DPP v D J [2017] VSC 64

Supreme Court of Victoria|2017-02-23|Before: JANE DIXON J

CRIMINAL LAW - Sentence - Assist offender, s 325(1) Crimes Act 1958 - Serious example of the offence - Undertaking to assist the Crown, s 5(2AB) Sentencing Act 1991 - Community Correction Order with additional conditions - Guilty plea, s 6AAA Sentencing Act 1991.

2. The charge is brought pursuant to s 325(1) Crimes Act 1958 and relates to assistance you provided to Brendan Neil and Wayne Marmo in the disposal of the body of Simone Quinlan ('the deceased'), whilst knowing or believing that they had murdered her. It also encompasses assistance to them in the washing of the vehicle which was used to transport the deceased's body and assisting in the destruction of that vehicle.[1] The Crown alleges that these actions were performed with full knowledge of Brendan Neil and Wayne Marmo's actions in the murder of the deceased.

3. The acts of assistance were performed for the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offenders in this matter.

4. By way of background to your offending, Brendan Neil was in an on-and-off relationship with the deceased Ms Quinlan since April 2015. Both were heavy users of the drug colloquially known as 'ice'.

5. Ms Quinlan had been periodically homeless in the period leading up to her death and her lifestyle was unstable and problematic. She was incapable of caring for her two sons and, due to her lack of stable accommodation and her drug dependency, she tended to drift to and from Neil's address despite the fact that she had from time to time endured controlling and violent treatment at his hands. She had been the subject of a police-initiated family violence intervention order earlier in August as a result of assaults perpetrated by Brendan Neil.

6. You did not know Brendan Neil or Simone Quinlan prior to 25 August 2015 although you had seen Mr Neil once before. You were a friend of TS and had known her for many years.

7. You had suffered loss of employment and personal hardships in 2015 that led to you falling back into heavy drug use with TS. She was in a relationship with Wayne Marmo at that time, and you met Wayne Marmo and his brother Luke through your association with TS. You had only recently come to know Wayne Marmo in this way.

8. On 25 August 2015 you were present with TS at the home of Wayne Marmo when he received a call from Mr Neil asking for assistance.

9. You went along with Wayne Marmo and TS in a Hilux utility to the premises of Brendan Neil, arriving in the late afternoon.

10. There was an argument going on between Mr Neil and the deceased when you arrived at the premises and the argument continued whilst you, TS and Wayne Marmo sat at the table in the kitchen.

11. You used ice as did some others present at the premises.

12. The argument escalated until it was apparent to you that Mr Neil was physically battering Ms Quinlan whilst interrogating her and accusing her of having spoken to the police about him.

13. The violence perpetrated by Mr Neil towards the deceased became extreme and included using cable ties and duct tape to physically restrain her, and kicking her to the head and chest. This took place over a lengthy period ultimately escalating even further when Brendan Neil inflicted several blows to her head with a hammer.

14. At that point, you observed that the deceased was on the floor surrounded by a pool of blood. You believed that Ms Quinlan was dead as a result of the battering she had received and you did not observe any signs of life thereafter.

15. You did not see any person assault her other than Brendan Neil but you did see Wayne Marmo with a .22 rifle in the course of the events at Neil's house, and you saw him cut down the barrel of the rifle.

16. You then heard Wayne Marmo suggest to Mr Neil that it was time for something to be done with Ms Quinlan because of the risk that she would 'lag' on him.

17. He said: She's 100% gonna lag now, she's gotta go.

18. Neil obtained a sheet and wrapped it around the body of the deceased.

19. You and TS went outside and sat in the utility that you had arrived in. You sat in the back seat behind TS.

20. At some stage during proceedings Luke Marmo had arrived at the premises as well.

21. You have said in a VARE provided to police on 18 October 2016 that during the attack on the deceased, you were afraid to intervene and did not want to be involved in the events that were taking place.[2]

22. You said that you saw the opportunity to leave the house when TS went outside to the car. After 30 seconds you followed her out and got into the back seat of the utility. You sat behind TS who was in the front passenger seat.

23. You then observed Simone Quinlan's body being placed in the back of the utility, and Wayne Marmo getting into the driver's seat, whereas Brendan Neil and Luke Marmo left together with the avowed intention that Neil would put himself on some CCTV somewhere by way of an alibi.

24. You understood that the purpose of putting the body of the deceased into the utility vehicle was to dispose of it.

25. The utility was driven to Anthony's Cutting in Bacchus Marsh where Wayne Marmo pulled off the main road and got out with his .22 rifle.

26. You also exited the vehicle at that time. You said in your VARE that you apprehended that Wayne was going to use the gun to shoot the body of the deceased even though you believed Ms Quinlan was already dead. You said you feared being shot if you stayed in the rear passenger seat and that TS encouraged you to get out.[3]

27. Although the body of the deceased was already lying in the tray of the utility under the tarpaulin, Wayne Marmo fired several shots to the head of the deceased, apparently for the purpose of ensuring that she was in fact dead.

28. He then returned to the driver's seat and continued driving around looking for a place to dispose of the body. He drove all the way to the outskirts of Bendigo, after stopping off at a service station en route. He eventually headed towards an area known for its disused mine shafts.

29. Eventually a mine shaft off Crusoe Road, Kangaroo Flat, was pin-pointed by Mr Marmo as the place where the body would be abandoned. When Wayne Marmo exited the car you also got out and the body of the deceased was dropped down the mineshaft by Wayne Marmo. I am not able to find beyond reasonable doubt on the evidence before me that you physically assisted in that process, despite the Crown expressing reservations as to whether it was a job for only one person.

30. After the deceased's body was deposited in the mine shaft, Wayne Marmo tipped petrol down and set it alight in an attempt to incinerate the body of the deceased to avoid detection.

31. The utility was then driven by Wayne Marmo to a carwash in Kangaroo Flat arriving at 1:02 am. He then used a high-pressure hose to wash blood from the back of the utility.

32. The utility was then driven to the place where your car was parked, and you further assisted Wayne Marmo by following him in your car whilst he drove the utility to a location where the car was to be destroyed by fire.

33. After assisting in the ways described, according to what you told police in your VARE, you stayed at home for a few days and tried to avoid your co-offenders as you were shocked by what had occurred. You told police that you thought about going to the police and reporting what had happened but took the view that if these men were prepared to deal with Ms Quinlan in such a manner because of a belief that she was lagging on them, they could do the same to you.[4]

34. Simone Quinlan was listed as a missing person after her death and it was only when TS was interviewed by police and made a statement on 26 September 2015 that the remains of her body were able to be located.

35. You were arrested and interviewed the day before TS on 25 September 2015, but your original version given to police was false and was designed to hide your involvement and knowledge. You later told police in the VARE that you lied because you thought there was a risk that you would be unfairly set up and held responsible for Ms Quinlan's death.[5]

36. You were charged with murder on 26 September 2015 and remanded in custody, and you remained subject to that charge until committal proceedings which concluded on 16 August 2016, at which stage you were discharged on the charge of murder and committed to this court on the charge of assist offender.

37. You had offered to plead guilty to assist offender at an early stage, and your solicitor had provided a 'can say' statement on 17 December 2015 to Homicide investigators.

38. Whilst that statement suffers the limitations that it was drafted by a solicitor, never signed or adopted and was put forward on a without-prejudice basis, it did provide an indication of your willingness to confirm the central features of the actions performed by Brendan Neil and Wayne Marmo relevant to the charge of murder against them.

39. Further attempts were made on your behalf to resolve your matter prior to the contested committal proceeding and during the course of the committal. Ultimately, you entered a plea of guilty to assist offender before the Magistrates' Court after you were discharged of the charge of Murder on 16 August 2016.

40. You were arraigned and pleaded guilty to the charge of assist offender in this Court on 7 October 2016.

41. On 20 September 2016 you had been released on bail on strict conditions, and it was after your release that you provided the VARE and a further police statement, setting out more accurately and fully your actions and those of Mr Neil and Mr Marmo. You also advised the police about letters handed to you whilst in custody. You told them that you believed the letters were sent by hand through other prisoners at the instigation of Mr Neil in an attempt to influence the course of any evidence you might give or decisions you might make.

42. On 25 November 2016 a further statement was taken from you which annexed the letters in question.

43. Before me on your plea you have undertaken to make yourself available to give evidence in accordance with the statement and VARE made on 18 October 2016 and the statement made on 25 November 2016.

44. You have given this undertaking with the understanding that I will impose a less severe sentence on you pursuant to s 5(2AB) Sentencing Act 1991 because of your willingness to assist the Crown. You have indicated that you understand that this means that if you do not comply with the undertaking you can be brought back to court and subjected to the imposition of a harsher sentence.

45. At the present time you understand that you are required by the Crown to be available for cross examination by counsel for Brendan Neil and Wayne Marmo at a Basha hearing in March this year.

46. I should add that no charges were ever proferred against TS, who is also a Crown witness. Luke Marmo was also not charged.

47. There was some uncertainty as to whether TS would be available at the committal hearing when she failed to attend on the first day, and the Crown has indicated that the evidence available from you provides important 'insurance' for the prosecution given that you and TS witnessed all the key events relied on by the Crown in its case against Brendan Neil and Wayne Marmo.

48. Turning to your personal circumstances, you are aged 24 and were 23 at the time of the offending. You had a severely disrupted and unfortunate childhood and adolescence.

49. Your father was an alcoholic and drug addict and was violent towards family members. Your parents separated when you were aged three and you and your older brother and sister resided with your mother until she suffered a severe stroke in 1999. She then became care dependent and you and your brother were forced to live with your father. You were often left in the care of an uncle on weekends and your uncle sexually assaulted you on occasions.

50. You begin experimenting with drugs and left your father's home, dropping out of school during year eight.

51. You had a close relationship with your grandmother and you managed to obtain regular employment despite the impediments created by your family circumstances.

52. However, you lost your job at the age of 22 when the air conditioning company that you worked for closed. At that time your grandmother was diagnosed with a brain tumour. She had been caring for your mother, and thereafter your mother had to be placed in a nursing home. Overwhelmed by your unlucky circumstances, you reverted to the use of methamphetamine and began spending time with TS. It was in those circumstances that you met Brendan Neil and Wayne Marmo and became a participant in the matters before the court.

53. Despite the depths to which you descended by virtue of your willingness to lend assistance to Brendan Neil and Wayne Marmo as an accessory after the fact to a murder, you have now recognised the need for a change of attitude and behaviour.

54. Upon being remanded in custody, you undertook a number of self-improvement courses and undertook voluntary drug screening. You were visited by a girlfriend and she has indicated that you have evinced a desire to reform yourself. You received support from your older sister and she helped put forward a case in favour of the granting of bail. Since being granted bail on 20 September 2016 you have worked hard to abide by your bail conditions whilst also obtaining full time work. You have been promoted within your current employment (redacted). In compliance with bail conditions you have sought drug treatment and provided drug test results. You have maintained a close relationship with your girlfriend and assisted her with the parenting of her child. Your drug testing results have been favourable and you have remained closely supported by family members. You have avoided criminal associations and have made every effort to rehabilitate yourself.

55. Your counsel tendered a written submission on your plea, as well as a psychological report from Jeffrey Cummins dated 30 November 2016, a brief resume, character references from friends and family, certificates for courses undergone in custody, toxicology screening reports and a sentence/remand report setting out the course of your time spent on remand.

56. Mr Cummins' report did not diagnose any serious psychological condition but he found you to be anxious and mildly depressed in connection with your forensic circumstances.[6] He considered that you had a methamphetamine dependency at the time of the offending.[7]

57. He noted that you felt relieved when you provided details of the murder of the deceased to police but that you were apprehensive about giving evidence, although you believed that the incident that you witnessed was totally unacceptable.[8]

58. Mr Cummins made reference to your heavy daily use of methamphetamine at the time of the offending and stated that you told him that witnessing the murder of Ms Quinlan forced you to realise the stupidity of being associated with the drug scene.

59. You have some limited previous criminal history, including theft of a motor vehicle in 2012, heard in the Sunshine Magistrates' Court, for which you were ordered to complete a party program without conviction; and assault and damaging property for which you dealt with in the Sunshine Children's Court in 2010, and received a fine without conviction.

60. The offence to which you have pleaded guilty is a serious crime and I consider your offending to be in the upper range of seriousness for this class of offence. Your presence during the brutal attack on the deceased distinguishes your case from some other cases where assistance is provided by those who were not present during the killing. However, it is also the case that you have said you were afraid to intervene and did not know Mr Neil and had a limited connection to Mr Marmo. You did not cooperate with police until after you were placed in custody, so your past cooperation is less impressive than if you had cooperated from the outset.

61. However, taken globally, your ultimate cooperation with police, your past assistance and your offer of future assistance together with your plea of guilty encompass significant matters in mitigation which bear on the sentence I must impose. Other matters in mitigation that I have taken into account include your relative youth, troubled upbringing, good employment history and supportive family.

62. I also consider that your prospects for rehabilitation are very good in light of the material before me. I do not consider specific deterrence to be particularly applicable to your circumstances, in light of the material before me that suggests that you are well aware of the need to avoid criminal associations in the future.

63. I have given consideration to general deterrence, denunciation and just punishment as well principle of parsimony.

64. I have had regard to the comparable cases mentioned by the prosecutor and your counsel and taken into account current sentencing practice for this offence in circumstances of a plea of guilty and offer to assist the Crown.

65. I consider the case of Saunders[9] to be a good comparator, including the fact that the offender in that case was regarded as having committed a serious example of the offence - assisting removal of the body from the scene of the crime and helping dispose of it, as well as providing shelter to the principal offender afterwards. Justice Curtain was mindful in that case of the fact that the accused was fearful of repercussions from the principal offender if he did not assist. Her Honour imposed a sentence of 304 days and declared it as time served noting in her reasons the preparedness of the accused to give evidence against the principal offender on his trial for murder and the value of such evidence in circumstances where the risk to the personal safety of the accused should not be underestimated. She emphasised the social utility of such a process.

66. Similarly, Lasry J in Bacak[10] imposed a Community Correction Order ('CCO') on the charge of assist offender. The accused in that case helped dispose of the victim's body by loading the body into a car and taking the car to a location to be burned. He also took steps to help the offender dispose of clothing, and then lied to police when questioned about his knowledge of the principal offender's crime.

67. In considering the range of cases dealing with this offence, it is not a unique circumstance for the accessory after the fact to have been in close proximity to the principal offenders when the principal offence occurred. This fact is by no means determinative of the sentence to be imposed.[11]

68. The objective gravity of your offending and the importance of general deterrence would usually require a term of imprisonment beyond the period that you have already served. Conduct designed to allow those who commit serious offences to escape detection frustrates the proper administration of justice.[12]

69. I have reflected on the victim impact statement by Simone Quinlan's mother and can well understand the devastation her family felt having learned of the way in which she was killed.

70. Mrs Quinlan spoke of the heartache and grief that has consumed Simone's family since her death.

71. The Crown submitted that you should be sentenced to a term of imprisonment encompassing a head sentence and non-parole period, and they maintained this position even though it might lead to you being returned to custody. This would obviously impair the progress of your rehabilitation, and might also enable further attempts to be made by others to influence your choice to give evidence for the Crown, given that this has already occurred during your time on remand. It was suggested by the prosecution that you could be placed on protection if you were remanded in custody, in order to avoid such an occurrence, but your counsel advises that you were on protection when the previous attempts were made to influence you, through the passing on of letters alleged to have come from Mr Neil.

72. Your offer to give evidence is important to the Crown and it is understandable that you are anxious about that prospect. Despite those concerns you have maintained a stable, responsible and drug-free presentation.

73. Your counsel, Mr Chernok, submitted that the 362 days spent in custody on remand should be reflected in your sentence as time served without returning you to prison, and without any further order. However, I have ultimately decided that you should be placed on a CCO as an adjunct to the 362 days already served.

74. I called for assessments from the Department of Justice and Regulation by way of an extended pre-sentence assessment report. In that report of 7 February 2017 [13] you have been found suitable for a CCO despite the seriousness of the charge to which you have pleaded guilty.

75. The assessment suggests that it will be fundamentally important that you avoid past negative associations and receive appropriate drug therapy and screening. It also suggests non-association conditions. Some of these conditions mirror your previous bail conditions but I also propose that you should undertake some community work.

76. In deciding to impose a term of imprisonment in addition to a CCO, I have taken into account all of the matters put forward by the Crown including features of aggravation.

77. I have also considered the matters put forward in mitigation, and am particularly influenced by your plea of guilty, and the offer to plead guilty to the current charge at a very early stage. It is also significant that you spent nearly a year on remand facing a murder charge which ultimately did not proceed, in contrast to the position of TS who was never charged with any offence. Also your past co-operation which was offered after you were remanded in custody and your sworn undertaking to give evidence for the Crown together with the importance to the prosecution of the evidence you are able to give.

78. There is strong evidence in support of your attempts to reform yourself including your response whilst in prison, your positive response to being admitted to bail, and your good prospects for rehabilitation.

79. I also accept that you are remorseful and acknowledged the gravity of what was done to the deceased in your discussions with Mr Cummins.

80. Pursuant to s 5(2AB) Sentencing Act 1991, I declare that I am imposing a less severe sentence then I otherwise would have imposed because of the undertaking you have given to give assistance to the Crown, and I direct that the undertaking be noted in the records of the court.

81. I sentence you to a term of imprisonment for 362 days but declare it as time already served.

82. I am also imposing a Community Correction Order for 18 months with the following conditions in addition to the core conditions required under s 45 Sentencing Act 1991:

you must undertake 100 hours of unpaid community work pursuant to s 48C of the Act;
you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Secretary pursuant to s 48D(3)(a) of the Act. Pursuant to s 48CA of the Act, all of the hours satisfactorily undertaken under this condition are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;
you must not contact or associate with Brendan Neil, Wayne Marmo and Luke Marmo;
you must undergo any program that addresses factors related to your offending behaviour as directed by the Secretary pursuant to s 48D(3)(f) of the Act; and
you must submit to supervision, monitoring and management as directed by the Secretary pursuant to s 48E of the Act.

83. I am required to explain to you that if you contravene a condition of the order you may be sentenced for the original offence along with an additional penalty of up to three months imprisonment in respect of the contravention.

84. I must declare pursuant to s 6AAA Sentencing Act 1991 the sentence that I would have imposed on you had you not pleaded to guilty.

85. Of course the significance of your plea of guilty in this case has been greatly enhanced by the other mitigating factors already discussed.

86. However, I declare that if not for your plea of guilty, I would have imposed a sentence of three years and six months with a minimum term of 20 months.

[2] Visual and Audio Recording of Evidence ('VARE'), 18 October 2016, 10-11. See also TS's evidence at committal confirming that D J was afraid.

[6] Report of Dr Jeffrey Cummins, 30 November 2016, [31].

[9] R v Saunders [2007] VSC 298.

[10] R v Bacak [2015] VSC 474.

[11] See DPP v Hornjak [2013] VSC 114; R v Trezise [2014] VSC 9; R v Newton [2002] VSC 182; R v Vega [2015] VSC 683.

[12] Landmark v R [2015] VSCA 1178, 15.

[13] This report bears the date 7 February 2016, but this is clearly a typographical error.

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