DPP v Luke Marmo [2018] VSC 31

2 On 25 August 2015, Simone Quinlan was murdered by Brendan Neil and Wayne Marmo, who have already been sentenced by me.[1] You provided assistance to Neil and Marmo in facilitating the disposal of the body of Simone Quinlan and attempting to eliminate forensic evidence, whilst knowing or believing that Neil and Marmo were guilty of murder. You intended to help cover up their crime.

3 The maximum sentence for assisting offender where the principal offence is murder is offence is 20 years.

4 The factual background to the charge against you was outlined in the Crown Amended Summary of Prosecution Opening for Plea ('ASPO').[2] An outline of defence submissions[3] and chronology[4] was filed on your behalf along with two psychological reports[5] and some urine drug screen results.[6] I have taken all these materials into account for the purposes of the plea. I have also had regard to evidence in the depositions and evidence put forward in the prosecution of the principal offenders.

5 Simone Quinlan was savagely assaulted by Brendan Neil at his home at 21 Killarney Drive, Melton ('the Killarney Drive premises') over a number of hours. She was then wrapped in a blanket and placed in the back of a Hilux utility vehicle and taken away by Wayne Marmo to be disposed of.

6 Brendan Neil was your friend, and Wayne Marmo is your cousin. The three of you had grown up together, and all three of you were heavy users of the drug colloquially known as 'ice'. Simone Quinlan, who was also a user of ice and also of heroin, had been in a fraught and violent relationship with Brendan Neil. She had been homeless prior to moving in with Neil in April 2015, until she was killed in August. You were aware of the violent and abusive relationship between Simone Quinlan and Brendan Neil and knew of previous assaults perpetrated by Neil on Quinlan.

7 On 25 August 2015, Brendan Neil violently assaulted Simone Quinlan in the lounge room of the Killarney Drive premises over a number of hours, in the presence of Wayne Marmo and Crown witnesses TS and DJ.[7] Brendan Neil was interrogating the deceased about 'lagging' to the police.

8 During the period that Neil was interrogating and assaulting the deceased, Wayne Marmo, TS and DJ were present nearby, intermittently smoking ice. Wayne Marmo was sawing off the end of a .22 rifle. At some stage after Simone Quinlan was already seriously assaulted, Wayne Marmo spoke of the need to get rid of her.

9 Wayne Marmo by his words and conduct became complicit with Brendan Neil in the murder of Simone Quinlan.[7]

10 Luke Marmo, you were on bail for earlier charges on the condition that your reside at the Killarney Drive premises.

11 At 5.06 pm, Brendan Neil telephoned your mobile phone and told you to attend there. That call was followed by a number of unanswered calls to your phone until shortly before 7.00 pm. At some stage during the evening, and whilst the assault on Simone Quinlan was occurring, you did attend the Killarney Drive premises for a short period.[8]

12 You then left the premises and returned somewhat later with a jerry can of petrol obtained from a service station. You were present at the Killarney Drive premises when Simone Quinlan was wrapped up in a blanket and put in the back of the Toyota Hilux utility. It cannot be determined beyond reasonable doubt whether Simone Quinlan was alive or dead at that point, but the evidence of TS and DJ was that she appeared to be dead.

13 The cover was closed over the tray of the utility vehicle and the can of petrol was placed by you on the rear seat of the utility. TS and DJ were already sitting in the Hilux utility when Wayne Marmo got in with a sawn-off rifle and prepared to drive away to dispose of the body of Simone Quinlan.

14 When Wayne Marmo was about to depart the Killarney Drive premises in the Hilux utility with TS and DJ, Brendan Neil told everyone present to throw their phones away and said he was going to a pub to put himself on CCTV. You were prepared to take him there in a Suzuki Swift vehicle and you ultimately left the Killarney Drive premises with Brendan Neil. You remained with Neil in the Melton area for some time and later went to your then-girlfriend's place and arranged for the clothes that you had been wearing that night to be burnt.

15 Wayne Marmo became concerned on his way to dispose of Simone Quinlan that she might still be alive. He stopped along the way and took steps to ensure that she was dead by lifting the cover of the tray and firing shots into the head of Simone Quinlan. He then drove onwards to Kangaroo Flat where he dropped Simone Quinlan's body into a mineshaft and, taking the jerry can of petrol you had obtained, used the petrol to incinerate Simone Quinlan's body.

16 The next day you helped Brendan Neil sand bloodstains from the floorboards in the living room at the Killarney Drive premises and used a blue light to see if any traces of blood remained. You were aware that in sanding the floors you were assisting with cleaning up evidence of Simone Quinlan's blood in the event that Brendan Neil was a suspect for her murder. Simone Quinlan became a missing person until 30 September 2015 when her remains were located following information being uncovered by police.

17 Counsel submitted on your behalf that you were motivated to offer support to Brendan Neil by your strong bond of loyalty to him that you had maintained since your teenage years.

18 Wayne Marmo and Brendan Neil were arrested for the murder of Simone Quinlan on 24 September 2015. On 24 April 2017, Brendan Neil pleaded guilty to murder before me; and on 15 May 2017, Wayne Marmo was convicted of murder by a jury after a ten-day trial. I sentenced them both on 14 December 2017. DJ was arrested on 25 September 2015. He was initially charged with murder, but discharged at committal proceedings. He subsequently pleaded guilty to a charge of assist offender for his role in facilitating the disposal of Simone Quinlan's body and the destruction of evidence. Pursuant to a sworn undertaking, he gave evidence for the Crown during a pre-trial hearing for Brendan Neil and Wayne Marmo, and later before a jury in the trial of Wayne Marmo. TS was never charged with any offence, but also gave evidence at the trial of Wayne Marmo.

19 Although DJ pleaded guilty to the same charge that you have pleaded guilty to, he received a more lenient sentence because of his undertaking to assist the Crown. It was not suggested by your counsel that you were entitled to strict parity of sentence with DJ in light of this key differential.

20 You were 24 years old at the time of your offending. You were initially arrested and interviewed by police on 24 September 2015, but you were not charged at that time. You made a statement on 25 September 2015 that contained lies and minimised your knowledge of what was done to Simone Quinlan. You were arrested and interviewed by police a second time on 8 May 2017, and the current charge was laid. You have been in custody since being charged under the current indictment.

21 Luke Marmo, you grew up in Braybrook, Victoria, to hardworking parents with whom you had a good relationship. Your father works in transport and your mother is a manager of serviced apartments. You had a happy childhood. You have had three significant relationships, starting from the age of 15. You have a daughter who was born in 2014, but your relationship with the child's mother has been unstable. Despite this, you are committed to retaining contact with your child and your parents have been involved in her care.

22 You were an average student who progressed through school at a normal rate until year 8 when you ran into difficulties and were expelled. You ultimately completed year 9 elsewhere and then left school to find work. You worked for two years with your uncle at Diamond Valley Pork Abattoirs in Laverton. To your credit, you joined the Rockbank CFA as a volunteer firefighter and spent more than two weeks deployed by the CFA following the Black Saturday bushfires. However, you then lost your job at the abattoirs as a result of your absence. You had commenced, but did not continue, a butchers' apprenticeship.

23 Around your late teens you began binge drinking and using methamphetamine.

24 You commenced a carpentry apprenticeship at 18 and then dropped out of it to work as a self-employed handyman. You have skills in carpentry and plastering. You did work of this nature for a few years.

25 You were 19 when you were sentenced in the Children's Court in 2010 for youth offending including burglary, theft and criminal damage. You were put on probation. In 2011, aged 20, you were extended a further chance to retain your liberty when the County Court imposed a suspended sentence and a Community Correction Order for attempted armed robbery and assault. Unfortunately, those orders were breached by further offending for which you were sentenced later in 2011 to your first custodial sentence, being 30 months youth detention. I was told that you were released after serving 16 months of that sentence at the facility at Malmsbury, and that you completed youth parole without incident. Prior to the incident that brings you before the court you had therefore never been imprisoned in an adult gaol. There have been some further offences committed or dealt with after the date of the current indictment, but I take into account that your poor behaviour since August 2015 may have been influenced by your uncertainty about police intentions over whether you were required as a Crown witness or might be the subject of prosecution for your role in the offence. Responsibility for the delay in charging you was accepted by the Crown as being not attributable to you.

26 I was informed by your counsel that you began a significant relationship in 2013 with Ms Kendall and she gave birth to your daughter in July 2014. You also began working for Australian Wool Handlers around this time and you worked in the wool industry for 12 months. You therefore had a reasonable work record and were working 6 days a week until the relationship with Ms Kendall fell apart. It appears you separated from Ms Kendall in late 2014 and, in response to the failure of that relationship, you spiralled into very heavy drug and alcohol abuse and stopped being a reliable employee. You therefore became unemployed and subsequently began to live at the Killarney Drive premises with Brendan Neil, who was similarly circumstanced in terms of family breakdown, unemployment and drug use.

27 I received a psychological report written by Patrick Newton,[9] who diagnosed you with severe substance abuse disorder with regards to methamphetamine, alcohol and a range of other drugs. Mr Newton identified drug use as your "most potent criminogenic factor".[10] He expressed concern about your lack of insight into the severity of your addiction and the risks drugs and alcohol pose for you in the future. Unfortunately, you have tended to abuse drugs and alcohol in periods of stress since your teenage years, with some periods of abstinence whilst at Malmsbury and before the birth of your child.

28 Since you have been on remand on the current charges, I have been presented with clear drug screen results apart from prescribed methadone, although you admitted to Mr Newton that you have at times used non prescribed medication acquired from other prisoners.[11] You told Mr Newton that you self-medicated in order to be able to sleep.[12]

29 You have shown signs of depression and anxiety in the past, as indicated in a report by psychologist Gina Cidoni.[13] Ms Cidoni also referred to your use of drugs to boost self-confidence.[14] Ms Cidoni prepared her report for different proceedings prior to the current charge being laid, but the report indicates that you had been approached by the police regarding your role in the matter before the court and were very anxious in response to the investigation.

30 Mr Newton has opined that you suffer from an adjustment disorder with anxiety.[15] This is due to your situation in prison, fear of being assaulted whilst in prison, and your involvement in helping cover up the murder of Simone Quinlan. You report regular, vivid nightmares about the death of Simone Quinlan.

31 Mr Smallwood of counsel addressed the court on your behalf to express your strong feelings of remorse and your desire to apologise for the offence. You are conscious of the inhumanity and callousness of the events of 25 and 26 August 2015. You have acknowledged the pain and suffering Ms Quinlan's death has caused for her parents and friends, and especially her children. Mr Smallwood told the court that you have reflected deeply on your acts and accept responsibility for the role you played in providing assistance to Wayne Marmo and Brendan Neil. He submitted that your remorse is further evidenced by your plea of guilty that was entered at the earliest opportunity after the current charge was laid.[16] You are entitled to have the utilitarian value of your plea of guilty taken into account and I accept that you currently express remorse for your offending, although I am not convinced that your acceptance of responsibility or feelings of remorse have been long standing.

32 Luke Marmo, you were 24 at the time of the offending and are 26 now. Your relative youth is a consideration in determining an appropriate sentence. Although you had never been sent to gaol prior to committing the offence before the court, you have been remanded and sentenced to prison more recently for unrelated offending.[17] Mr Newton is of the opinion that your prospects for rehabilitation and for a productive life in the community are directly linked to your capacity to manage your substance abuse.[18] It is a positive note that you wish to pursue drug treatment in the future and that you managed a previous period of youth parole without incident. Your prospects of rehabilitation would be further increased were you to seek the support of your parents and family and avoid other drug users.

33 Mr Smallwood submitted that you have a strong commitment to being a good father for your daughter, and that Ms Kendall has been visiting you in gaol and exploring the possibility of reconciliation. Whether this is desirable will depend on the position of each of you when you are released. However, your desire to make up for past mistakes with your daughter may provide some incentive for your rehabilitation. Nevertheless, the report of Mr Newton makes clear the extent of the challenges you face in accepting the need to avoid drugs and alcohol if you are to make anything of your life in the future. I therefore consider that your prospects for rehabilitation are qualified by reference to your future willingness to actively pursue drug and alcohol treatment.

34 The impact of Simone Quinlan's death was expressed to the court through victim impact statements some of which were read aloud before me, and all of which were tendered at your plea. Lynda Quinlan, Simone's mother, articulated that in addition to her own grief, and that of her husband, they dread the prospect that Simone's sons will one day demand to know the truth about the circumstances surrounding their mother's death.

35 Further victim impact statements provided to the court echoed this theme and referred to the despair and loss suffered by the authors of those statements.[19]

36 Of course I am not sentencing you for the murder of Simone Quinlan and my acceptance of the content of the victim impact statements is qualified in that sense.

37 Nevertheless the charge of assist offender for the offence of murder is a serious crime.

38 It was the position of the Crown that you arrived at the house at some stage after the assault was already underway. After leaving, you returned with a jerry can of petrol, which you put into the utility knowing it was to be used to impede any investigation into the murder of Simone Quinlan, and would be used to incinerate her body.

39 There is no evidence before me that you were coerced into providing assistance. You assisted Brendan Neil over the course of a number of hours on the evening of the murder, and returned the next day to further conceal the crime by assisting in sanding the floorboards at the Killarney Drive premises. You deliberately and knowingly chose to help cover up a very grave crime.

40 The sentences I imposed on Brendan Neil and Wayne Marmo reflect the court's denunciation of their crime. Justice of Appeal Brooking in R v Kitchin[20] held that "assisting an offender is a more serious offence in a bad case of murder than in a not so bad case of murder."[21] You gave assistance in concealing a bad instance of murder, and had a degree of direct knowledge about the assault on Simone Quinlan. Simone Quinlan was known to be missing for some weeks before the location of her remains was disclosed to police, and that period of uncertainty was extremely painful for family and friends.

41 In Landmark v The Queen,[22] Weinberg JA emphasised the serious nature of charges of assisting an offender under s 325 of the Crimes Act 1958, observing that the conduct in the case before him (which was not one of murder) was designed to enable the perpetrator of that offence to avoid detection, and escape any punishment. He said

Conduct of this kind undermines and frustrates the proper administration of justice. As importantly, it has the potential to endanger members of the public by allowing violent offenders to remain on the streets. It must be discouraged and denounced in the strongest of terms.[23]

42 In determining an appropriate sentence, I have considered comparable cases under s 325 Crimes Act 1958 where the principal offence was murder, noting considerable variation in sentencing in part because it is not uncommon for assisters to become very important witnesses in the prosecution of the principal offender(s) to a crime. I acknowledge that I should consider, but am not bound by, current sentencing practices.[24]

43 The Crown referred to R v Richardson[25] as a comparable case, where a sentence of three years with a non-parole period of 1 year and 8 months was imposed upon a plea of guilty. In that case, the offender before the court assisted the principal offender to approach another person for help in disposing of a body in bushland, then participating in the disposal and later removing forensic evidence of the murder from carpet. I agree with the Crown that the case of Richardson has some comparable features to your case.

44 I have considered the sentence I imposed on DJ,[26] who also pleaded guilty to assist offender with respect to the same index offence. DJ had brighter prospects for rehabilitation at the time of his plea and a less significant history of offending. As already mentioned, DJ gave an undertaking to give evidence for the Crown and complied with his undertaking. DJ arrived at the Killarney Drive premises in the company of Wayne Marmo and TS, but he had no prior relationship with Brendan Neil or Simone Quinlan and was chiefly there as a friend of TS. His capacity to intervene was influenced by these factors and was diminished further when Wayne Marmo produced a gun. Although DJ spent longer in the company of the principal offenders and was more directly exposed to the offence, your moral culpability is increased by the absence of any mitigating explanation for your involvement. You acted from a misguided loyalty to Brendan Neil and Wayne Marmo, despite knowledge of the appalling crime committed against Simone Quinlan.

45 General deterrence, just punishment and denunciation are all relevant to your sentence. I also consider specific deterrence to be relevant in your case because of your tendency to commit offences when you abuse drugs and alcohol and because of the effect ongoing substance abuse has on your moral judgement.

46 The sentence I impose will reflect the gravity of your conduct, but should also facilitate your rehabilitation. This will only succeed if you avoid alcohol and methamphetamine, and properly address your substance abuse and addiction issues. I have considered the delay in bringing this proceeding as a matter in mitigation of sentence.

47 I am bound by the principle of parsimony under s 5(3) of the Sentencing Act 1991.

48 I am cognisant of the hardship occasioned by being housed in protection in prison and that you suffer from anxiety, although those factors attract little weight in all the circumstances of this case.

50 I sentence you to a term of imprisonment of 4 years with a minimum non-parole period of 2 years.

51 I am required under s 6AAA of the Sentencing Act 1991 to indicate the sentence I would have imposed but for your plea of guilty. But for your plea of guilty, I would have sentenced you to 5 years imprisonment with a non-parole period of 3 years.

52 I order that 291 days, not including today, spent in pre-sentence detention be entered into the records of the court as time already served.

53 I make the disposal order under s 464ZF sought by the Crown and order a forensic sample on the basis of the serious nature of the offence.

[1] DPP v Neil & Marmo [2017] VSC 761 (14 December 2017).

[2] Amended Summary of Prosecution Opening for Plea, dated 21 November 2017. Tendered as Prosecution Exhibit 1. ('ASPO')

[3] Outline of defence submissions on behalf of Luke Marmo, dated 24 January 2018. Tendered as Defence Exhibit 1.

[5] Report of Patrick Newton, dated 18 November 2017, tendered as Defence Exhibit 3; Report of Gina Cidoni, dated 3 March 2016, tendered as Defence Exhibit 4.

[6] Five drug screen results from 4 Nov 2017 - 10 January 2018. Tendered as Defence Exhibit 5.

[7] Wayne Marmo was found by a jury to be guilty of the offence of murder for his role assisting or encouraging the conduct of Brendan Neil at the 21 Killarney Drive premises.

[8] DJ gave evidence regarding Luke Marmo that he came while they were arguing and fighting and took off again after five or ten minutes. Jury Transcript, 8 May 2017, 325.

[9] Report of Patrick Newton, dated 18 November 2017 ('Newton Report').

[11] Mr Newton found that you showed no signs of psychosis. Newton report, [8].

[13] Report of Gina Cidoni dated 3 March 2016.

[16] ASPO [48]; defence submissions, [6(a)].

[17] I was informed that you were arrested on 11/1/16 and remanded in custody on charges determined on 1/4/16 which led to a sentence of six months imprisonment with 81 days PSD. After release on 11/7/16 you were further arrested on 28/9/16 and sentenced to 4 months with 58 days PSD and a CCO for 9 months. You were then released on 30/11/16 and arrested on 8/5/17 on the current charge whereupon you were remanded in custody in protection. You have some outstanding charges including breach CCO.

[19] Julie-Ann Glover, family friend; and a joint statement of Nathan Mitchell and Phoenix Quinlan-Mitchell, Simone's ex-partner and son; Marnie Quinlan, cousin were also read aloud in court. Some of the statements had been prepared for the sentencing hearing of the principal offenders and had to be read with that caveat.

[20] [2001] VSCA 66.

[22] [2015] VSCA 178.

[24] DPP v Dalgleish [2017] HCA 41.

[25] [2007] VSC 221.

[26] Imprisoned for a term of 362 days, followed by a Community Corrections Order for 18 months. See DPP v D J [2017] VSC 64.