R v Rozynski (No 2)
[2023] VSC 773
•15 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0048
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOSHUA ROZYNSKI | Accused |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2023 |
DATE OF SENTENCE: | 15 December 2023 |
DATE OF RULING: | 19 December 2023 |
CASE MAY BE CITED AS: | R v Rozynski (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 773 |
---
CRIMINAL LAW — Sentence — Murder — Dispute over drugs — Car chase on public roads — Victim shot at close range with sawn‑off shotgun — Serious example of murder — Modest criminal history — Guilty plea — Remorse — Dysfunctional and turbulent upbringing — Guarded rehabilitation prospects — Sentence indication given — General deterrence, denunciation and just punishment important — Specific deterrence and community protection important — R v Verdins (2007) 16 VR 269 — Bugmy v The Queen (2013) 249 CLR 571 — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | N Hutton A Malik | Office of Public Prosecutions |
| For the Accused | S Tovey | Balmer & Associates |
HIS HONOUR:
Introduction
Joshua Rozynski, on 5 June 2023, you pleaded guilty to murdering Daniel Eagle on 27 March 2021. You shot and killed Mr Eagle with a single shotgun blast to his right upper back, while he was seated in the front passenger seat of a vehicle that had just been involved in a collision in Corio.
The maximum penalty for the offence of murder is life imprisonment. Murder is a standard sentence offence.
Background
Mr Eagle was 44 years old at the time of his death. He resided in Norlane with his partner, AG, and their children.
At the time of Mr Eagle’s death, you were 26 years of age and were living in Corio with your partner and children. You are the step‑son of Scott Perry and the half‑brother of Zachary Perry, both of whom were present at events preceding the murder of Mr Eagle.
You and Mr Eagle were known to each other.
Circumstances of the offending
Background and first confrontation
In the early hours of the morning of 27 March 2021, Mr Eagle, in company with Matthew Gibbons and Kerubino Angok [‘his associates’], arranged to purchase drugs from your step‑father and half‑brother.
Mr Eagle made a small down‑payment on this purchase, but before he was to receive the drugs, he decided to cancel the deal. Mr Eagle and his associates then attempted to recoup the deposit they had made.
According to Mr Eagle’s associates, the drug deal was an attempt to set up your half‑brother so that Mr Eagle could confront and assault him or your step‑father.
This led to a dispute between, on the one hand, your step‑father and half‑brother, and on the other hand, Mr Eagle and his associates. Damage was caused to your step‑father’s home in Corio. Some time later, shots were fired into Mr Eagle’s home at around 5:10am. Mr Eagle was not at home when this occurred, but his partner, AG, was.
After the shooting occurred, AG contacted Mr Eagle by phone and told him what had happened. She also called the police, who arrived at approximately 5:30am.
It is not alleged that you were directly involved in the damage caused to Mr Eagle’s home. However, these events formed part of the circumstances surrounding your later actions.
The second confrontation
Meanwhile, having learnt about the shooting at his home, Mr Eagle went to a friend’s house in Norlane at about 5:45am. Mr Eagle had stored a firearm at this house approximately six weeks before. It is believed he had stored the firearm at this address in order to evade the terms of a firearms prohibition order that applied to him.
Mr Eagle told his friend that someone had shot up his house, while his partner was at home, and that he needed to retrieve the firearm. He obtained the firearm, and then left the property in a white Ford Territory [‘the Territory’] with his two associates. Gibbons drove the Territory, while Mr Eagle sat in the front passenger seat and Angok sat in the back.
Mr Eagle and his associates drove the Territory back to your step‑father’s home in Corio. By this time, you were also present at your step‑father’s home, having been contacted by your half‑brother.
It is unclear exactly what happened when Mr Eagle arrived at your step‑father’s house. However, it is not in dispute that a further argument took place between your step‑father and Mr Eagle. Some damage occurred to your step‑father’s property during this argument.
Mr Eagle and his associates then got back into the Territory and drove away. Again, Gibbons was driving, while Mr Eagle was sitting in the front passenger seat.
The offence
Having watched Mr Eagle and his associates depart the scene, you got into a Toyota Landcruiser [‘the Landcruiser’] as a passenger. Either your step‑father or half‑brother were driving. At some point before getting in the car, you obtained a sawn‑off shotgun.
The Landcruiser you were in then pursued Mr Eagle’s Territory. CCTV captured you discharging a shot from the Landcruiser, which appeared to strike the Territory at 5:59am. This caused the Territory to drive onto the footpath. Immediately following the shot, your Landcruiser performed a U‑turn to follow the Territory.
Your Landcruiser then followed the Territory through Corio. Occupants from both vehicles were firing shots at each other. It is not possible to determine the exact route taken by the two vehicles, however, it is common ground that this driving occurred over a short period of time.
At approximately 6:01am, the Territory arrived at the intersection of Princes Highway and Harpur Road, Corio. There it collided with a ‘StarTrack’ branded semi‑trailer. Significant damage was caused to both the StarTrack semi‑trailer and the Territory. Photos of the Territory show that its bonnet and engine compartment was heavily crushed and twisted by the force of the collision.
The collision was witnessed by BH and BA, who were travelling north on the Princes Highway. BH observed Mr Eagle’s Territory speed out of Harpur Road and onto the Princes Highway, where it was ‘T‑boned’ by the StarTrack semi‑trailer. BH saw your Landcruiser come from the same direction as the Territory and stop in the service lane of the Princes Highway. The distance between the Landcruiser and the Territory, once both vehicles had come to a stop, was between 10 to 15 metres.
BH saw you get out of the Landcruiser and approach the Territory with the sawn‑off shotgun. You leaned into the Territory on the driver’s side, across Gibbons, and fired a shot towards the passenger seat. This shot hit Mr Eagle in the right upper back while he was still seated in the passenger side of the Territory. BH ran up to the Territory and saw that Mr Eagle was unconscious, with his eyes rolled up into the back of his head.
The evidence does not indicate one way or the other whether Mr Eagle was stationary inside the Territory at the time the shot was fired. It is also unclear whether Mr Eagle was wearing a seatbelt. However, at the time you fired the fatal shot, Mr Eagle had his back to the gun’s muzzle.
These events were also witnessed by RY and GA, who were travelling along Princes Highway towards Melbourne. RY described hearing a “loud bang” as you shot Mr Eagle. In his witness statement, GA stated he saw you fire the fatal shot.
You then ran back to the Landcruiser, which drove off in the service lane along the Princes Highway in the direction of Melbourne. You travelled back to your step‑father’s home, arriving at approximately 6:06am.
On arrival, you collected your motor vehicle, which was parked at the front of your step‑father’s home. You drove to your home, where you burned your clothes in a firepit in your rear yard.
After these events, police later attended your step‑father’s home. The people present at the time reported to the police that they had heard shots discharged in close proximity to the house. The officers did not observe any ballistic damage to the premises.
The police investigation
Post-mortem examination
That same day, on 27 March 2021, a post‑mortem examination was performed on Mr Eagle’s body by a forensic pathologist. He found that Mr Eagle had suffered a shotgun wound to the right back (30 millimetres in diameter), minor abrasions to the forehead and a superficial scalp laceration. The forensic pathologist identified no other significant skeletal trauma that may have been caused by the motor vehicle collision and detected no significant natural disease.
The wound track from the shotgun blast extended on a horizontal plane through the posterior eighth rib, right lung, and heart. A three‑petal plastic wad was lodged in Mr Eagle’s heart. The forensic pathologist determined that the blast was fired from a close to intermediate range.
He concluded that the cause of death was a single shotgun wound to the back.
Arrest and interview
Also on 27 March 2021, police executed a search warrant at your step‑father’s home in Corio. The Landcruiser used by you in the offending was found at his address. Your step‑father was arrested and taken to Geelong Police Station for questioning. He gave a ‘no‑comment’ response to all questions asked. Following this, he was released from police custody.
On 28 March 2021, you and your half‑brother surrendered yourselves into custody at Geelong Police Station, where you were questioned by investigators.
During your interview, you stated the following about the events of 27 March 2021:
(a) you were at home playing play‑station. You received a call on your phone from your half‑brother, Zachary, asking you to come over to your step‑father’s house as it had been “shot and smashed up”;
(b) you went to your step-father’s house and saw damage, then heard “a few more shots and tyres squealing off”;
(c) you grabbed your step-father’s keys to the Landcruiser and, on leaving, saw a gun on the ground which you picked up and took with you in the car;
(d) you and your half‑brother got in the car, chasing Mr Eagle with the intention to “scare him, hit him, nudge him”. You continued to chase Mr Eagle’s car until it was hit by a truck and “flipped around and shit”;
(e) you got out of your car with the gun in your hand. You grabbed it because it was there;
(f) as you walked up to the Territory there was a bang, which you thought was a sign they were firing at you. Upon hearing the bang, you ducked. As you ducked, the gun went off. However, when asked if you pulled the trigger, you answered “I had to. I obviously had to”;
(g) you then “legged it” and threw the gun out the window of the car, the whereabouts of which you cannot recall; and
(h) you burned the clothes you were wearing in your backyard.
You denied going around to Mr Eagle’s home and firing at his house in the early morning of 27 March 2021.
You also made other comments to police during the course of the interview, including:
(a) that you were “fucked”;
(b) that, in respect of Mr Eagle, “The cunt shot up someone’s house. And he got fuckin’ shot. To me that looks pretty simple”; and
(c) “I shot the cunt. What more can youse ask from me.”
On 28 March 2021, police executed a search warrant at your address. They located charred fabric and metal items in the firepit of the backyard of your home. Also located at your address was a ‘Swann’ branded hard drive, which contained CCTV footage showing:
(a) you burning your clothes in the backyard; and
(b) one of your associates attending your home, whereupon it appears that you re‑enacted the murder for them.
You were taken into custody and charged with murder that same day.
Procedural history
On 6 August 2021, you attended a committal hearing. Some six months later, on 21 February 2022, you offered to plead guilty to manslaughter. The prosecution rejected this offer.
Various hearings were then held, including a compulsory examination hearing, a contested committal hearing, section 198B examinations and directions hearings. On 8 March 2023, a case conference was held and the matter was listed for pre‑trial.
However, on 5 May 2023, you applied for a sentence indication hearing on the charge of murder. The application was not opposed by the prosecution, so I heard the application on 26 May 2023.
On 31 May 2023, I ruled that, should you plead guilty to the charge of murder, I would impose a sentence of no more than 25 years’ imprisonment. You accepted this indication and entered a plea of guilty to the charge of murder on 5 June 2023, approximately two years and two months after you were charged.
Victim Impact Statements
The court has received three Victim Impact Statements from Mr Eagle’s partner and members of his family.
Mr Eagle’s partner — AG
AG was Mr Eagle’s partner. They had planned to get married in the future. AG described Mr Eagle as her “best friend” and the family’s “rock”. She says she will miss talking to him and hearing his laugh.
AG told the court that Mr Eagle’s death had severely affected her and her family. She says she suffers from severe anxiety, has a preoccupation with her own safety and has become “a complete hermit”. She believes Mr Eagle’s death has caused her family to fall apart. Further, without the financial support of Mr Eagle, AG says she now struggles to pay bills and cannot afford as much food.
In summary, AG stated that your actions have stolen the future she had envisaged for herself. She says she has lost hope, and that she cannot envisage a long term or happy life ahead.
Mr Eagle’s mother — LE
Mr Eagle’s mother, LE, told the court she had been devastated by the loss of Mr Eagle. He was her only child. She says she will never get over his death, and that she cries when she sees photos of him. Despite the fact that nearly three years have passed since his death, LE says she still has not yet come to terms with Mr Eagle being taken from her “so violently and tragically”.
In the wake of her son’s death, LE says she regularly experiences panic attacks and anxiety, for which she has been placed on medication. She describes Mr Eagle as a respectful, loving and doting father, who would do anything to help his family.
Mr Eagle’s daughter — RE
Mr Eagle’s daughter, RE, has been profoundly affected by his death. She describes feeling suicidal after the loss of her father, who she viewed as her “superhero” and protector. RE says she will miss Mr Eagle’s laugh and sense of humour, and described her grief at the knowledge that he would not be present for significant milestones in her life.
The psychological impacts of Mr Eagle’s death have left RE unable to gain proper employment and caused her to withdraw from friends and family. Moreover, she says she feels a deep sense of betrayal at the fact that you were responsible for her father’s death, given she thought of you as a “close family friend”.
Summary
It is clear that Mr Eagle’s death has greatly impacted those who knew him. The Victim Impact Statements provided to this court show that the consequences of your actions are severe, causing lasting psychological and financial pain to Mr Eagle’s partner, mother and daughter. I have carefully considered their words and taken them into account in determining the sentence I will impose upon you.
Personal circumstances
You were 26 years old when you murdered Mr Eagle. You are now 29.
The material before the court indicates that you do not know who your biological father is. Your mother commenced a relationship with your step‑father, Scott Perry, while she was pregnant with you. You are one of 11 siblings and half‑siblings.
Your childhood has been described as “chaotic, unstable and abusive”. Your mother was not able to properly care for you and your siblings due to ongoing and serious mental health issues and substance use. Your family home life in South Australia was marked by drug use, violence, and chaos. In addition, your step‑father was regularly in and out of prison during your childhood.
As a result, you were constantly shifted between your immediate family in South Australia and other family members in the Geelong area. You also spent some time in the care of the State.
Records from the South Australian Department for Child Protection provide a sobering picture of your early years. The case notes show that, by the time you were eight years old, you had witnessed ongoing domestic violence between your mother and step‑father, experienced a lack of supervision, been exposed to drug use and suffered emotional abuse from your parents. You were left distressed, anxious and scared. The records also indicate that, by your early teenage years, you had begun to use drugs and alcohol in order to deal with the stress and instability of your home life. As a result, you were expelled from multiple schools because of poor behaviour.
It is therefore a credit to you that, despite the extraordinary turbulence of your childhood, you were able to make it to Year 10 at Corio Bay High School.
Your employment history has been similarly successful. You started working in the automotive industry at age 15, and completed an apprenticeship as an auto electrician. At age 20 you began working as a bricklayer and subcontractor for local auto electrical firms. In addition, you took up shifts at a company called Timber Truss in Corio and launched your own landscaping and gardening business. You ran this business two days a week, whilst also becoming a floor manager at Timber Truss and doing auto electrical work when the opportunity arose.
With respect to your family and relationship history, you have had two serious relationships. Your first was with a woman named Sam, which lasted for about 18 months. The relationship produced a daughter who is now eight years old.
Your second relationship was with a woman named Sarah. It lasted for about nine years, and ended upon your arrest for Mr Eagle’s murder. You met Sarah when you were around 20 years old. You have had one child together, a six‑year old daughter. Sarah has another child to a previous relationship, whom you helped care for. The court has been told that you are a caring and loving father who, despite the significant disadvantage and turbulence you faced in your formative years, has worked hard to create a stable and productive life for yourself and your family.
There is also evidence that indicates you were an occasional drug user at the time of the offending, however, unlike your step‑father and half‑brother, you were not involved in the drug trade.
Criminal history
You have a limited criminal history that the prosecution described as “of no real significance to the court”. Your most recent prior conviction concerned a threat to inflict serious injury, which you made in a Facebook post that you sent while you were drunk. You did not act on this threat. The Magistrates’ Court fined you $800 for your behaviour.
You do not have a criminal history that includes serious violent or weapons offences.
Mental health
The court received two reports from Patrick Newton, a clinical and forensic psychologist at Central Melbourne Psychology. Mr Newton has more than 25 years of experience in assessing offenders. He conducted interviews with you, and authored two reports, the first of 23 August 2023 [‘the initial report’] and the latter, of 9 October 2023 [‘the supplementary report’].
Childhood and upbringing
In his initial report, Mr Newton stated he had discussed your upbringing with you. You described it to him as “a shit life” and said that your parents’ home was “a shit place to be brought up”. You also told him that, from childhood, you had spoken to many psychologists, but that you had not felt the need for this assistance.
You told Mr Newton that, since being placed on remand, you had been experiencing symptoms of post‑traumatic stress disorder [‘PTSD’], depression and substance‑related issues. You have received medication for depression and nightmares while being in custody, but have not received psychological counselling.
Drug and alcohol use
Mr Newton also discussed your substance use history with you. You told him that your drug use originated in childhood, when you commenced smoking cannabis at age 11. You obtained this cannabis from your parents. Mr Newton is of the opinion that you tended to downplay the significance of your cannabis use, which you consumed at high levels on a daily basis, such that you experienced transient episodes of cannabis‑induced psychosis.
In his report, Mr Newton also notes that you have a history of heavy drinking. Prior to having children, you would drink a ten‑pack of pre‑mixed spirits every night. After becoming a father, you reported reducing this drinking to a few cans most nights.
As for your use of other drugs, Mr Newton noted that you provided various accounts of your drug use and were not forthcoming. In his initial report, Mr Newton stated that you had admitted to him that you had used psilocybin (magic mushrooms), MDMA and amphetamines. You also told him you had never used methamphetamine. However, this is inconsistent with what you told a prison clinician in August 2022. The clinician was assessing you for an opioid substitution therapy program. You told the clinician that you had used “five or six pipes” of methamphetamine a day, along with heroin and prescription opiates. As a result of this answer, you were placed on the substitution program and given weekly injections of buprenorphine.
Given the significant inconsistency between what you told Mr Newton and the clinician, Mr Newton interviewed you again on 9 October 2023. In his supplementary report, he stated that you confessed to him that you had not been truthful about your use of opiates. You stated that you had lied to the clinician in order to get buprenorphine injections, primarily as a means of alleviating stress. Other prisoners had told you what to say to get access to the injections. You informed Mr Newton that your statements about methamphetamine use were fabrications and you strenuously denied using heroin.
As a result of all the above, Mr Newton diagnosed you with a mild‑to‑moderately severe substance‑use disorder, which is in early remission in a controlled environment.
In terms of any causal connection between your substance‑use disorder and your offending, Mr Newton notes that it was in sustained remission at the time of the offending. He is of the opinion that it did not have an active effect upon you at the time of Mr Eagle’s death.
Mental status and cognitive functioning
Mr Newton is of the opinion that you suffer from a mild‑to‑moderate level of PTSD, partly because of the trauma you experienced as a child and partly because of your most recent offending. He noted that you presented with significant anxiety and have experienced flashbacks of Mr Eagle’s death, along with a reoccurring fear that your half‑brother could have been injured in the earlier confrontation. You also expressed anxiety about the welfare of your children and former partner, and spoke of your distress at the prospect that you will have very little input into their lives.
Mr Newton also noted that you are experiencing some persisting symptoms of depression that, while noteworthy, do not warrant a diagnosis of depressive disorder. In addition, Mr Newton assessed your intelligence as falling in the low end of the normal range.
As for the connection between your PTSD diagnosis and your offending, Mr Newton states that your PTSD “developed after the offending took place and hence did not affect [you] at the time of the offending”. He is of the opinion that there is no realistic connection between your diagnosis and your actions at the time of Mr Eagle’s death.
As for your ongoing welfare in prison, Mr Newton opines that it is likely you will continue to experience symptoms of PTSD, and that this will cause you considerably higher distress than other prisoners. He states that the burden of imprisonment on you will be “significantly increased” by your PTSD.
Insight into offending
Mr Newton described you as a “relatively immature man with a limited appreciation of [your] emotions and subjective experience”. Nevertheless, he noted that you expressed regret for your offending and that you wished you could “take it all back”.
Risk assessment
Mr Newton conducted a detailed analysis of your risk for violent recidivism, relying on the widely‑used HCR‑20 criteria. He concluded that you are at an elevated risk of recidivism for further violent offending, due to your family history, substance use, the nature of your current offending and your limited emotional insight.
I also note that Mr Newton described your moral reasoning as:
founded on a pragmatic perspective: focused on the desired ends rather than on accepted societal morality or other principles regarding the means he might use to attain them.
Further, in reaching his conclusions (particularly in relation to your drug and alcohol use), Mr Newton stated the following about you:
I am mindful of his manifest tendency to tailor his statements and even incorporate falsehoods if this seems to be necessary to meet his goals. Such conduct raises self‑evident questions regarding Mr Rozynski’s credibility.
Submissions for Rozynski
On your behalf, numerous supporting documents and references were provided to the court, along with a written outline of submissions.
Objective gravity of offending
Your counsel submitted that your offending was not a case of pre‑planned or premeditated murder. It was contended that the circumstances giving rise to you entering the Landcruiser were not brought about by you, and occurred in the context of an attack on you and your family members. Your counsel drew the court’s attention to the “provocative” conduct of Mr Eagle and his associates over the course of the previous evening. Your reaction is characterised as “intimately connected” to these preceding events.
Nevertheless, your decision to pursue and shoot Mr Eagle was also submitted to have occurred in the “heat of the moment”. Your counsel contended that the shooting occurred within minutes of you and your family hearing gunshots outside of the family home, which resulted in an already‑chaotic situation spiralling out of control within the span of a few minutes.
However, it was also accepted that your offending took place following Mr Eagle’s collision with the StarTrack semi‑trailer. You left your vehicle while carrying a loaded sawn‑off shotgun, walked over to Mr Eagle’s severely incapacitated car, leant inside through the window and pulled trigger, striking him in the back. This was a very serious example of the crime of murder.
Plea of guilty, remorse and criminal history
It was submitted that your plea of guilty has high utilitarian value in this matter, in that it has saved court time, resources and the need for witnesses to give evidence. Your counsel contended that whilst it was not an early plea, it was also not late, and that a committal hearing and section 198B hearing was necessary for you to understand the state of the evidence against you.
It was submitted on your behalf that you have demonstrated remorse, evidence of which is found in your plea of guilty, the content of character references, and expressions during your record of interview. It was submitted that you have regret for the impact your actions have had on the Eagle family.
It was also contended that you have a modest prior criminal history, with no history of serious violence or weapons offences.
Application of Bugmy[1] and Verdins[2]
[1]Bugmy v The Queen (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
[2]R v Verdins (2007) 16 VR 269 (Maxwell P, Eames and Neave JJA).
Your counsel submitted, in light of the South Australian Department of Child Protection documents and the reports of Patrick Newton, that your “entire childhood” up until the age of around 15 was consumed by instability and chaos. It was contended that this instability has impacted the way you see the world, your ability to make decisions and your reasoning capabilities.
Your counsel submitted that the principles outlined in the case of Bugmy apply “with real force”, given that you have endured significant instability and trauma in your formative years. It was argued that your exposure to conflict, drug use, violence and instability has shaped your responses to stressful situations, such that your moral culpability is reduced. This, it was submitted, should mitigate the sentence to be imposed upon you.
Noting that Mr Newton has diagnosed you with PTSD, which has been resistant to treatment and reportedly continues to affect you at a “clinically significant level”, it was also submitted that the fifth and sixth limbs of Verdins are enlivened, in particular limb 5. Your counsel contended that your diagnosis will increase the burden of imprisonment on you.
It was also noted on your behalf that the Justice Health records subpoenaed to assist Mr Newton in the preparation of his reports indicated that you had reported a history of heavy methylamphetamine and heroin use to a prison clinician.[3] You did so in order to be placed on an opioid substitution therapy program. You subsequently indicated to Mr Newton that you overstated this history on the advice that it would make you a better candidate for the program. Therefore, according to your counsel, at the time of your offending you were an occasional drug user and, unlike your step-father and step-brother, were not involved in the drug trade.
[3]See paragraph 68 above.
Age and rehabilitation prospects
Your counsel submitted that your relative youth, being 26 years of age at the time of the offending, should be taken into account and that the principles in relation to young offenders have moderate application in this case.[4]
[4]Mills v The Queen (1998) 4 VR 235 (Phillips CJ, Charles and Batt JJA).
In terms of rehabilitation, it was contended that your prospects should be considered “very good”, particularly given the likely length of the sentence to be imposed, your lack of prior criminal history, your remorse, the various programs and work you have undertaken in custody, and the fact that the offending was “out of character”. Character references were provided to substantiate this point. It was also submitted that Mr Newton’s finding about your future risk is informed by your background and formative experiences and should be read in that context.
Non-parole period
Your counsel submitted that it would be open for the court to impose a non‑parole period of less than 70 percent of the head sentence in this matter, in light of your relative youth at the time of the offending, your reputation as being hard‑working, reliable and generally non‑violent, and in line with the principles articulated in Director of Public Prosecutions v Pan[5] and Power v The Queen.[6]
[5] Director of Public Prosecutions v Pan [2022] VSCA 98, [51] (Priest, Niall and Emerton JJA).
[6]Power v The Queen (1974) 131 CLR 623 (Barwick CJ, McTiernan, Menzies, Stephen and Mason JJ).
Sentencing practices
Your counsel provided this court with a list of comparable cases, to which I have had regard.
Submissions for the prosecution
The prosecution provided written submissions that responded to the arguments made on your behalf.
Objective gravity of offending
The prosecution characterises your offending as an act of retribution, in which you intentionally pursued and murdered Mr Eagle. You got out of the Landcruiser, armed with a loaded sawn‑off shot gun, and walked over to the damaged Territory. Mr Eagle, having just been in a serious motor vehicle collision, posed no threat to you and was facing away from you, yet you aimed the weapon at him at close range and shot him in the back, killing him.
The prosecution also notes that the collision between the Territory and the StarTrack semi‑trailer gave you a good portion of time in which you could have reassessed your pursuit and desisted. Your offending was therefore characterised as falling in the “midrange”, in the sense that it was not a crime that occurred in the heat of the moment, but nor was it the product of pre‑planning and premeditation.
Plea of guilty, remorse and criminal history
The prosecution concedes that you pleaded guilty to the very serious offence of murder, and acknowledges that this is of significance. However, it was submitted that your plea was not an early one, being made two years and two months after the offence, and on the eve of the trial.
Nevertheless, it is accepted that you have a significant level of remorse for your actions.
Application of Bugmy and Verdins
The prosecution did not dispute your counsel’s submissions surrounding the tragic and difficult nature of your upbringing, nor the contents of Mr Newton’s reports. It was conceded that your background attracts the general principles of Bugmy to some extent, and thus warrants a “moderate” reduction in your moral culpability.
The prosecution also conceded that Mr Newton’s report indicates you are entitled to some reduction of your sentence due to the application of both the fifth and sixth limbs of Verdins, namely:
(a) you are likely to suffer increased hardship in prison as a result of your PTSD diagnosis; and
(b) there is a risk that imprisonment will have a significant adverse effect on your mental health.
Age and rehabilitation prospects
The prosecution disputes the submission of your counsel that the principles applicable to youthful offenders apply to you. It was submitted that, given you were 26 years of age (without any cognitive issues and with significant life experience, a family of your own, extensive employment and an apprenticeship), the principles have no application.
As to your prospects of rehabilitation, the prosecution also takes issue with the characterisation of your rehabilitation prospects as “very good”. The court’s attention was drawn to Mr Newton’s reports, where he assessed your risk of violent recidivism as “elevated”. Counsel for the prosecution submitted that I should find that your prospects for rehabilitation are somewhat guarded, and “less than good”.
Custody status and pre-sentence detention
The prosecution accepts that pre‑sentence detention at the time of the plea hearing was 928 days.
Analysis and discussion
Sentencing factors
Maximum penalty
The maximum penalty for murder is life imprisonment. It is a Category 1 offence. A term of imprisonment must be imposed unless one of the exceptions in section 5(2H) of the Sentencing Act 1991 (Vic) [‘the Act’] can be established.
Standard sentence
As above, the standard sentence for murder is 25 years’ imprisonment. However, I note that the standard sentence is simply one of the relevant sentencing factors to which the court must have regard. The common law approach of “instinctive synthesis” still applies.[7] I have taken into account the standard sentence for murder and had regard to it.
[7]The Act, s 5B(3)(b).
The seriousness of the offending
Your actions are a serious example of the offence of murder. This is particularly so given that the lead up to Mr Eagle’s death and the shooting occurred in a public setting, namely suburban streets, and in the early hours of the morning at a time when people might have been expected to be in the vicinity, as they turned out to be. The evidence before me indicates that your chase of Mr Eagle resulted in one or more of the cars mounting pedestrian paths, while travelling at high speed on public roads as shots were fired back and forth. Your conduct preceding Mr Eagle’s death was reckless, dangerous and entirely unacceptable. Members of the public are entitled to traverse the suburbs of Geelong without fear of being injured in or witnessing a shootout. Indeed, your actions were seen by multiple people, who described their concern and horror at the events that unfolded before them. Further, the chase between yourself and Mr Eagle directly led to the crash with the StarTrack semi‑trailer. It is fortunate that no other members of the public were harmed.
Your actions immediately after the collision between Mr Eagle’s Territory and the StarTrack semi‑trailer can only be described as senseless. Whilst your counsel has urged me to view your offending in the context of rapidly unfolding circumstances, you still had multiple opportunities to pause, reflect on your actions, and stop. Although I accept the events unfolded within a relatively short period of time, and Mr Newton’s report states that your decision‑making processes have taken on a particular style given your dysfunctional upbringing, you were not deprived of the ability to exercise restraint. You made the independent and deliberate choice to get out of your vehicle and approach Mr Eagle’s significantly damaged Territory. Instead of pausing and reflecting, and assisting the occupants with an act of basic humanity, you picked up the sawn‑off shotgun, walked to the Territory, leaned in through the driver’s window and shot Mr Eagle at close range.
I accept the distance you walked was relatively short, given the cars were approximately 10 meters apart. It is more than likely that you formed your intention to shoot Mr Eagle during this short walk. I also accept that tensions were high. Despite the lack of premeditation, I still regard you as having had the opportunity to reconsider your actions. I accept that you regret the decision you made and wish that you had simply turned around. But your actions, most likely fuelled by anger or a desire for revenge, were inexcusable.
I am unable to make a finding on when the firearm used to inflict the fatal shot came into your possession, beyond noting that it was within your vehicle, and once Mr Eagle’s vehicle had crashed and you exited your vehicle, it was in your possession. On the evidence I am unable to find that you were a shooter during the car chase. In any event, I accept the submission made on your behalf that not much turns upon this issue in this case.
The court does not have evidence about the state of the passengers of the Territory, one of whom was Mr Eagle, following the crash, beyond the fact that Gibbons gave evidence that the force of the collision left him “dazed”. The prosecution has not positively asserted that Mr Eagle was particularly vulnerable or unconscious, and I therefore cannot make a finding on this fact. I note however that he was shot in the back. He may have been slumped over or shielding himself from you. It is impossible to say.
Moral culpability
I accept, given the evidence placed before the court, that your subjective culpability is not the same as a person who has had the advantage of a stable and regular home environment during their formative years. I have no doubt your disadvantaged background has contributed to shaping your personality and responses to stressful situations.
As a result, I accept that the principles articulated in Bugmy[8] do apply in your case, and that these operate to reduce your moral culpability. However, their impact is somewhat qualified in your case. The court has been told that, despite your difficult upbringing, you largely pulled yourself out of your disadvantaged circumstances, undertaking an apprenticeship, obtaining gainful employment, and creating a family of your own. You have had little contact with the criminal justice system in your adult life, up to this point, and have been a functioning member of society, and clearly loved by your family. These matters are to your credit.
[8]See also: Director of Public Prosecutions v Drake [2019] VSCA 293 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
However, they also reduce the impact of the submission that your upbringing has indelibly shaped your life, personality, and responses. This is not to say that your dysfunctional upbringing did not leave a mark on you. Indeed, I accept that your ability to control your impulse to shoot Mr Eagle is likely to have been reduced on this occasion. Therefore, I have applied the principles articulated in Bugmy and reduced your moral culpability to a moderate extent when determining the sentence to be imposed upon you.
I also accept that limbs 5 and 6 of Verdins have application in your case, albeit also to a moderate extent. Your PTSD will undoubtedly make prison more burdensome. As with many prisoners, I accept that your mental health is at risk of significantly deteriorating in custody.
Guilty plea
It is to your credit that you pleaded guilty to the charge of murder. I note this did not occur at a particularly early stage, but was instead relatively close to the trial date. However, your offer at an early stage to resolve this matter by pleading to a charge of manslaughter demonstrates your remorse. You also cooperated in bringing your case to this court promptly.
I have taken these matters into account in mitigation of the sentence to be imposed. Your plea of guilty has avoided the need for a trial and has considerable utilitarian value. It has also relieved Mr Eagle’s family, relatives and friends from having to give evidence and watch a contested trial.
I also take into account that you have spent many days on remand during the COVID‑19 pandemic, and that the circumstances in which remand time was spent created an added burden on you, which otherwise would not have been the case.
Current sentencing practices
Your counsel has drawn the court’s attention to a number of cases. These included Bui v The Queen,[9] Kelson v The Queen,[10] R v Pyke,[11] Bedson v The Queen[12] and Director of Public Prosecutions v Pan.[13] I note that section 5B(2)(b) of the Act restricts my ability to analogise to sentences imposed prior to the introduction of the standard sentencing regime in 2018. This includes the decisions of Bui, Pyke and Bedson. I have therefore considered only the broad principles raised and dealt with in these cases.
[9]Bui v The Queen [2011] VSCA 404 (Neave, Redlich and Hansen JJA).
[10]Kelson v The Queen [2020] VSCA 112 (Priest, Hargrave and Weinberg JJA).
[11]R v Pyke [2006] VSCA 265 (Vincent, Eames and Redlich JJA).
[12]Bedson v The Queen [2013] VSCA 88 (Redlich, Weinberg and Coghlan JJA).
[13]Director of Public Prosecutions v Pan [2022] VSCA 98 (Priest, Niall and Emerton JJA).
As for Kelson and Pan, neither are completely analogous to the present circumstances. Kelson concerned a murder committed by the defendant when he was 26 years old. Both the defendant and the victim had consumed drugs and alcohol. While in a hallucinatory state, the defendant accused the victim of committing a non‑existent crime, and then proceeded to beat him. He then restrained the victim with duct tape, before driving the victim to a secluded area and striking him with knuckledusters, killing him. When evaluating the sentence, the court considered the defendant’s prior drug use, his dysfunctional childhood, prior convictions and intoxication at the time of the offending. The defendant was sentenced to 24 years’ imprisonment. There are therefore some commonalities between Kelson and the present case, namely your age, a turbulent upbringing and prior drug use. Although your offending was not as protracted as the offending in Kelson and you do not have any prior convictions of consequence, you were not intoxicated at the time of your offending, you used an illegal firearm in a way that was almost certain to result in the victim’s death and your actions took place in a public area.
Pan concerned a murder committed by the defendant when he was 19 years old. The defendant fatally shot his friend at close range with a shotgun, about half an hour after they had had a fight. In determining the appropriate sentence to be imposed, the court took into account the defendant’s prior convictions, young age, his upbringing as a refugee, low IQ, previous drug use and guarded prospects of rehabilitation. A sentence of 24 years’ imprisonment was imposed. While you do not have prior convictions of consequence like the defendant in Pan, many of the mitigating factors present in that case, such as the defendant’s young age and low IQ, are not applicable to you.
In summary, I have considered the cases raised by your counsel in determining the sentence to be imposed upon you.
Sentencing purposes
General deterrence, denunciation and punishment
The court is required to take into account the principle of general deterrence in sentencing you. Whilst the court’s consideration of general deterrence is tempered somewhat by the fact you have had a very sad and difficult early life, you remain an appropriate vehicle for general deterrence. The sentence imposed on you must send a message to the community that violent and reckless conduct will not be tolerated in our society.
It goes without saying that your conduct must also be publicly denounced by the court. I specifically emphasise that the use of an extremely powerful and illegal firearm, at close range, following a dangerous car chase, is egregious and serious conduct. The fact that it occurred in a public setting exacerbates the matter. Further, your plea of guilty to the charge of murder represents acceptance by you that you intended to kill or cause really serious injury to Mr Eagle. On any view of it, discharging a sawn‑off shotgun at another person at close range almost inevitably will result in catastrophic damage being inflicted.
Punishment is another sentencing purpose that must be taken into account. You have robbed a family of their loved one and put many other lives at risk in the process. There is no excuse for such behaviour. You must therefore be justly punished.
Specific deterrence, rehabilitation and protection of the community
You are still a young man who, despite spending many years in custody, will one day re‑enter the community. The sentence to be imposed must act to deter you from engaging in such conduct in the future, especially in light of the fact that you have been assessed as being an elevated risk of violent reoffending. I note the submission made on your behalf that you are still a relatively young and that the principles in relation to young offenders have moderate application on your case. This submission was not accepted by the prosecution. As above, you are now 29 years old, having been 26 when you committed this offending. In my opinion the principles referred to have minimal application in the sentencing exercise.
Nonetheless, I accept that your plea of guilty, expressions of remorse and your positive progress in custody lessen the emphasis to be placed on specific deterrence, noting that, as with general deterrence, your very difficult upbringing and the principles in Bugmy affect the weight to be given to specific deterrence in this case. I have also had regard to your limited criminal history in considering this factor.
Your prospects of rehabilitation are the subject of some disagreement between the parties. In light of Mr Newton’s comments that you are at an elevated risk of violent recidivism, I am not willing to assess your prospects as very good. While you have demonstrated remorse and have been productive in custody, I agree with the prosecution’s submission that your prospects are positive but guarded. In coming to this conclusion I have also taken into account that your previous background has been non‑violent, and the violence you have displayed on this occasion appears to have been out of character.
Community protection is also of relevance, in light of your elevated risk of reoffending. It is important that the community is not exposed to potentially violent behaviour in the future. At the same time, I do acknowledge that the person sentenced today may well be different to the one released into the community at the end of your sentence. Taking into account all matters put forward, I do not consider that protection of the community requires particular emphasis to be given in the sentence to be imposed.
Sentence
Having taken all of these factors into account, I sentence you to be imprisoned for 24 years.
Taking into account the desirability of giving you a lengthy parole period, I order that you serve 17 years’ imprisonment before being eligible for parole.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 29 years’ imprisonment with a non‑parole period of 24 years.
Pre-sentence detention
I further declare that that you have served 992 days of pre‑sentence detention, not including this day.
---
9
0