R v Bornstein[2024] QSC 270

SUPREME COURT OF QUEENSLAND

1. [1]
   Billy Lee Bornstein, you are to be sentenced today in respect of one count of manslaughter.

Guilty plea and conviction

2. [2]
   On Indictment 125 of 2024 you were charged:

“That on or about the seventeenth day of January, 2022 at Coopers Plains in the State of Queensland, [you] murdered Lachlan James Griffiths.”

3. [3]
   On 24 July 2024 you were arraigned and pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea of guilty to manslaughter in discharge of the count on the Indictment. The allocutus was administered and you were convicted of manslaughter.
4. [4]
   The sentence was adjourned to 28 October 2024 and on that date submissions were made by the Crown and on your behalf.
5. [5]
   The maximum sentence for manslaughter is life imprisonment.
6. [6]
   Your plea of guilty to manslaughter is a mitigating factor to be taken into account by the Court in arriving at the appropriate sentence. This reflects a level of cooperation with the criminal justice system as it avoided the need for a trial.  In particular, your guilty plea avoided the family of Mr Griffiths having to sit through a lengthy trial, which was originally listed for three weeks.
7. [7]
   There is some dispute about how to classify your guilty plea.
8. [8]
   The Crown contends that your plea of guilty comes at a late stage and this reflects against you.  The Crown submits that it sought to engage in negotiations from a time many months prior to your committal hearing.
9. [9]
   The timeline is as follows:

   1. On 14 February 2022 you were arrested for murder but were not charged and you were released.
   2. On 5 April 2022, you were arrested for murder.  You made some admissions but continued to seek to distance yourself from involvement. You were charged and remanded in custody.
   3. By August 2022, the majority of the brief of evidence was disclosed.  Further material was disclosed in 2023.
   4. By 11 April 2023 you were to advise the Crown who you wished to cross-examine at the committal hearing. On 26 July 2023 a reply was provided on your behalf to cross-examine one police officer.
   5. On 13 September 2023, the Crown agreed to either lead evidence or allow cross-examination of 10 witnesses (as a result of your reply and the replies of your co-accused).
   6. The committal hearing was listed for four days in November 2023 but only half the time was needed. You and three other defendants were committed for trial.^[1]
   7. On 22 February 2024, the Indictment was presented in the Supreme Court and in April 2024 the trial in respect of you and the remaining two other defendants was listed.^[2]
   8. On 4 July 2024, the Crown was advised that you had provided instructions to send a submission to plead guilty to manslaughter.
   9. On 13 July 2024, the submission was received and on 21 July 2024 the submission was accepted.
   10. On 24 July 2024 you were arraigned and pleaded guilty to manslaughter.
10. [10]
    It is submitted on your behalf that your guilty plea has demonstrated a willingness to facilitate the course of justice and the guilty plea should be treated as timely.  This is on the basis that once the parties engaged in fruitful negotiations, a factual basis was reached and the plea to the natural alterative charge was accepted.
11. [11]
    It is also submitted that your plea of guilty is indicative of remorse and is supported by the pre-sentence report and references.  You also gave a statement to the Court at the commencement of the sentence hearing in which you expressed remorse and regret in relation to the offending.
12. [12]
    On 12 May 2024 I conducted a review of the matter as the trial had been allocated to me to commence on 28 October 2024 for three weeks.  At that time the Crown had not provided particulars.  The Crown was directed to provide particulars by 30 May 2024.
13. [13]
    The Crown did provide particulars of the charges^[3] which outlined the Crown’s case against you on the basis that you were criminally liable pursuant to s 7(1)(a), s 7(1)(b) and (c) and s 8 of the Criminal Code 1899 (Qld) (Criminal Code).
14. [14]
    While a “Statement of Allegations” had been provided^[4] the provision of the particulars of the charges clearly identified the basis upon which the Crown was putting the case against you.
15. [15]
    On the basis that at the earliest opportunity after the particulars of the charges were provided, you provided instructions for a submission to the Crown, I accept this as a timely plea of guilty.
16. [16]
    Accordingly, I take into account that timely plea of guilty in the sentence being imposed today.

Criminal responsibility for manslaughter

17. [17]
    At the outset it is important to understand what you are being sentenced for today.
18. [18]
    Section 291 of the Criminal Code states:

“It is unlawful to kill any person unless such killing is authorised or justified or excused by law.”

19. [19]
    Section 300 of the Criminal Code states: 

“Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.”

20. [20]
    Section 302 of the Criminal Code relevantly states:

1. “(1)
   Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—

1. (a)
   if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do the person killed or to some other person grievous bodily harm;

…

is guilty of murder.

…”

21. [21]
    Section 303 of the Criminal Code provides:

1. “(1)
   A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.”

22. [22]
    Under the criminal law in Queensland, criminal responsibility is extended:

    1. under s 7 of the Criminal Code to any person who is a party to the offence; and/or
    2. under s 8 of the Criminal Code to where two or more people form a common intention to prosecute an unlawful purpose and in the prosecution of that purpose an offence is committed of a nature that its commission was a probable consequence of the prosecution of the purpose.

23. [23]
    Whilst the Crown originally particularised liability under s 7(1)(a) and s 7(1)(b) and (c)^[5] and s 8 of the Criminal Code, the sentence proceeds on the agreed basis of s 8 of the Criminal Code only.
24. [24]
    The deceased, Mr Griffiths, was assaulted at 298 Musgrave Road, Coopers Plains in the early hours of 17 January 2022. The assault included delivering a series of blows and Mr Griffiths died as a result of injuries inflicted upon him during that assault. Mr Griffiths’ remains have not been located by police.
25. [25]
    G was the principal offender who murdered Mr Griffiths.^[6] The motive for the violent assault was retaliation for a suspected allegation that Mr Griffiths had indecently dealt with [D]. G’s motive was known to co-offenders including you.
26. [26]
    The sentence proceeds on the basis that G was the principal offender and you were a party to the unlawful killing under s 8 of the Criminal Code as you and G had a common unlawful purpose of doing serious physical harm to the deceased.
27. [27]
    Your role was not that of the actual perpetrator who physically caused the death of Mr Griffiths.  You are not to be sentenced for participating in any actual violence on Mr Griffiths.
28. [28]
    The common unlawful purpose is outlined in considerable detail in the Agreed Statement of Facts, which will be considered further later in these sentencing remarks.
29. [29]
    Put simply, the plan was to cause Mr Griffiths serious physical harm in order to elicit information from him.  The sentence proceeds on the basis that the interrogation foreseen by you involved using violence to explore G’s suspicions but falling short of intending grievous bodily harm or death.
30. [30]
    You were aware that G was in fact inflicting serious physical harm upon Mr Griffiths.  Further, it was a probable consequence of the plan between you and G, and possibly others, to cause Mr Griffiths serious harm, that Mr Griffiths would be unlawfully killed.
31. [31]
    In the interrogation which evolved in the early hours of the morning of 17 January 2022, G did an act or acts which caused the death of Mr Griffiths.
32. [32]
    The sentence proceeds on the basis that G’s intention to kill Mr Griffiths or cause him grievous bodily harm, was not a probable consequence of the common unlawful purpose. 
33. [33]
    That is the basis upon which you are guilty of manslaughter and not murder, and you are to be sentenced on that basis.

Agreed Statement of Facts

34. [34]
    The circumstances of the offending are set out in the detailed Agreed Statement of Facts.  The facts set out in the Agreed Statement of Facts form the basis of the sentence to be imposed. 
35. [35]
    I will not repeat the 11 pages but will provide a summary of the relevant facts.
36. [36]
    The facts in the Agreed Statement of Facts fall into three parts:

    1. leading up to 17 January 2022;
    2. on 16 and 17 January 2022; and
    3. post-17 January 2022.
37. [37]
    Many of these facts come from the extensive police investigation, including CCTV footage from various sources and mobile telephone data.
38. [38]
    On 7 January 2022 G was released on parole. On 13 January 2022 G failed to report to the Wynnum Probation and Parole office on the basis that [D] had told him about things that had been done to her. G followed up with police and the hospital.
39. [39]
    On or about 14 January 2022, G disclosed to you, Tan and Matthew Bionda (Bionda), that [D] had disclosed being molested and he suspected that the perpetrator was Mr Griffiths.
40. [40]
    After that disclosure, you sent a message to an associate about bad news you had received about [D]. You concluded that “there is some putrid scum out there”.
41. [41]
    You volunteered that you knew Mr Griffiths from your time together in prison and that he sold drugs.
42. [42]
    You, Tan and Bionda consoled G and drove him home. The consolation included Bionda expressing a view that “grubs like that don’t deserve to live”. Tan agreed. G posed the hypothetical question of “who would miss a junkie”.
43. [43]
    It was at this stage, and at G’s behest, that you began contacting Mr Griffiths seeking to meet up and purchase dangerous drugs.
44. [44]
    Prior to 17 January 2022, you and Bionda arranged to meet with Mr Griffiths at the Transcontinental Hotel and Mr Griffiths supplied you with approximately a gram of heroin for $700.
45. [45]
    G was told of this successful interaction with Mr Griffiths.
46. [46]
    During the day on 16 January 2022, G began contacting Mr Griffiths via Facebook Messenger under the pretext of purchasing gamma-hydroxybutyrate.
47. [47]
    On 16 January 2022, G and [D] again spoke with police and attended a hospital after [D] disclosed being sexually abused.
48. [48]
    In the period leading up to 17 January 2022:

    1. You were aware that G suspected that [D] had been molested by Mr Griffiths and you engaged with G in a common unlawful purpose of causing Mr Griffiths serious physical harm in order to elicit information.
    2. At the request of G, on 14 January 2022 you made arrangements to purchase drugs from Mr Griffiths near where he was staying at the Meriton Suites on Herschel Street.
    3. This transaction proceeded and demonstrated that Mr Griffiths responded to messages from you, and he would meet with you in relation to the supply of drugs.
    4. The common unlawful purpose developed as a plan that you would take a van from premises linked to Tan, get Mr Griffiths into the van and transport him to 298 Musgrave Road, Coopers Plains so that Mr Griffiths could be interrogated with the use of force.
49. [49]
    Later in the evening on 16 January 2022, you returned to the Musgrave Road premises to undertake some work. On arrival, you discussed Mr Griffiths with Tan including enquiring with Tan whether G wanted you to get some drugs off the deceased. A short time later Tan confirmed and provided you with a white van and instructed you to collect G from an address in Manly. Tan remained at the premises.
50. [50]
    In execution of the plan, you travelled to the address in Manly and collected G and commenced the journey into the Brisbane CBD. During that journey, you and G discussed Mr Griffiths’ alleged molestation of [D].
51. [51]
    On the evening of 16 January 2022 and into the early hours of 17 January 2022 you and G continued to message Mr Griffiths.  There are also relevant messages between Tan and G on 16 January 2022 and 17 January 2022, prior to the deceased’s death.
52. [52]
    On 16 and 17 January 2022, the common unlawful purpose was further executed, including as follows:

    1. You made contact with Mr Griffiths and arranged to meet.
    2. Mr Griffiths left his hotel room in the early hours of 17 January 2022 and went downstairs to meet you. Mr Griffiths was not aware that G was also with you.
    3. With your knowledge, G got Mr Griffiths to go with you to 298 Musgrave Road, Coopers Plains under the pretext of not having funds to pay for drugs which were to be purchased from Mr Griffiths.
    4. You drove Mr Griffiths and G back to 298 Musgrave Road, Coopers Plains so that the plan could be executed for G to interrogate and inflict serious harm on Mr Griffiths.
53. [53]
    You became aware that G had recruited another person to assist him, and you observed the arrival of Giorgi. Giorgi was at or around the Musgrave Road premises for less than 47 minutes and was inside for less. Giorgi left no later than 3.40am and at that point in time Mr Griffiths was still alive.
54. [54]
    For a period after 3.03am on 17 January 2022, G and others were in the large meeting room at the Musgrave Road premises with Mr Griffiths. G interrogated Mr Griffiths and inflicted violence on him over a period of time.
55. [55]
    Mr Hoa Chanh (Chanh), who was at the Musgrave Road premises overnight on 16 to 17 January 2022, did observe part of the violent attack upon Mr Griffiths.  Chanh was asleep in an upstairs bedroom and woke to the sound of “loud banging, a scream and voices coming from downstairs”.
56. [56]
    Chanh went downstairs into the large meeting room and observed G assaulting Mr Griffiths, particularly directing the assault to Mr Griffiths face and upper body.
57. [57]
    Chanh left the premises as he was distressed by the sound of the continued assault. Chanh drove a short distance down the road and returned at approximately 6.30am on 17 January 2022.  At that time other workers were present and G was no longer wearing clothing with blood on it (which Chanh had observed earlier).
58. [58]
    You were at the Musgrave Road premises until approximately 7am on 17 January 2022.
59. [59]
    There is no evidence that you were in the room at the time Mr Griffiths was unlawfully killed, nor that you were involved in any other violence yourself. But you were aware that G was inflicting serious physical harm upon Mr Griffiths.
60. [60]
    Mr Griffiths was dead before you left the Musgrave Road premises but there is no evidence to prove you saw Mr Griffiths’ body.
61. [61]
    G continued to clean up after the homicide following you leaving the Musgrave Road premises.
62. [62]
    The police investigation also carried out forensic analysis of the Musgrave Road premises. Relevantly, the presence of multiple blood and DNA samples belonging to Mr Griffiths consistent with the infliction of blood-letting injuries were in the downstairs meeting room at the Musgrave Road premises.
63. [63]
    This forensic evidence also tends to suggest that Tan and another assisted in the cleaning up of the crime scene.
64. [64]
    The facts also include images of Mr Griffiths’ wrapped remains which were located during a download of Tan’s Google Pixel mobile phone.
65. [65]
    In the period after 17 January 2022, there is relevant post offence conduct including your conduct.
66. [66]
    Both you and G repeatedly pretended to contact Mr Griffiths in an effort to minimise suspicion of your involvement or any foul play.
67. [67]
    In particular, on 19, 20 and 21 January 2022 there are Facebook Messenger messages from you to Mr Griffiths.

    1. On 19 January 2022, you messaged Mr Griffiths with a complaint about what had been supplied to you. There is a further follow up message later the same day and then a subsequent telephone call that was not answered.
    2. On 20 January 2022 you again messaged Mr Griffiths asking for him to call you.
    3. There is a further follow up message on 21 January 2022.
    4. Similarly, on 28 January 2022 you sent a message following up Mr Griffiths as you said you had not heard from him for a while. This is again followed up by a further telephone call on 29 January 2022.
68. [68]
    As part of the police investigation, police became aware that Mr Griffiths had been in a relationship with G’s ex-partner until late December 2021 when she was admitted to a live-in drug rehabilitation facility. They also became aware that G and Mr Griffiths had been in contact on 16 January 2022.
69. [69]
    On 3 February 2022 police attended G’s residence in relation to the missing person investigation and G advised police of various matters including that he knew Mr Griffiths, as they had met through his ex-partner, and that sometimes the deceased would travel north as he had a car near Bundaberg. G also mentioned a missed call from the deceased’s Facebook profile on 2 February 2022.
70. [70]
    G alerted one or more of his co-offenders of the police investigation prior to their arrests. As an example, Giorgi was advised that the police had G’s phone containing his contact list.
71. [71]
    Prior to being charged with Mr Griffiths’ murder, G had provided his Probation and Parole worker with a copy of the search warrant for his residence. G told his Probation and Parole worker that Mr Griffiths was “the one who did those things to [D]”.
72. [72]
    Further, G provided inconsistent information about how long he had known Mr Griffiths, why he believed Mr Griffiths was the person who had molested [D] and their last contact. He also became aggressive towards staff and refused to speak further. G stated that he became aware of the person nominated by [D] as “Lachie” on 12 February 2022. However, this information was actually volunteered to police by [D] on or about 17 January 2022.
73. [73]
    On 14 February 2022, the police executed a search warrant at your residence. You attempted to flee and were arrested and put under caution.
74. [74]
    On that occasion, you provided some information including denying knowledge that G wanted to fight and/or kill Mr Griffiths and denying knowledge of G’s motive to harm Mr Griffiths, notwithstanding the text messages on your phone.
75. [75]
    Further, you lied to police stating that you heard G and Mr Griffiths leaving together about 15 or 20 minutes after they had arrived at the Musgrave Road premises. You did place Tan at the scene, however not in the room with G or Mr Griffiths.
76. [76]
    Police confronted you with other evidence and your evidence changed including:

    1. That when you left the premises on 17 January 2022, you could hear Mr Griffiths and G fighting.
    2. Mr Griffiths was alive when you left the premises, but you had seen that his shirt was ripped, and he had red marks on his face.
    3. You had left the Musgrave Road premises at 3:00 or 4:00 am and Mr Griffiths and G were still there.
    4. The last time you had directly observed Mr Griffiths was within an hour of your arrival on the premises.
    5. Most of the conversations between G and Mr Griffiths that you heard were laughing and joking.
77. [77]
    On 5 April 2022 you spoke to police again and disclosed further information. This information included:

    1. At one point during the events of 17 January 2022 you walked past the conference room door and observed Mr Griffiths laying on the ground. You only saw Mr Griffiths’ torso past the furniture in the room. Mr Griffiths appeared conscious, was still moving but had blood on his face and was moaning in pain.
    2. When G came out of the room, he had blood all over his shirt, pants, hands, arms and face. You observed blood splattered on the walls and fled the premises on your motorcycle.
    3. You heard G play to Mr Griffiths a recording of [D] speaking on his phone and questioning Mr Griffiths about [D], in between assaulting Mr Griffiths.
    4. After Giorgi arrived, the assault on Mr Griffiths continued. After about half an hour or so, you could not hear anything further and walked past and observed Mr Griffiths laying on the ground.
    5. When you first engaged with Mr Griffiths via Facebook Messenger about purchasing dangerous drugs, you were testing whether Mr Griffiths would meet you at the behest of others, including G.
    6. You were friends with both Mr Griffiths and G and you wanted to help G “get to the bottom of it” but denied setting Mr Griffiths up to be murdered.
    7. You knew that G was upset and wanted to know what had happened to [D].
    8. As you were leaving the Musgrave Road premises on the morning of 17 January 2022, you observed G had showered, was burning property in a metal drum and was wearing fresh clothing.
78. [78]
    It is an agreed fact that your lies about the movements on 16 and 17 January 2022 and the knowledge of the allegation that Mr Griffiths had molested [D], are evidence of your consciousness of guilt.

Antecedents and other sentencing considerations

79. [79]
    You were 27 years of age at the time of the offending and are presently aged 30.
80. [80]
    You have a relevant and lengthy prior criminal history in Queensland and have previously spent time in custody.
81. [81]
    There are eight convictions that are particularly relevant to the sentence.
82. [82]
    You were dealt with by the Brisbane District Court on 25 May 2012, when you were sentenced by Judge Richards to probation and community service. You breached the probation order by reoffending but were not returned to the District Court.
83. [83]
    The offending on that occasion included you with another, breaking into a car at a railway station and stealing a knife and spray paint. You and the other offender entered the railway station and were abusive towards staff. The complainant asked you to leave and then you approached the complainant on the platform and asked if he had any money. After the complainant said he did not, you produced the stolen knife and asked him if he was sure he did not have any money. The complainant repeated that he did not have any money and walked backwards. You pointed the knife and walked towards the complainant. After a short period, you and the other offender ran away, and the complainant called the police.
84. [84]
    You were later dealt with by the Brisbane Magistrates Court on 5 February 2014 where you were sentenced to further probation. This offending occurred while you were on probation and included a breach of a Domestic Violence Protection Order on 14 September 2013. On that occasion, you punched the aggrieved in her face and caused her to fall to the ground and bleed from her mouth. The aggrieved suffered a split lower gum and two loose teeth.
85. [85]
    Further, you were dealt with by the Brisbane Magistrates Court on 2 July 2019 when the Magistrate sentenced you for 18 offences. This included seven breaches of a protection order, two charges of common assault and assault occasioning bodily harm.^[7]
86. [86]
    The Magistrate imposed a head sentence of 18 months imprisonment and released you on parole after serving less than six months in custody. The sentence was due to expire in September 2020.
87. [87]
    In January 2020 your parole was suspended due to non-compliance, and you were unlawfully at large for about four months and were returned to custody on 27 May 2020.
88. [88]
    You were again dealt with by the Brisbane Magistrates Court on 17 November 2020 when you were sentenced for eight further offences. These offences were committed while you were unlawfully at large, and you also breached the community service order imposed in 2019. Ultimately the time that you had spent in custody due to your parole suspension was taken into account and the Magistrate wholly suspended terms of imprisonment of up to 12 months.
89. [89]
    Relevantly, the operational period of the suspended terms of imprisonment expired on 16 May 2022. Accordingly, the current offending occurred during the operational period of the suspended terms of imprisonment. The Crown submits that this is a serious aggravating feature. The terms of imprisonment have already been activated.
90. [90]
    You were before the Brisbane Magistrates Court on 21 November 2022 when the Magistrate sentenced you for eight offences. These offences were committed during the operational period of the suspended terms of imprisonment imposed in 2020. Further, the Magistrate activated the suspended terms of imprisonment cumulatively.
91. [91]
    A total period of imprisonment of 15 months was imposed, the time you were in custody from 5 April 2022 to 20 November 2022 was declared as time already served, and a parole release date was set as the sentence date. The full-time expiry date of that period of imprisonment was 4 July 2023.
92. [92]
    The time dealt with in that sentence overlaps with the time you have spent on remand for the charge of murder which has resulted in the conviction for manslaughter. When the time was declared, it was not brought to the Magistrate’s attention that you were also on remand for murder. It is submitted that it would not be appropriate for this time to be declared again.
93. [93]
    You were also dealt with by the Brisbane Magistrates Court on 8 December 2023. On that occasion, you were dealt with for four further offences, including stealing a mobile phone from JB Hi-Fi valued at $1200 in April 2021. A warrant for your arrest was issued in relation to that charge on 18 November 2021 and you were not arrested and granted watchhouse bail until 14 February 2022.
94. [94]
    Accordingly, you were unlawfully at large when the common unlawful purpose was carried out and Mr Griffith’s death occurred.
95. [95]
    On 8 December 2023, the Magistrate took into account the 612 days you had spent in custody, including the 230 days which had already been declared and imposed no other penalty.
96. [96]
    Relevantly, the four offences dealt with on that occasion also occurred within the operational period of the suspended terms of imprisonment imposed in 2020.
97. [97]
    The Crown submits that you are a mature aged man with a relevant criminal history.
98. [98]
    Further the offending occurred during the operational period of suspended sentences and while you were unlawfully at large for an outstanding charge. It is submitted that both of these matters are aggravating features.
99. [99]
    Ultimately, the Crown’s submission is that you should be sentenced to a term of imprisonment in the range of 10 to 11 years and that the mandatory serious violent offence declaration would operate to require you to serve at least 80% of the sentence.
100. [100]
     The Crown relies on some particular factual matters to support this submission, including:

     1. Your motivation was senseless and totally unprovoked.
     2. In regard to the speculation regarding [D], you should have counselled G to deal with the authorities rather than setting about to track down Mr Griffiths.
     3. Your actions after Mr Griffiths’ death of feigning contact with Mr Griffiths was particularly callous.
101. [101]
     The Crown also relies upon the victim impact statements that were tendered, the impact statement from Mr Griffiths’ mother that was delivered in Court and the statement of Mr Griffiths’ daughter that was read out by the Prosecutor.  The Crown submits that the impact of the offending is catastrophic and lifelong.
102. [102]
     The victim impact statements show the devasting impact that your offending has had on Mr Griffiths’ family.
103. [103]
     The Crown acknowledges that sentences in cases of manslaughter reflect a wide range of circumstances in which the offence can be committed. Chief Justice Kiefel and Justice Nettle in Pickering v The Queen^[8]commented as follows:

“[M]anslaughter is an offence that may be committed in an infinite variety of circumstance, ranging from what for all intents and purposes is tantamount to murder down to something which, when viewed objectively, is no more heinous than a moment's inattention to a task in hand. For that reason, it is notorious that manslaughter attracts a wider range of sentences than any other crime.”

104. [104]
     Further, the Crown relies on the statement of Pincus JA in R v Amituanai^[9] as follows:

“It is the extent of that damage which is the principal justification for the sentence imposed below. One could perhaps defend a legal system in which the particular consequences for the victim of such a blow are treated as of little significance and the court is required to focus solely on the circumstances of the blow itself. But that is not our system; for reasons which are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender.”

105. [105]
     The wider sentencing principles in s 9(3) of the Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act) apply in this case. The Crown recognises that your plea of guilty should reduce your head sentence.
106. [106]
     At the time of the sentencing hearing you had spent time in pre-sentence custody between 5 April 2022 and 28 October 2024, being a total of 938 days. However, the period of 230 days from 5 April 2022 to 20 November 2022 was declared in relation to the sentence imposed in the Magistrate’s Court on 21 November 2022.
107. [107]
     Accordingly, the Crown accepts that the time in the period from 21 November 2022 to 10 November 2024 being a total of 721 days should be declared as time served under the sentence being imposed today.^[10]
108. [108]
     In relation to comparable authorities, the Crown submits that there is no Court of Appeal decision which captures the set of circumstances that this case does.  It is submitted that most of the cases can be factually distinguished.
109. [109]
     In particular, it is submitted that cases involving a common unlawful purpose to commit armed robbery are different to the present case.  That is, armed robbery involves threats to achieve the desired result of stealing.  This is in stark contrast to the current case where it is submitted the common unlawful purpose was luring another person to a location, far from their own safety, with a goal of committing violence and harm.
110. [110]
     More generally, the Crown referred me to a number of comparative cases including R v Jervis,^[11]  R v Wales,^[12] R v Kirke,^[13] R v Granz-Glenn^[14] and more recently R v LZY & Porter.^[15] 
111. [111]
     R v Jervis is relied upon in relation to criminal liability for those who are not principal offenders to an unlawful killing. In that case, Jervis was convicted of manslaughter by a jury in circumstances where there was a plan pursuant to which Jervis provided a knife to a third party, who provided that knife to the murderer.  Jervis was some distance away while the killing took place.
112. [112]
     At the trial, Jervis was acquitted of murder but convicted of manslaughter.  The Court of Criminal Appeal reduced the sentence of 18 years’ imprisonment to one of effectively 13 years and four months’ imprisonment.  Jervis was 24 at the time of the appeal and had no prior criminal convictions.
113. [113]
     The Crown submits that this sentence is indicative of the sentencing range if you had been convicted of manslaughter and acquitted of murder at trial.  However, that case did not involve consideration of the effect of a serious violent offence declaration, which is discussed further later in these sentencing remarks.
114. [114]
     The case of R v Wales involved a sentence of nine years’ imprisonment for manslaughter where the Court of Appeal set aside a serious violent offence declaration.  Parity was a consideration in reducing the sentence, the defendant was 29 at the time of the offending and had a criminal history.  The circumstances of that case involved offenders robbing their drug dealer.
115. [115]
     R v Kirke involved a sentence of nine years’ imprisonment for one count of manslaughter with a non-parole period of five and a half years.  The circumstances involved the defendant being a getaway driver at a home invasion who killed a “rescuer” with his car.  At the time, this was a sentence imposed on a 17 year old for manslaughter as an adult.
116. [116]
     Reliance is also placed on the decision of R v Granz-Glenn which involved a term of imprisonment of nine years’ imprisonment for manslaughter, with no parole date set.  The common plan was to rob the victim and her partner by entering the shipping container in which they lived and stealing property.  There was a plea of guilty and co-operation.  The defendant’s sentence was distinguished from a co-offender on the basis of the level of co-operation.
117. [117]
     R v LZY & Porter is a recent example of a term of imprisonment of nine and a half years with a non-parole period of six and a half years (being approximately 68.4 per cent).  The sentence was in relation to manslaughter and three other related offences.  The defendant, Porter, was liable under s 8 in relation to a common unlawful purpose of committing an armed robbery in company. The Crown submits that the case can be distinguished on the basis that the defendant was 18 years of age with no criminal history, co-operated extensively with police and entered an early plea of guilty.
118. [118]
     It is in the context of these authorities that the Crown submits that a sentence of nine years’ imprisonment with an early parole eligibility date would be inadequate in all the circumstances.
119. [119]
     Accordingly, the Crown contends that a sentence of 10 and a half years’ imprisonment with a serious violent offence declaration with presentence custody declared would be appropriate.
120. [120]
     Submissions were made on your behalf by your Counsel. 
121. [121]
     I have previously outlined your age, your criminal history and the time you have spent in custody.  Those matters are not contentious.
122. [122]
     You are the youngest of two brothers and you continue to have close family support as shown by your brother and mother being in Court for the sentence hearing and the tendered references.
123. [123]
     The references also indicate that you will have support upon your release from custody, including in respect of future employment.
124. [124]
     You have a 10 year old son and an eight year old daughter with whom you have contact. Your youngest child died in August 2023 whilst you were on remand.
125. [125]
     You completed year 10 and left school during year 11. You joined the workforce and have worked in various occupations including at Woolworths and in the labour and construction industry. You partially completed apprenticeships in painting and construction, and also worked as a trainee carpenter for a period.
126. [126]
     Until your period on remand, your longest period of unemployment was 12 months. Even then you managed to find work with your brother’s landscaping and handyman business.
127. [127]
     It is submitted that you are in good health and have become increasingly healthier during your period on remand due to the period of abstinence from illicit substances.
128. [128]
     You started using cannabis as a young teenager and at about the age of 21 started using methylamphetamine. Your use of methylamphetamine increased over time and at the time of the offending your daily use was about 1.75 grams.
129. [129]
     While on remand you have completed courses in drug intervention, being the Short Substance Intervention and the Moderate Intensity Substance Intervention programs. You are also on the opioid substitution program.
130. [130]
     Further, you instructed your Counsel that you have not used drugs during your time on remand.
131. [131]
     This supports an inference that you have taken steps towards rehabilitation and that you do have reasonable prospects of rehabilitation.  But, in respect of methylamphetamine in particular, rehabilitation will be a lifelong journey.
132. [132]
     A psychological pre-sentence report prepared by Dr Therese Ellis-Smith is also relied upon for the sentence.
133. [133]
     In particular, the following matters from that report are identified as particularly relevant:

     1. You have demonstrated remorse and regret being involved in the death of Mr Griffiths.  This is supported by the statement you made to the Court at the commencement of the sentence hearing.
     2. The assessments undertaken by Dr Ellis-Smith reveal that you face a number of problems, including:
        1. problems within the alienation domain, producing likely feelings of lack of support and unfair treatment by others thus maintaining distancing relationships.
        2. problems acting out, thus likely to act impulsively, sensation-seeking and reckless at times and to have demonstrated a distrust for authority.
        3. problems with being socially withdrawn, paranoia thinking, alcohol use and abuse and issues with anger management.
     3. You were also motivated to assist someone who was employing you and was seen as a friend.
134. [134]
     Further, Dr Ellis-Smith considers that your history of gravitating to antisocial peers, who likely influenced you to participate in criminal activity, substance use, and antisocial personality features of impulsivity and recklessness, are factors likely to have directly contributed to the offending.
135. [135]
     Dr Ellis-Smith also identifies protective factors that will assist in increased levels of resilience and that moderate risk factors, including motivation, substance abuse courses, family and employment. Further, it is recognised that engagement with mental health support and criminogenic programs would assist in reducing risks of future offending.
136. [136]
     During your time in custody you have kept yourself busy and productive. You have worked as the unit cleaner and baker. You also teach other inmates Auslan sign language while you yourself are learning it. You also teach inmates Indigenous painting techniques.
137. [137]
     Your Counsel has indicated that you are a gifted artist.  This may be something that you can focus on during your time in custody and possibly when you are released into the community.
138. [138]
     Whilst in custody you have completed a Certificate III in painting and décor, a white card and literacy and numeracy.
139. [139]
     Your plans upon release from custody are to return to live with your mother, to obtain employment and to keep the routine you have established whilst on remand. You have work opportunities with a brother or a friend.  You also desire to become a consistent part of your children’s lives.
140. [140]
     Ultimately your Counsel contends on your behalf that the appropriate head sentence is eight years imprisonment. In reaching this conclusion reliance is placed on the decisions of R v Welham & Martin,^[16] R v Wales^[17] and R v Granz-Glenn.^[18]
141. [141]
     Further, it is submitted that a longer period on parole would provide protection to the community for the risk of reoffending in the future. It is submitted that a sentence constructed in this way would reflect denunciation, general and specific deterrence and your rehabilitation.
142. [142]
     Your Counsel also argues that the particular circumstances of this case are such that the sentencing discretion should be exercised in favour of not making a serious violent offence declaration.
143. [143]
     Reference is made to the Court of Appeal decision in R v Free; Ex parte Attorney-General (Qld)^[19] where the Court of Appeal considered the principles relating to a serious violent offence declaration.
144. [144]
     The Court of Appeal found that in the exercise of the sentencing discretion, a Court should consider more broadly whether there are circumstances of the case which aggravate the offence in a way which suggest the protection of the public, or adequate punishment, require a longer period in actual custody before eligibility for parole would otherwise be required. Further, that the sentencing judge should not focus on a perceived need to find factors which take the case outside the norm of that type of offence.
145. [145]
     In particular, reliance is placed on the statement of the Court as follows:^[20]

“where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrative process, what the sentencing court is required to do is consider all relevant circumstances, including in a case such as this the matters in ss 9(1), 9(2) and, primarily, 9(6) of the Penalties and Sentences Act, to determine whether there are circumstances which aggravate the offence in a way which suggest that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”

146. [146]
     The following features are identified to support a sentence not involving a serious violent offence declaration:

     1. There is only one victim of the violence.
     2. Your role was to assist in bringing Mr Griffiths into a situation where you knew that there was going to be serious violence.
     3. You did not engage in any violence.
     4. You were not present when Mr Griffiths was killed.
     5. You did not see or do anything in relation to the body.
147. [147]
     Overall, your Counsel identifies the following features as indicating a sentence in the range of eight years:

     1. Your role in the offending.
     2. You were not present at the killing of Mr Griffiths.
     3. You took no active steps at the time of the killing.
     4. There is no evidence that you were aware that Mr Griffiths was killed.
     5. You pleaded guilty.
     6. You have shown genuine remorse.
     7. The steps taken by you towards rehabilitation.
148. [148]
     The Penalties and Sentences Act sets out the purposes for which I am to sentence you in s 9(1) as follows:

     1. To punish you to an extent or in a way that is just in all of the circumstances.
     2. To provide conditions that the Court considers will help you to be rehabilitated.
     3. To deter you or other persons from committing the same or a similar offence.
     4. To make it clear that the community, acting through the Court, denounces the sort of conduct in which you were involved.
     5. To protect the Queensland community.
149. [149]
     Further, s 9(2) and (3) of the Penalties and Sentences Act outline the matters that I must have regard to, and I do have regard to those matters in arriving at the sentence. 
150. [150]
     In the particular circumstances of this case, the acts done by you in the execution of the common unlawful purpose were not violent in themselves.  Rather they were done to facilitate the doing of violence by others, for the purpose of an interrogation by the use of force.
151. [151]
     This is not a case involving weapons.  There were no knives, guns or other weapons.  The violence used was physical violence.  From the forensic evidence at the Musgrave Road premises and other evidence, the physical violence must have been prolonged and extreme.
152. [152]
     While you did not throw the punches, and there is no evidence to place you in the room, there is evidence that you knew that the Mr Griffiths was being seriously assaulted and in pain.  There is further evidence that you were aware of this and did nothing to intervene or stop the so-called interrogation.
153. [153]
     A particularly concerning aspect of this case is that G had gone to the police with the allegation of sexual abuse of [D]. Rather than leaving it to those given the authority to investigate such matters, you, G and others decided to take matters into your own hands. This was the motive for the common unlawful purpose.
154. [154]
     However, the common unlawful purpose was nothing more than a carefully crafted and calculated plan to adopt a form of vigilante justice.  The plan circumvented the proper investigation of a complaint and resulted in the loss of a life.
155. [155]
     The plan was not ad hoc or spontaneous.  It appears to have been thought out and put in place over a period of time.  It involved various people and stages that all came together in the early hours of 17 January 2022.
156. [156]
     The plan also involved luring Mr Griffiths to a place where he was vulnerable and isolated.  What happened at that place was a probable consequence of the plan: it was a probable consequence of the plan to cause Mr Griffiths serious harm, that Mr Griffiths would be unlawfully killed.^[21]  The interrogation that transpired involved an act or acts by G that caused the death of Mr Griffiths.
157. [157]
     In the period immediately after Mr Griffiths death you showed no remorse.  You told lies and attempted to contact Mr Griffiths in what could only be seen as a calculated attempt to cover your tracks.  Over time those lies evolved and inconsistencies with other known facts started to emerge.
158. [158]
     In the statement you made to the Court you now have had time for reflection, and you stated that you are remorseful and regret the consequences of your actions. Further, you acknowledge the impact of your offending on Mr Griffiths’ family.  It is obvious from the victim impact statements that the lives of the deceased’s family have been changed forever by the events of 17 January 2022.
159. [159]
     It is also relevant that consistent with the assessment of Dr Ellis-Smith, your involvement also appears to stem from a misplaced sense of loyalty to a friend and employer. Whilst the prudent course would have been to allow an investigation to take its course, a plan was developed for an alternative path to find out whether there was any basis to the allegations, which included the infliction of serious violence.
160. [160]
     Given a number of factors identified by Dr Ellis-Smith and your statement, I consider you have the benefit of currently being remorseful and have some insight into your offending.  However, this does need to be tempered by your conduct showing a lack of remorse immediately after the offending.
161. [161]
     Another aggravating feature is that at the time of the offending you were unlawfully at large, and also the subject of the operating period of suspended terms of imprisonment.  This did not curb your involvement in the common unlawful purpose.
162. [162]
     This is a serious example of the offence of manslaughter as it involved a plan to inflict violence and use force as a means to an end, even though you were not the one to inflict it. The end was to obtain information about the alleged sexual assault of [D]. This is in contrast to a plan to commit another offence involving the threat of violence or in which violence might occur. Violence was always part of the plan here.
163. [163]
     The issue of parity arises in respect of the sentence to be imposed on Tan later today.
164. [164]
     Parity requires that like offending should be treated alike but where there are relevant differences, then due allowance should be made for the differences.^[22]  Generally, all other things being equal, persons who are parties to the same offence should receive the same sentence.^[23]
165. [165]
     Your culpability is less than that of Tan, who was present in the room at one point during the assault of Mr Griffiths, it was his van and his premises which were used, and he was also involved in cleaning up the crime scene.  Your criminal history is more serious than Tan’s as you were subject to the operational periods of suspended sentences and were unlawfully at large at the time of the offending.  However, your plea was timely, and you have demonstrated a greater level of remorse and insight.
166. [166]
     My task is to determine the appropriate sentence and to do so through an integrated process directed at the determination of a just sentence, taking into account all of the relevant circumstances and applying all of the appropriate sentencing principles.  The “instinctive synthesis” identified in Markarian v The Queen^[24] requires a single result to be formulated without breaking down the sentence into component parts.
167. [167]
     This task is particularly complicated where a sentence either mandatorily attracts a serious violent offence declaration or may attract such a declaration in the exercise of discretion.^[25]  Manslaughter is an offence in Schedule 1.
168. [168]
     The mandatory requirement to make a serious violent offence declaration arises where a sentence is imposed for a Schedule 1 offence of 10 years or more.   In such a sentence, allowance can only be made for all mitigating circumstances in setting the head sentence, as no allowance can be made to the parole eligibility date.   Such a consideration arises here.
169. [169]
     The Court of Appeal in R v Kirke^[26] considered the approach to sentencing around the 10 years mark as a result of the mandatory serious violent offence declaration.  Bond J (as his Honour then was), with whom Morrison JA and Callaghan J agreed, summarised the correct approach as follows:^[27]

1. “(a)
   An offender sentenced to a term of imprisonment is by force of law eligible for release on parole after serving 50% of the sentence, unless there is an order of the Court reducing or extending the time for eligibility: see s 184(2) of the Corrective Services Act 2006 and s 160C(5) of the Penalties and Sentences Act.
2. (b)
   Where a sentence of imprisonment is imposed for such an offence of 10 or more years, the Court is obliged by s 161B(1) of the Penalties and Sentences Act to declare that the offence is a serious violent offence, with the consequence that the offender must serve 80% of the sentence before becoming eligible for parole.
3. (c)
   Where a sentence of imprisonment is imposed for such an offence of more than 5 but less than 10 years, s 161B(3) of the Penalties and Sentences Act gives the Court a discretion to declare that the offence is a serious violent offence, with the consequence that the offender must serve 80% of the sentence before becoming eligible for parole.  The considerations relevant to the exercise of that discretion were identified in R v McDougall & Collas [2007] 2 Qd R 87 at [19].
4. (d)
   If a declaration is made then it is made as a component of the sentence, and the fact that the consequence of the declaration is that the offender serves 80% of the sentence is taken into account in setting the appropriate sentence:  see R v McDougall & Collas at [17] and R v Smith [2019] QCA 33.
5. (e)
   The law recognises that the difference in the impact of the sentence imposed just below the arbitrary line of 10 years, and a sentence marginally above, is disproportionately great when having regard to time spent under sentence before being eligible for parole:  see R v Randall [2019] QCA 25 at [31] and [33].
6. (f)
   While in other cases a plea of guilty and other mitigating factors may be reflected in a recommendation for early release on parole, that option is not available where the sentence for a serious violent offence is 10 years or more.  In those circumstances, any mitigating factors must be reflected by a suitable reduction of the head sentence:  see R v Carlisle [2017] QCA 258.”

170. [170]
     The Court of Appeal decision in R v Free; Ex-parte Attorney-General (Qld)^[28] followed the decision in R v McDougall & Collas, holding that the discretion to make a serious violent offence declaration is but one of the many factors considered in the integrated process of arriving at a just sentence.  Accordingly, a declaration may be made where “… adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required”.^[29]
171. [171]
     All of these considerations are to be dealt with in the single step sentencing process.
172. [172]
     I have been referred to comparative authorities involving manslaughter in a variety of circumstances. These provide some assistance in reaching the view that but for the mitigating circumstances the sentence would be at least 10 years.
173. [173]
     I have formed a view as to the appropriate sentence by undertaking the required “instinctive synthesis”, including by:

     1. taking into account all of the circumstances of the current offending, including the mitigating features and the basis of your criminal liability;
     2. taking into account the matters pursuant to s 9 of the Penalties and Sentences Act; and
     3. considering:
        1. the total time you have spent in custody, including the time previously declared and the time to be declared as time served under this sentence; and
        2. the impact of the parole eligibility date, any consequences of the statutory provisions in respect of a serious violent offence declaration in arriving at a just sentence and whether adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required.
174. [174]
     I have not taken into account that Mr Griffiths’ body has not be located as part of considering the parole eligibility date.  That is to be left to be considered by the Parole Board at the appropriate time.^[30]
175. [175]
     As part of the single step process, applying the approach identified in R v McDougall & Collas and taking into account the relevant considerations including your criminal history and that the offending occurred whilst you were unlawfully at large and subject to the operating period of suspended terms of imprisonment, I consider it is necessary for you to serve a longer period in actual custody before eligibility for parole but it is not necessary for you to serve 80 per cent of your sentence. I consider a parole eligibility date at approximately 66 per cent of the sentence is just in all of the circumstances. 
176. [176]
     This approach is also consistent with the principle recognised by the High Court in Power v The Queen^[31] that the head sentence and the setting of a non-parole period are factors which together make the sentence a just one.^[32]
177. [177]
     Accordingly:

1. 1. In relation to the count of manslaughter, I sentence you to nine years’ imprisonment.
2. 2. I order that you be eligible for parole on 21 November 2028.
3. 3. I order that the period of pre-sentence custody, from 21 November 2022 to 10 November 2024, being a period of 721 days be declared as time served on the sentence.
4. 4. A conviction is recorded.