fourthly, Mr Rochford took issue with Mr Marsh’s classification of the offence as at the lower end of gravity. Instead, he submitted that, in all the circumstances, these instances of manslaughter fall towards the mid-range on a scale of gravity.
Finally, Mr Rochford accepted that Mr Brown’s culpability for the offending was less than Mr Price’s.
These offences of manslaughter are unusual, and I find them difficult to categorise. This is because, for example, one the one hand, the level of dangerousness, both objectively and subjectively, involved in the behaviour engaged in here is, in my view, not to be equated with, say, a manslaughter involving violence by stabbing with a knife to a vital area of the body or by bashing another to the head. Yet, on the other hand, there was a good deal more planning and prolonged terror involved in both the lead‑up behaviour and the acts causing death in this case than in a case of a spontaneous stabbing or bashing.
In those circumstances, while I am reluctant to apply too precise a taxonomy, I am prepared to say that I do not accept that these offences should be classified as being at the lower end of the spectrum of manslaughters. Instead, I think that Mr Rochford’s notion of the offending falling towards the mid-range of gravity is closer to the mark.
I also accept his and Mr Casement’s submissions that Mr Brown’s offence involves a lesser involvement by him and a lower level of culpability than Mr Price’s offence.
Firearms offences
On the day of Mr Price’s arrest, police found at his premises a Lee-Enfield 303 calibre rifle and a Winchester 30-30 calibre rifle, both of which were unregistered. On a separate indictment, in respect of each rifle, Mr Price was charged with an offence of possessing a Category A or B firearm that was not registered.[9] Upon arraignment at the plea hearing, Mr Price pleaded guilty to those charges.
[9]Contrary to s 6A of the Firearms Act 1996 (Vic).
Each offence carries a maximum penalty of two years’ imprisonment.
Mr Marsh indicated that he was content that I act on the basis that these were the firearms Mr Price and Mr Brown possessed in the course of the manslaughter.
Mr Marsh explained that the older of the two rifles was a gift to Mr Price. Further, at the time of these offences, he had a current Queensland shooter’s licence and was in the process of trying to transfer his licensing to Victoria.
Mr Price’s plea in mitigation
Personal circumstances
I turn now to the mitigating factors urged by Mr Marsh, commencing with Mr Price’s personal circumstances.
For many years, Mr Price lived a simple family life with his wife and two young sons. He also has an adult daughter, who lives in South Australia.
Then two very significant events occurred in Mr Price’s life. First, his wife developed breast cancer. Mr Price was forced to sell the family home to fund her treatment. Ultimately, she died in 2016.
Second, until 2018, Mr Price had a strong history of employment. He had worked in screen printing, mining, dairy farming, and occupational health and safety. Most recently, he had been employed at the Morwell open cut mine for ten years, but was made redundant in 2018 upon the closure of the mine.
In the wake of those two events, Mr Price’s previously stable life began to unravel. He began using illicit drugs from 2019, including methylamphetamine and GHB.
In a report dated 8 July 2022, written while Mr Price was in custody, forensic psychologist Christine Kennedy identified that he suffered stimulant use disorder, classified as severe and in sustained remission in a controlled environment, and sedative, hypnotic or anxiolytic use disorder, classified as severe and in sustained remission in a controlled environment.
Happily, substance use is no longer an issue for Mr Price. In addition to undergoing enforced abstention while in custody, he maintained abstinence from all illicit substances while on bail for 11 months, after being granted bail by Lasry J in July 2022.[10]
[10]See Re Price (No 2) [2022] VSC 441. He was refused bail on an earlier application (see Re Price [2021] VSC 31).
After Mr Price was made redundant, he bought the property at Haunted Hills Road, where he was building a house at the time of his arrest. While on bail, he resided with his parents on their farm in Boolarra.
Following the plea hearing on 9 June (two weeks ago), Mr Price was returned to custody. This was done without opposition, given his acceptance of the inevitability that the sentence to be imposed would require his further incarceration.
On 31 August 2021, Mr Price, while in custody, was diagnosed with chronic lymphocytic leukaemia (“CLL”). While on bail, Mr Price attended for rounds of chemotherapy and other treatment. His treatment remains ongoing.
In a report of 22 March 2022, haematologist Dr Robin Filshie noted the following. CLL can be fatal in a small proportion of people, but most have an excellent prognosis after treatment. Some people are more susceptible to infection. Generally, treatment for CLL is chemotherapy with rituximab. There are some newer treatment options, including newer drugs. There are presently clinical trials operating for persons with CLL, however it is difficult to enrol prisoners in clinical trials. There appears to be no obvious indication for immediate treatment, however Mr Price will require ongoing review.
In a letter of 8 March 2023, Dr Tricia Wright, who is a haematologist and general physician, indicated the following. Mr Price is diagnosed with CLL, currently in clinical remission following chemotherapy. He will continue to be monitored. He suffered a complication in October 2022 with an episode of deep vein thrombosis which was treated with anticoagulant medication, which treatment has now ceased. He is currently being treated with duloxetine (an anti-depressant) and quetiapine (an antipsychotic used as an adjunctive treatment for major depressive disorder).
Mr Marsh tendered three references as to Mr Price’s character. Christopher Wendt is a long-standing friend of Mr Price. He speaks of Mr Price’s resilience and dedication to his family. Mr Wendt acknowledges that Mr Price has made mistakes, but maintains that he has learned from them, and is committed to his own rehabilitation and the support of his family.
Harry Price is Mr Price’s father. He speaks of the impact of Mr Price’s late wife’s diagnosis with cancer and three-year decline before her death in 2016, as well as his son’s loss of employment at the Hazelwood power plant. He is devastated and in disbelief at his son’s actions, and says they are antithetical to the values of his large and law-abiding family. He concludes by pledging his and his family’s ongoing support for his son.
Lyndal Guy is a lawyer and Mr Price’s cousin. She speaks of the diagnosis and decline of Mr Price’s wife, and the impact this had on Mr Price. In her view, he is a person whose personality is fundamentally non-confrontational, and that she sees his involvement in this crime as out of character. Significantly, she observed his insight into how his actions have deprived the Lovison family of their son, and how he is remorseful for having caused their loss.
Plea of guilty
Turning to the particular factors urged in mitigation, I accept that, for a combination of reasons, Mr Price’s plea of guilty must attract substantial mitigatory weight.
First, the plea has significant utilitarian value because it avoids the cost of a long trial and the emotional toll on witnesses.
Second, it is of additional weight in view of the backlogs in the criminal justice system resulting from the effects of the pandemic.
Third, the plea was entered in the face of an arguable defence. The prosecution case was considerably weakened once a key witness (Mr Alan) died and much of his proposed evidence was ruled inadmissible by Hollingworth J at a pre-trial hearing. In any event, as I see it, there were always going to be real issues to be tried concerning dangerousness and the cause of death.
Remorse
Next, I am satisfied that both the references and the entry of the plea of guilty show that Mr Price is remorseful for his crime and the devastation he has caused to the Lovison family.
Character
The third factor in mitigation for Mr Price concerns his character. At 50, Mr Price has no prior convictions. When that fact is coupled with the sentiments in the references and his strong work history, I am persuaded that he is to be sentenced as a person of previous good character.
Hardship in custody
Next, for three reasons, I am satisfied that Mr Price’s time custody has involved, and to a lesser extent will continue to involve, particular hardship that must be brought to account in mitigation.
First, for much of this time until recently, he has been in prison under the weight of a murder charge and all that comes with it. That weight, of course, has now been lifted.
Second, it is now notorious that time spent in this State’s prisons has been more onerous than usual in the last few years as a result of the pandemic’s effects on incarceration protocols. Among other things, those protocols have involved periods of quarantine and reduced access to programmes and family visits for prisoners, as well as more frequent and longer periods during which prisoners have been locked in their cells. There has also been the ever-present concern associated with contracting the virus within the confines of custody. While these restrictions have varied in their intensity as the threat of the virus has waxed and waned, they have applied, in one way or another, to the whole of the period of Mr Price’s incarceration. It is to be assumed that they will continue for some time yet. This additional hardship operates in mitigation of sentence.
Thirdly, as we have seen, Mr Price was diagnosed with a serious condition while in custody, which must have made his time harder. Happily, he appears to have a reasonable prognosis now. Nonetheless, I expect that his return to custody while still in a state of medical uncertainty will continue to play on Mr Price’s mind.
Prospects of rehabilitation
Finally, I am satisfied that Mr Price has strong prospects of rehabilitation. The factors driving me to that conclusion include his plea of guilty, remorse, prior good character, excellent work history, family support, and rehabilitative efforts while on bail, and the salutary effect of incarceration. I think it is very unlikely that Mr Price will reoffend in this or any other serious way.
In my view, these prospects must be reflected not only in the total effective sentence to be imposed but also in the non-parole period, which should be such as to allow an opportunity for release on parole for a substantial period.
Mr Brown’s plea in mitigation
Personal circumstances
I turn now to the mitigating factors urged by Mr Casement, commencing with Mr Brown’s personal circumstances.
Following the separation of his parents when he was aged 12, Mr Brown resided for a short period with his mother, and then ultimately with his father. He has very little relationship with his mother. He has two younger sisters, one of whom he is close to.
After commencing drinking alcohol at 13, it quickly became a problem for him despite his tender years. His father has a history of alcoholism. From the age of 14, Mr Brown commenced using cannabis.
Mr Brown suffered physical abuse at the hands of his father. Consequently, from the ages of 14 to 22, he resided with his grandmother. He has a very close relationship with her, and she is very supportive of him.
Until recently, his relationship with his father was fractured and marred by conflict. His bail was varied, however, to permit communication and contact between them in an attempt to take some steps toward civility and perhaps to repair the relationship.
Initially, Mr Brown was educated only to a Year 9 level. He experienced bullying in his formative years at school which precipitated truanting. However, to his credit, he later completed a Year 11 equivalency at TAFE, and thereafter a Certificate II in Engineering, and a Certificate II in Metal Fabrication. By the age of 18, he had completed an apprenticeship in metal fabrication. He then worked in power stations.
However, his adulthood also brought about daily use of methamphetamine. As a result of this drug use, there have been significant gaps in his employment. Happily, the birth of his daughter impacted on his decision to cease using methamphetamine. He was, however, taken into custody only ten days after she was born.
Since around 2015, Mr Brown has resided with his partner Shannon Jolley. Their relationship has spanned a period of eight years, and they now have two children together (a boy aged four and the girl aged two).
In the 12 months before his arrest, Mr Brown managed stable employment. He was, however, drinking quite heavily on a daily basis. It appears that there was an element of self‑medication in this behaviour.
Mr Brown spent 22 months in custody until being bailed by Champion J on 16 August 2022.[11] These were burdensome times. He experienced suicidal thoughts and was transferred to a medical cell for about eight days. Separation from his children and partner was very worrisome for Mr Brown. His partner told him that she was not coping without his assistance. This left him in a state of helpless rumination. Ultimately, during his time on remand, the relationship between Ms Jolley and Mr Brown endured significant pressure and conflict. Largely as a result of the pandemic restrictions, however, Mr Brown’s time with his children was confined to video contacts once a week, with very few face-to-face visits, and he had to spend about 60 days in isolation.
[11]See Re Brown [2022] VSC 578.
Encouragingly, Mr Brown completed numerous alcohol and drug counselling sessions during his time in custody. He sought psychological assistance, but because of the convergence of his remand status, sparse resourcing, and the pandemic, he never received it.
While in custody, Mr Brown maintained consistent employment in the canteen. He also worked in metal works, which had him deploying skills he had acquired in his apprenticeship.
After his release on bail, Mr Brown did very well in the community. First, he worked consistently in abattoir transportation with his father-in-law Tim Jolley. This involved regular truck travel to Melbourne and heavy lifting of meat carcasses to butcher stores. References provided by Mr Jolley and a co-worker Helen Lawrence show that Mr Brown has distinguished himself with industry, commitment and attitude during that period of work.
Secondly, Mr Brown devoted significant time to his partner and children. After a difficult start, he was able to bond with his very young daughter, who had never really lived with him before.
Thirdly, Mr Brown abstained from the use of illegal drugs and substances, and was treated with Suboxone. This was confirmed by a letter dated 7 June 2023 from his general practitioner Dr John O’Donoghue.
Fourthly, Mr Brown otherwise adhered to strict his bail conditions involving regular reporting and curfew restraints over a ten-month period.
Fifthly, in some contrast to his life at the time of the offending, the assistance he has provided to Ms Lawrence shows that Mr Brown is willing to help others, and place their needs ahead of his own.
Sixthly, Mr Brown was in the process of obtaining his truck driver’s license so that he might have realistic prospects of work after his eventual release under the sentence to be imposed today.
Thus, as Mr Casement submitted, the picture of Mr Brown at liberty is of a productive and industrious worker, and a dutiful father with a matured recognition of the important things in life.
Like Mr Price, despite these gains, Mr Brown, without opposition, returned to custody following the plea hearing so that he could begin serving the balance of the sentence inevitably to be imposed on him.
Plea of guilty
I turn now to the particular factors in mitigation urged by Mr Casement, commencing with Mr Brown’s plea of guilty. For the same reasons I gave concerning Mr Price, Mr Brown’s plea of guilty is a very important mitigating factor.
Remorse
Secondly, I am also satisfied that his plea of guilty indicates remorse. I should add that I detected a respectful and empathetic demeanour in both Mr Price and Mr Brown when the victim impact statements were read in Court by Mr Lovison’s family.
Hardship in custody
Next, for three reasons, I am satisfied that Mr Brown’s time in custody has involved, and to a lesser extent will continue to involve, particular hardship that must be brought to account in mitigation.
First, he too has spent all of his time in custody until recently under the weight of a murder charge.
Secondly, the same point I made about the pandemic protocols in this State’s prisons applies to Mr Brown’s time in custody, and graphically so.
Thirdly, as we have seen, Mr Brown had a particularly hard time in custody for parts of his remand, including being suicidal and in isolation for 60 days. Hopefully, those difficulties will not continue. But I expect that returning to prison, when he had done so well on bail, risks a deterioration in what appears to be his fragile mental health. I hope it does not go even further, and risk undoing his great strides towards reform.
Prospects of rehabilitation
Finally, when it comes to assessing Mr Brown’s prospects of rehabilitation, it is notable that he does not have the same work history as Mr Price. That said, Mr Brown’s performance at work while on bail has been exemplary, and gives me considerable cause for optimism.
Another difference is that, unlike Mr Price, Mr Brown has prior convictions. His offences have included breaching a family violence intervention order, aggravated cruelty to an animal, assault with a weapon, reckless conduct endangering serious injury, offending on bail, assault, criminal damage, drugs and weapons possession, and driving and dishonesty offences. The associated court appearances span the period 2010 to 2019. He has received dispositions ranging from three months in prison in one case to seven days in another, to a community correction order, fines and undertakings.
Nevertheless, I am satisfied that Mr Brown also has strong prospects of rehabilitation, although not quite as strong as Mr Price’s. Several factors bring me to that view. They include his plea of guilty, remorse, family support and rehabilitative efforts while on bail and in custody, and the deterrent effect of incarceration. I think it is unlikely that Mr Brown will reoffend in this or any other serious way.
In my view, Mr Brown should be encouraged in his efforts at reform by the fixing of a non-parole period that gives him the incentive to work towards his earliest possible release on parole, and then supervises him for a substantial period upon release.
Sentencing purposes
I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
General deterrence, denunciation and just punishment are important sentencing purposes in this case. All should understand that anyone who engages in an unlawful and dangerous act by the administration of drugs that causes the death of another usually will receive punishment by way of a substantial prison sentence for the crime of manslaughter.
As for specific deterrence and protection of the community, I consider that, while relevant, the weight to be given to those sentencing purposes is reduced in the case of both Mr Price and Mr Brown in view of their pleas of guilty, remorse and strong prospects of reform. While some added weight must be given to those purposes in light of Mr Brown’s criminal history, I am satisfied that that consideration is offset by the particularly salutary and harsh effect that his time in custody has already had on him.
Rehabilitation is an important purpose in fixing sentence in these cases. The gains both men have made since arrest, when coupled with their strong prospects of further reform, make rehabilitation a sentencing purpose that must be afforded substantial weight. It is also necessary to recognize the interplay between rehabilitation and protection of the community. Both men will be returning to the community eventually. It is therefore in the community’s interests that their prospects of rehabilitation be maximised, so that, when they are released from prison, their risks of reoffending are kept low and their chances of successful reintegration into society are as strong as they can be.
Section 5(3) of the Sentencing Act, relevantly, 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 common law principle of parsimony. It is an important principle, sometimes forgotten. I have applied this provision and this principle when considering the appropriate sentences.
Current sentencing practices
Introduction
As far as I can determine them, I have also had regard to current sentencing practices for manslaughter. This consideration is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the synthesis.
Sentencing statistics for manslaughter
Sentencing statistics show that, in respect of prison sentences imposed for manslaughter for the period from 2015-16 to 2019-20, they ranged in length from about one‑and‑a‑half to thirteen years. The average term over the whole period was eight years and five months, and the median and the mode were nine years. The median non‑parole period was six years, and the mode was five years.[12]
[12]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 249, April 2021, pp 3-5.
These statistics are, however, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations — such as the gravity of the particular offence and the accused’s role in it; whether or not there was a plea of guilty, an undertaking to assist the authorities, relevant prior convictions, or other significant aggravating or mitigating factors; the age of the accused; and so on. Nevertheless, they do give some guidance.
Case comparisons
Sometimes, case comparisons may assist in gauging current sentencing practices. With this in mind, helpfully, counsel referred me to a few cases with some limited similarities to this one, which I have considered.[13] However, the reality is that none of those cases is usefully similar to the present case.
[13]See Levy v The Queen [2020] VSCA 44; and Mitchell v the Queen [2018] VSCA 158. Mr Marsh also referred to the West Australian case of Bell v The Queen [2003] WASCA 216.
The reality is that it is almost always difficult usefully to compare other sentencing decisions. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished.
In the end, as always, because of the limits of the process of comparison, both as a matter of fact and in principle, I have been driven to rely mostly on the circumstances of this case and sentencing principles to arrive at the appropriate sentences in the present cases.
Parity
The parity principle also has a role to play. Mr Marsh accepted that, while Mr Price’s role in the offending must be considered somewhat more serious than Mr Brown’s, he pointed to differences pulling in the other direction, including, for example, their differing criminal histories, Mr Price’s health problems, and his more impressive work history. I agree that there are offsetting features in the two cases, but I think the differences in the sentences to be imposed on them properly balance the various competing factors.
As I understood them, all counsel agreed that the lesser role played by Ms Guillerme in the offending and her powerful mitigating factors, especially her undertaking to assist the authorities, made comparisons with her sentence largely inapposite. Nevertheless, I think that the existence of Mr Guillerme’s sentence places at least some constraint on the sentences I am about to impose.
Totality
Possession of rifles
The principle of totality must be considered in two particular ways in sentencing Mr Price.
The first concerns the sentences for the offences of possessing the unregistered rifles. Mr Rochford and Mr Marsh submitted that I should impose a prison sentence on Mr Price for each of those offences and direct that those sentences be served concurrently with each other and with the sentence on the manslaughter.
Ordinarily, I should have thought that, given Mr Price’s lack of criminal history, mere possession of two unregistered rifles would result in a fine or an undertaking to be of good behaviour. Further, it must be borne in mind that such criminality as there is in using the rifles, as opposed simply to possessing them without registration, is already factored into the sentence to be imposed for the offence of manslaughter in the case of each man. Finally, while the possession of those rifles by Mr Price on the charged date (which was six months after the manslaughter) amounts to separate offending, it is offending that is swamped in gravity by the manslaughter.
However, allowing for the foregoing matters, and in keeping with counsel’s joint submission, I have determined that very modest prison sentences should be imposed, and that those sentences should be concurrent with each other and with the manslaughter sentence.
Loss of 60 days’ pre-sentence detention resulting from another sentence
The second matter arises from the fact that Mr Price has a subsequent conviction for which he received a sentence of 60 days’ imprisonment served during the currency of his remand on the homicide. The service of that 60-day sentence means that he has lost 60 days’ pre-sentence detention that would have been attributable to the manslaughter and firearms sentences.
As a result, I must have regard, as a matter of totality, to the fact that, in real terms, the total effective sentence and non-parole period I am about to impose will thereby each be two months longer than stated. This point is all the more significant when regard is had to the likelihood that, had the 60-day sentence been imposed following the imposition of sentence on the manslaughter and firearms offences, it would have been directed to be served concurrently with that sentence.
I have had regard to these matters in sentencing Mr Price on the manslaughter and the firearms offences. I have also had regard to these matters for the purpose of considering the parity principle, particularly vis-à-vis the respective sentences to be imposed on Mr Price and Mr Brown.
Sentence
Same sentences as indicated
I turn now to impose sentence.
Mr Price and Mr Brown, would you stand, please?
It is for the foregoing reasons that I will now sentence in both cases in accordance with the indications I gave at the sentence indication hearing.
Mr Price
For the manslaughter of Jarrad Lovison, Andrew Price is convicted and sentenced to seven-and-a-half years’ imprisonment. On each offence of possessing an unregistered gun, Mr Price is convicted and sentenced to seven days’ imprisonment. Each of those two sentences is directed to be served concurrently with the other and with the sentence on manslaughter. That makes a total effective sentence of seven‑and‑a‑half years’ imprisonment. I fix a non-prole period of four-and-a-half years.
Pursuant to s 18 of the Sentencing Act, I declare that, including today, Mr Price has served 586 days of pre-sentence detention under this sentence.
Pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Price not pleaded guilty but been found guilty of manslaughter and the firearms offences following a trial, I would have imposed a total effective sentence in the order of ten‑and‑a‑half years’ imprisonment with a non-parole period of seven-and-a-half years.
Pursuant to s 151 of the Firearms Act 1996 (Vic), I make the forfeiture order sought by the Director.
Mr Brown
For the manslaughter of Jarrad Lovison, Jake Brown is convicted and sentenced to seven years’ imprisonment. I fix a non-prole period of four years.
Pursuant to s 18 of the Sentencing Act, I declare that, including today, Mr Brown has served 679 days of pre-sentence detention under this sentence.
Pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Brown not pleaded guilty but been found guilty of manslaughter following a trial, I would have imposed a sentence in the order of ten years’ imprisonment with a non-parole period of seven years.
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