DPP v Asling

3 The prosecution case, that the jury accepted, was that the murder took place in the context of ongoing violent conflict in the criminal underworld in Melbourne at that time. The killing of Graham Kinniburgh was procured by the criminal Carl Williams, due to his searing hatred of the family of Lewis Moran and those associated with them. Williams, with his right hand man, known as witness A, arranged for you and Blewitt to carry out the murder with firearms provided by Williams. It was agreed that the contract price would be $150,000, part of which was paid in advance, and another part of which was paid after the murder was carried out.

4 In the period leading up to the murder, Blewitt and you were close friends and associates of each other, and of the witness, known as witness P. The three of you had been jointly involved in the planning and commission of a number of crimes together, including burglaries, robberies and drug trafficking. During that time witness A was also a friend and associate of you. He introduced you and Blewitt to Williams in the middle of 2003, with the initial meeting taking place in Little Collins Street, Melbourne.

5 A number of subsequent meetings took place involving yourself, Blewitt, witness A and Williams at the Sugar Gum Hotel in Sydenham. During those meetings, it was initially arranged that you and Blewitt would kill Lewis Moran for the agreed contract sum. After the meeting at which that arrangement was made, Williams, through witness A, provided to you and Blewitt two handguns, together with some cash and drugs as a down payment on the contract price. However, in subsequent meetings, Blewitt and you prevaricated about killing Moran. Williams became frustrated, and told you that if you could not kill Moran, you should kill Graham Kinniburgh instead. At that time, Kinniburgh was an associate of Lewis Moran, and he had also been a friend and associate of Moran's son Jason, who had been killed in June 2003 in the context of the same underworld conflict.

6 In preparation for the killing of Graham Kinniburgh, you, with the assistance of witness P, stole a blue Ford sedan vehicle in Middle Park. It was not suggested by either side that witness P had been involved in any way in the planning for the killing of Kinniburgh.

7 On 12 December 2003, Graham Kinniburgh left his home in Kew, and travelled to Port Melbourne to carry out some Christmas shopping. Later in the day, he went to Caulfield, where he had dinner with a group of friends. When he drove home at about midnight, he parked in the street. As I have stated, Blewitt and you were waiting in ambush for him. As Kinniburgh alighted from his vehicle, he was fired upon by one or both of you. Kinniburgh immediately fled running north up the street. He fired a shot from the .45 colt revolver that he kept on him for his own protection, but the bullet went astray. Further shots were then fired at him, and he was felled some fifteen metres from his vehicle.

8 As a result of the attack, Kinniburgh died almost instantly at the scene. The subsequent post-mortem revealed that he had sustained a bullet wound to the back of the skull, which was fatal. In addition, he suffered a second wound to his shoulder. As a result of the trajectory of that wound, he sustained significant internal injuries which, according to the pathologist, would also have been rapidly fatal. There was a third gunshot wound in the back of the right thigh, which, also because of its trajectory, resulted in substantial internal injury.

9 After Blewitt and you had killed Kinniburgh, you both escaped in a motor vehicle. You made your way to a nearby laneway, where you burnt the blue Ford vehicle that you had earlier stolen with witness P. I interpolate that it is not entirely clear what role was played by that vehicle in the killing. You then both departed the area. On the next morning, you called in on your friend, witness P, at his home, where you and Blewitt both watched the television news with interest.

10 According to witness P, in the ensuing weeks, both you and Blewitt described to him how you had both lain in ambush for Kinniburgh, and had attacked him as he left his vehicle. There were sound grounds for having some reservations about the credibility and reliability of witness P as a witness. Nevertheless, and consistent with the verdict of the jury, I am satisfied that you both did confide in witness P the role that you had played in the killing of Kinniburgh.

11 Thereafter, you escaped detection for the crime for a period of 12 years. During that time, in 2006, witness A had made a statement as to your role in the planning and preparation of the killing. Witness A made that statement to the police in the course of giving a significant amount of information to the authorities about a number of serious crimes that had been committed in the context of the underworld conflict. He made statements about those matters, including the killing of Graham Kinniburgh, with the intention of having his cooperation with the authorities taken into account as a mitigating circumstance when he was to be sentenced for three murders, to which he intended to plead guilty.

12 Witness P did not tell the authorities of the confessions that you and Blewitt had made to him until 2015. He did so when he was faced with prosecution for a serious aggravated burglary that he had been involved in in Mulwala in New South Wales, and also with being dealt with for contempt of the Australian Crime Commission. It was not until after witness P provided that information to the authorities that you were arrested in November 2015. You have been in custody since.

13 You have been convicted of the most serious crime in our legal system, the murder of another human being. The maximum sentence for that crime is life imprisonment. There were a number of aggravating circumstances attached to your offending. The murder of Graham Kinniburgh by Blewitt and yourself was planned and premeditated over a period of about four months. Graham Kinniburgh gave you no cause or reason to have any grievance against him, let alone to kill him. Rather, you and Blewitt killed him for the most base of human motives, namely, for reward. The amoral nature of the killing is highlighted by the almost casual manner in which the decision was made to substitute Kinniburgh for Lewis Moran as the target of the killing. The concept of contract killing is utterly abhorrent to the fundamental values of a civilised and decent society. Further, at the time of the offence, you were on parole for particularly serious crimes, including three armed robberies, which had been committed in circumstances that I shall shortly describe.

14 The murder of Graham Kinniburgh was carried out in a cold blooded and heartless manner by you and Blewitt, in a suburban street outside his home in which his wife and son were present. At the time that you both attacked him with loaded weapons, Kinniburgh was totally vulnerable, having returned home late in the evening. To all intents and purposes, he was defenceless. Your murder of him was brutal, callous and utterly cowardly.

15 The primary victim of your crime was, of course, Graham Kinniburgh. At the time of his death he was 62 years of age. He had been married to his wife, Sybil, for 36 years, and was a devoted father to his children, and grandchildren. By your heinous crime, you have taken his life from him, and deprived him of the opportunity of enjoying his family in his later years.

16 There are also other victims of your violent crime. I have read the victim impact statement of Graham Kinniburgh's wife, Sybil, which eloquently depicts the traumatic and enduring effect of her husband's loss both to her and to his family. Their continuing grief and sense of loss is a direct consequence of his murder by you and Blewitt.

17 On your plea, your counsel was instructed not to put before the court any of your personal circumstances, other than that you are 56 years of age, and that you have the loyal support of your parents and family, who have travelled regularly to court from the country in order to be with you during the trial and on your plea. Otherwise, no mitigating circumstances have been put on your behalf, relating to the offending, or to matters personal to you.

18 You have a number of previous convictions. In particular, in 1987, you were convicted, before the Melbourne County Court, of two charges of maliciously inflicting grievous bodily harm and one charge each of affray and assault causing actual bodily harm. You were sentenced to a community based order for two years, and a twelve month prison sentence was imposed on you, nine months of which was suspended for two years. Subsequently, in 1993, you pleaded guilty before the Melbourne County Court to three charges of armed robbery, one charge of criminal damage by fire, and six charges of theft. You were sentenced to a total effective term of imprisonment of 15 years, with a minimum non-parole period of ten years.

19 The circumstances, in which you committed those offences, are set out in the judgment of the Court of Criminal Appeal, to which you unsuccessfully appealed your sentence, in November 1994. They demonstrate that, in the past, you have had a disturbing proclivity to engage in violent and dangerous offending using loaded firearms.

20 The first charge, on which you were convicted, comprised a brazen armed robbery on a Brambles security van, in which a large payroll, held by the guards of that van, was taken by you and your co-accused. The second robbery involved the entry by you and your accomplices into a suburban restaurant after it was closed. In the course of that robbery, a gun was held to the head of the manager of the restaurant. The third robbery was carried out by you, and two other accomplices, on the crew of an Armaguard van at Tullamarine. Your co-offenders and you were each armed with loaded revolvers. The three of you confronted the crew of the van at gunpoint. In the course of the escape by you and your co-offenders, shots were fired by your co-offenders. Police prevented your escape by ramming the vehicle which you were driving. Inside that vehicle were two loaded Armalite semi-automatic rifles, each with a separate loaded magazine, and on the front seat of the vehicle was a loaded automatic pistol.

21 In addition, you have a number of subsequent convictions. They are not relevant for the purpose of aggravating the offence for which I am to sentence you. However, they are material as being illustrative of your character, and as bearing on your prospects of rehabilitation and the requirements of specific deterrence.

22 You were released on parole from the offences, to which I have just referred, in June 2002. In September 2004, your parole was cancelled, following your arrest on charges of blackmail and intentionally causing injury. As a result, there were still almost three years of your previous sentence outstanding. Subsequently, you were sentenced at the Bendigo County Court, on the charges of blackmail and intentionally causing injury, to 6 months' imprisonment. The circumstances of the offending, while somewhat bizarre, nevertheless involved a threat made by you to one of your victims that if he did not provide $5,000 to you, you would put a bullet in his head.

23 You were released on parole, on the charges on which you were then incarcerated, in June 2007, and you completed the parole period in February 2008. In December 2011, you were sentenced to a total effective sentence of 4 years' imprisonment, with a non-parole period of two years, on two charges of recklessly endangering serious injury, and one charge of threat to kill. The charges of reckless conduct involved you deliberately driving your motor vehicle at two members of Victoria Police, who had to take evasive action in order to avoid being struck by your vehicle. The charge of making a threat to kill involved particularly sinister conduct by you. After your arrest, and while you were in custody, you told a policeman, in most intimidating terms, that when you were released in a week's time, you would dig a hole and bury him.

24 Subsequently, in September 2012 you were sentenced in the County Court (on appeal from the Magistrates' Court) to 21 days' imprisonment, to be served concurrently with your earlier sentence, on charges of resisting police and delaying the police. In October 2012, you were sentenced by Bendigo Magistrates' Court to 6 months' imprisonment, to be served concurrently with your earlier sentences, on a charge of affray. You were arrested and charged with the murder of Graham Kinniburgh on 4 November 2015, and on 4 December 2015 all your previous sentences lapsed.

25 As a result of your subsequent conviction for making a threat to kill, pursuant to s 6B of the Sentencing Act 1991 ('the Act'), you are to be regarded as a serious violent offender. As a result, s 6D(a) of the Act provides that, in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. I should interpolate that, regardless of the operation of s 6D, the nature of your previous and subsequent convictions, and the nature of the offending in this case, would otherwise have the effect that the protection of the community would be given significant, if not primary, weight in sentencing you. For that reason, the prosecution took the position that it is not necessary to impose a sentence, that is longer than that which is proportionate to the gravity of your offending in this case. The position so taken by the prosecution is, I consider, appropriate.

26 It was put on your behalf that the principles of totality, and of just sentencing, require that I take into account, as a mitigating circumstance, that, if you had been sentenced on the present charge while you were serving the sentence that had been imposed on you in 2011, the Court might have ordered some concurrency between the two sentences. Your counsel contended that that factor should operate in your favour, to moderate the sentence that would otherwise be imposed on you.

27 The offences, for which you were sentenced in 2011, and the present offence, were, of course, entirely separate and distinct, not only in terms of their circumstances, but also in respect of when they were committed. Nevertheless, I consider that there is some merit in the submission made by counsel on your behalf, so that I shall take that factor into account in your favour, albeit that I consider that, in the circumstances of this case, it only mitigates the sentence to be imposed on you to a quite minor degree.

28 As I have already mentioned, the principle of the protection of society from you must be given substantial, if not primary, weight in determining your sentence. By your past conduct, and by the manner in which you committed the offence for which I am to sentence you, you have demonstrated that you have no compunction about committing serious violent offences using loaded firearms. The fact that, in the present case, you were prepared to, and did, undertake the role of a paid hitman, reflects the degree of danger that you would pose to the community if you were at large.

29 In addition, given the heinousness of the offence committed by you, the principle of denunciation is significant. The sentence imposed on you must reflect the revulsion of the community as to the type of conduct in which you engaged, and the court's and the community's condemnation of the manner in which you flagrantly flouted our society's most basic human values. Equally, the principle of general deterrence is of significant relevance in a case such as this. The sentence to be imposed on you must be of sufficient severity to make it plain that any person, who undertakes to kill another for reward, can expect no mercy from the courts. Further, your offending, your previous convictions, and your subsequent convictions, demonstrate that your prospects of rehabilitation are poor, so that the consideration of specific deterrence must be given appropriate weight.

30 For the purposes of determining your sentence, your counsel, and counsel for the prosecution, have each referred me to a number of sentences in cases involving premeditated murder, and, in particular, cases that involve executions of victims by paid contract killers. Your counsel has also helpfully compiled a table of some of those sentences.

31 Ordinarily, so-called 'comparable' cases are relevant and helpful to indicate the sentencing range in respect of the offence which is under consideration. An evaluation of such cases is directed to ensuring, so far as possible, a consistency between the sentence to be imposed in the instant case, with other sentences for similar or comparable offending. However, the courts have cautioned, on a number of occasions, that the consistency that is sought is not a mathematical equivalence of sentences, but rather a consistency in the application of the relevant legal principles. In each case, a sentence is arrived at by synthesising the varying, and often conflicting, sentencing considerations, and by applying the principles of sentencing to the facts of the case in the exercise of the sentencing judge's discretion. For that reason, the facts in the 'comparable' cases, that have informed the exercise of the discretion in those cases, are, inevitably, different and distinct from the facts on which I must sentence you. Nevertheless, the cases, to which I have been referred, have been helpful in indicating the range of previous sentences in the category of case into which, broadly speaking, this case falls.

32 I have undertaken a brief review of some of those cases for that purpose. That review is somewhat detailed. I shall not read that review in court in sentencing you, but I shall make it an appendix to the published version of these reasons for sentence. That document, Appendix 'A', will form part of my reasons for sentence.

33 My review of those cases reveals that a term of life imprisonment has been imposed in a number of cases of murder involving contract killers. In some of those cases, the offending was more serious than in your case, and in some of the cases, the accused had more serious previous convictions than you do. On the other hand, there were mitigating circumstances in a number of those cases, which do not apply in your case.

34 There are also some cases in which paid killers, or persons who have killed for gain, have been sentenced to a term of imprisonment with a fixed head term, and a non-parole period, which could be broadly described as being comparable to the present case. Again, the circumstances of each of those cases vary, and the circumstances of the offenders vary, from the circumstances in this case. In particular, in most of those cases, there were some mitigating personal circumstances relating to the offender, or the offender had less serious previous convictions than your prior convictions.

35 In the upshot, a review of what may be broadly described as comparable cases reveals that the relevant range of sentences for the offence of murder, of the kind for which you have been convicted, is between a head sentence of life imprisonment with a minimum non-parole period, and a head sentence of a substantial term of imprisonment. Counsel for the prosecution submitted that in this case a sentence of life imprisonment is open to the Court, but that I would not fall into appellable error if I were to impose a substantial term of imprisonment less than life imprisonment. On the other hand, your counsel submitted that a sentence involving a head sentence less than life imprisonment, with a non-parole period, would be appropriate.

36 As I stated, your offending in this case was particularly serious. I agree with the submission, made on behalf of the prosecution, that it falls into the upper range of seriousness of instances of the crime of murder. No mitigating circumstances have been put forward on your behalf, either in relation to the offending, or in relation to your personal circumstances. You have a number of serious previous convictions, including for offending by using loaded firearms. You committed the offence in this case while you were on parole. As I have noted, the principles of general deterrence, condemnation, and protection of the community, are of significant importance in this case.

37 Taking those matters into account, in my view the only appropriate sentence to impose on you is a sentence of life imprisonment. I do not consider that, in the circumstances of the case, a sentence involving a fixed term of imprisonment would be sufficient to vindicate the primary purposes of sentencing that are pertinent in this case, and, in particular, to express the condemnation by the Court and the community of your crime, to protect the community, and to act as an effective general deterrent to the kind of offending in which you chose to engage.

38 I have concluded that you have limited prospects of rehabilitation. However, in light of your age, I consider that it is appropriate to fix a non-parole period that should have at least some meaningful content. In doing so, I also take into account the matter referred to by your counsel, namely, that it is appropriate to moderate the sentence to take into account that it will be entirely consecutive upon the completion by you in December 2015 of the sentence imposed on you in 2011.

39 Taking those matters into account I sentence you as follows. For the murder of Graham Kinniburgh, I sentence you to life imprisonment. I direct that you serve a minimum of 27 years before you become eligible for parole.

40 Pursuant to s 18(4) of the Act, I declare that a period of 505 days be reckoned as already served under the sentence which I impose. I shall cause that declaration to be noted in the records of the Court.

1 This appendix forms part of my reasons for sentence. It contains a brief review of some cases to which I have been referred for the purpose of attaining the range of sentences imposed in cases which might be said to be broadly comparable to the present case. I shall consider, first, those cases in which the offender was sentenced to a term of life imprisonment.

2 In R v Williams,[1] the offender, Carl Williams, was sentenced for the murders of Jason Moran, Mark Mallia, Lewis Moran and Mario Condello, to a total effective sentence of life imprisonment with a non-parole period of 35 years. Without rehearsing the facts of that case, his offending was more egregious than the offending in the present case. On the other hand, Williams had limited previous convictions. He pleaded guilty, which the judge considered to be a significant mitigating circumstance.[2] In addition, the judge took into account that, in order to protect the safety of Williams, it had been, and would be, necessary that he be held in the harsh conditions of the Acacia high security unit of Barwon Prison. The judge accepted that the manner in which Williams was then imprisoned was 'difficult and oppressive'.[3]

3 In R v Goussis,[4] the accused, a paid hitman, was convicted after a trial of the murder of Lewis Moran and one count of intentionally causing serious injury to a friend of Moran. He was sentenced to life imprisonment on the murder charge, and to 12 years' imprisonment on the charge of intentionally causing serious injury, making a total effective sentence of life imprisonment, with a non-parole period of 34 years. In broad terms, the offending by Goussis was reasonably comparable to the offending in the present case. He pleaded not guilty, and had a substantial criminal history, including for attempted murder for which he had been sentenced in August 1989. Goussis also had a subsequent conviction for the murder of Lewis Caine.

4 In Noel Faure v The Queen,[5] the accused was sentenced to a term of life imprisonment, with a non-parole period of 23 years, for his part in the murder of Lewis Moran. The evidence was that Noel Faure and Goussis jointly participated in the murder of Moran in the Brunswick Club. Faure pleaded guilty, and was found to exhibit some remorse for his offending. Of particular weight, in the sentencing process, was Faure's poor physical and mental health. None of those mitigating circumstances are present in the present case. On the other hand, Noel Faure had a number of previous convictions including a conviction for manslaughter.

5 The witness known in this proceeding as witness D pleaded guilty to the murder of Lewis Moran, on the basis that he had agreed with two other persons to carry out that murder, and had driven Goussis and Noel Faure to the Brunswick Club where Moran was murdered. He also was found guilty, after a trial, of the murder of Lewis Caine.[6] Witness D had a number of previous convictions including two convictions for manslaughter. On the other hand, he provided a high degree of cooperation with the authorities, and he suffered from a number of health problems. He was sentenced to a term of life imprisonment with a non-parole period of 19 years. His role, in arranging and participating in the murder of Lewis Moran, was more serious than the prisoner's role in the present case in the murder of Kinniburgh, but, on the other hand, there were the mitigating factors to which I have referred.

6 In DPP v Brazel,[7] the accused, in 2003, pleaded guilty to a murder that he had committed 20 years previously. The victim of the killing was an innocent woman, who was a mother of two young children. Brazel was paid to kill her, although the identity of the principal, and the principal's reasons for wishing the victim deceased, were not entirely clear. He had a number of previous convictions, and subsequent convictions, including two subsequent convictions for murder. Brazel confessed to the 1982 murder in order to purge his guilt, and to confront his 'demons'. He was sentenced to a term of life imprisonment, with a minimum term of 27 years' imprisonment.[8] Brazel's subsequent convictions are more serious than those of the prisoner, but, on the other hand, his plea of guilty, and the circumstances in which he confessed to his guilt, were significant mitigating factors.

7 That review of previous cases, comparable to the present case, in which contract killers have been sentenced to terms of life imprisonment, demonstrates a sentencing range, for such offences, consistent with the imposition of a life sentence, with an appropriate non-parole period, for those offences. Given the gravity of the type of offence for which the prisoner has been found guilty, that proposition is hardly surprising.

8 On the other hand, there are a number of other cases in which paid killers, or persons who have killed for gain, have been sentenced to a term of imprisonment with a fixed head term, and a non-parole period.

9 In R v Seckold,[9] the accused was the head of a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. He suspected that the deceased had stolen methylamphetamine from him and then informed the police about the laboratory. As a consequence, with his co-accused, he entered the deceased's house, abducted him, and drove him to a country location, where he was killed by being shot in the head. Seckold was sentenced to 28 years' imprisonment for the murder. Sentences for kidnapping and other offences were imposed at the same time, making a total effective sentence of 32 years' imprisonment, with a non-parole period of 25 years. Essentially Seckold's offending would be classified as being as serious as the offending in the present case. On the other hand, Seckold had only one minor previous conviction, and the sentencing judge found that he had some prospects for rehabilitation.

10 In R v Cavkic, Athanasi & Clarke,[10] Clarke, who was employed by a solicitor, Keith Allan, had defrauded his employer by stealing from his trust account. Clarke conceived a plan of having Allan killed in order to cover up his theft. He procured Athanasi to recruit a killer, and in turn he procured Cavkic to carry out the killing. They were each convicted of murder. Cavkic (who shot and killed Allan) was sentenced to 25 and a half years' imprisonment with a minimum period of 21 and a half years, and Athanasi was convicted to 24 years' imprisonment with a minimum term of 19 years.[11] Cavkic did not have any relevant previous convictions. The judge found him to have reasonable prospects of rehabilitation and noted that he had been a model prisoner during the previous five years. Athanasi had previous convictions for street offences which were irrelevant. The judge found that he had the capacity to rehabilitate himself, and he also was described as a model prisoner, who had undertaken all available courses and had worked consistently. No such mitigating circumstances have been identified in the present case.

11 In DPP v Borg,[12] the accused, Leonard Borg, had been growing a marijuana crop in his home for the purpose of trafficking. When police discovered the crop, Borg believed that an acquaintance, Peter Rule, had informed the police. Accordingly, Borg induced Rule to travel with him in a van, and he drove him to a factory, where he shot Rule six times in the head and four times in the chest. Borg was 29 years of age, and had some limitations in his cognitive ability, although he was able to plan the cultivation of a large number of cannabis plants. The Court of Appeal appropriately described the killing as a planned execution to protect Borg's criminal enterprise. In that way, there is some comparability between that case and this. On the charge of murder, and on associated charges of handling stolen goods and cultivating a narcotic plant, the Court of Appeal (upholding an appeal by the DPP) sentenced Borg to 28 years' imprisonment for the murder, 12 month's imprisonment for handling stolen goods, and 3 years' imprisonment for cultivation of the cannabis, resulting in a total effective sentence of 28 years and 9 months' imprisonment with a non-parole period of 24 years and 9 months.

12 In R v Spence,[13] the accused was sentenced to 27 years' imprisonment with a non-parole period of 22 years, for murder. The accused had suspected that the deceased had informed on him to the police about his illicit drug activities, and as a result drove the deceased to a remote rural location on a pretext. There the deceased was cruelly suffocated to death, and his body was then burnt. The accused had a limited criminal history, and no previous history of violence. He suffered from an acquired brain injury as a result of being hit by a tram some years earlier, so that his intelligence was assessed in the borderline range. The sentencing judge was satisfied that he had reasonable prospects of rehabilitation. While in custody awaiting trial, he had undertaken appropriate courses directed to his rehabilitation.

[1] [2007] VSC 131.

[4] [2009] VSC 16.

[5] [2011] VSCA 115.

[6] (Unreported, Supreme Court of Victoria, Teague J, 3 May 2006).

[7] [2003] VSC 95.

[8] See R v Brazel [2005] VSCA 56; (2006) 153 A Crim R 152. On appeal, the non-parole period was reduced to 22 years' imprisonment by a majority (Callaway and Batt JJA). Callaway JA, with whom Batt JA agreed, noted that 'it should be emphasised that this is a very unusual case' at 162 [30].

[9] [2014] VSC 441.

[10] [2007] VSC 289.

[11] See R v Cavkic, Athanasi & Clarke (No 2) [2009] VSCA 43. On appeal, the Court reduced Athanasi's sentence to 22 years and 11 months' imprisonment, with a non-parole period of 17 years and 11 months, due to an error in calculation by the sentencing judge.

[12] [2013] VSCA 181.

[13] [2015] VSC 321.