DPP v Neil & Marmo [2017] VSC 761

1 Brendan Neil and Wayne Marmo, you are each to be sentenced for the murder of Simone Quinlan on 25 August 2015.

2 Brendan Neil, you pleaded guilty to murder on 24 April 2017 following pre-trial legal argument.[1] Wayne Marmo, you pleaded not guilty to murder, and, after a ten-day trial, were convicted of murder by a jury on 15 May 2017.

3 Simone Quinlan was 33 years old when she was killed.

4 Brendan Neil, the Crown Opening following your guilty plea described how Simone Quinlan was savagely beaten by you at your home at 21 Killarney Drive, Melton; and that at the time of the assault on her, you held the intent for murder, being an intent to cause really serious injury or death.

5 Wayne Marmo, you were present during the physical attack on Simone Quinlan and were found by a jury to have been criminally involved in Brendan Neil's conduct by encouraging or assisting that conduct.[2]

6 TS[3] and DJ[4] were also present during the attack on Simone Quinlan. At that time, TS was a short-term girlfriend of you, Wayne Marmo, and she had previously met Brendan Neil through you.

7 TS had known DJ for many years, but DJ had only briefly met you Brendan Neil, prior to the events on 25 August. His connection was to TS rather than to the pair of you.

8 TS and DJ each offered to give Crown evidence and provided statements to police. They were each called to give evidence before the jury in the prosecution of you, Wayne Marmo.

9 DJ had originally been charged with murder but was discharged at committal proceedings. After being released from prison he pleaded guilty to acting as an accessory after the fact to the murder of Simone Quinlan in relation to support provided to the pair of you in the disposal of Simone Quinlan's body and the destruction of evidence. He offered to assist the Crown and provided a statement about the circumstances of the murder and about Brendan Neil's conduct in prison. He was cross-examined by counsel for each of you in a pre-trial hearing.[5] He also gave evidence at your trial, Wayne Marmo. He received a reduced sentence because of his cooperation with the prosecution in the proceedings against each of you.

10 TS was never charged with any offence arising from the death of Simone Quinlan. TS was called by the Crown at committal and underwent cross-examination by counsel for each of you. She was also called at the trial of Wayne Marmo.

12 Wayne Marmo, after Brendan Neil had beaten Simone Quinlan to a point where she appeared dead or close to death, you assisted in her removal from the premises by helping load her into the tray of a Hilux utility and driving it away from the premises. You subsequently fired several bullets into the head of Simone Quinlan at Anthony's Cutting near Bacchus Marsh. You then disposed of her body by dumping it in a mineshaft in Kangaroo Flat and setting fire to it. TS and DJ were passengers in the Toyota Hilux utility when you drove away from Killarney Drive with Simone Quinlan on board, and when you shot her and disposed of her body.

13 The Crown have not been able to establish beyond reasonable doubt that Simone Quinlan was not already dead when she was shot by you Wayne Marmo, so your trial and conviction was based on your complicity with the conduct of Brendan Neil at Killarney Drive, Melton.

14 Luke Marmo, a friend to Brendan Neil and cousin to Wayne Marmo, has indicated an intention to plead guilty to being an accessory after the fact to the murder. I have yet to hear his plea in this matter. He was present for some of the events at 21 Killarney Drive and is said to have brought back a container of petrol shortly before Simone Quinlan was removed in the Hilux utility. He is also alleged to have driven away with you, Brendan Neil, from the Killarney Drive premises in a separate car after Simone Quinlan was loaded into the tray of the utility in readiness for Wayne Marmo to dispose of her.

15 Brendan Neil, although you did not go with Wayne Marmo on the trip to dispose of Simone Quinlan, you knew that Wayne Marmo had a sawn-off rifle and a can of petrol with him when he left Killarney Drive. You also agreed that Simone Quinlan had to be disposed of, which necessarily involved killing her if she was not already dead.

16 The partially burned corpse of Simone Quinlan was recovered by police on 25 September 2015 following receipt of information provided by TS. It showed evidence of blunt trauma and bullet wounds to the head. I will discuss the pathological evidence in more detail below.

17 The background to the offending has been set out by the Crown in an opening prepared for the plea and read out whilst both of you were present on 26 May 2017.[6] Each of you put forward submissions in writing and tendered other documents.[7] The Crown filed response submissions.[8] Although the hearing of Wayne Marmo's plea was adjourned to 20 July this year further plea submissions were received orally and in writing on your behalf, Brendan Neil, after the plea hearing conducted on behalf of Wayne Marmo.[9] Both of you were present for final plea submissions on 23 August 2017. Further written submissions were received on a discreet point of law in early December 2017.[10]

18 When describing the circumstances of the offending in my reasons for sentence, the primary sources I have relied on include; the prosecution opening for plea,[11] the depositions and exhibits where relevant, and evidence given at the trial of Wayne Marmo. I will not take facts into account in a way that is adverse to the interests of either of you unless those facts have been established beyond reasonable doubt.[12] Mitigating circumstances may be taken into account if established by either of you on the balance of probabilities.[13] In addition to the abovementioned sources, I have had regard to all materials tendered for each accused and the oral submissions and evidence called during the plea hearings.

19 Brendan Neil, you were 28 years of age at the time of the murder. You are a carpenter by trade but were unemployed at the time. You were living at 21 Killarney Drive, Melton ('the Killarney Drive premises') on a two-acre property after having separated from your former de facto wife, TD. Your four sons remained in the care of their mother after the separation. Your parents, Jeff and Christine Neil, were joint owners of the property at Killarney Drive and resided there in a separate dwelling. You were involved in an intimate relationship with Simone Quinlan for about four months prior to her death and she lived with you on and off during that time, but your relationship with her was volatile. Her lifestyle was drug-seeking and chaotic at that time, and, prior to moving in with you, she was homeless and had lost custody of her two children. Simone Quinlan was a heavy user of methamphetamine ('ice'). Each of you two, Neil and Marmo, were also heavy users of ice at the time of the events. Like so many serious violent crimes before our courts, ice abuse was a prominent factor, casting a pall over all involved in the crime.

20 Because of her drug use, Simone Quinlan had fallen out of regular contact with her family. She maintained a degree of contact with Nathan Mitchell who was the father of her five-year-old son. Her 13-year-old son lived with her parents.

21 Brendan Neil, your relationship with Simone Quinlan had soured by 25 August 2015 and in the preceding period it was characterised by jealous and controlling behaviour and violent outbursts. By the day of the murder you were especially angry that she had made a family violence complaint against you, believing it might impact on your family court proceedings regarding access to your children.

22 The family violence complaint included a report about an incident on 13 June 2015 when Simone Quinlan was taken for medical treatment by your mother late at night for an injury to her head that needed to be sutured. There was a subsequent incident at Jade Way, Hillside on 19 August 2015 when you threw a rock through the front windows of Tammy Newton's house whilst Simone Quinlan was taking refuge there. Police attended the Jade Way incident and Simone Quinlan made a statement that day to police about both incidents. She told police that you had hit her on the head with a baseball bat on the occasion when she needed her head sutured.[14] She said that she was very scared of you.[15] The police initiated a Family Violence Intervention Order ('FVIO') to protect her on the strength of her statement. Police invited you to attend for an interview about those matters on 20 August 2015 but you did not attend.

23 Brendan Neil, as well as blaming Simone Quinlan for unwanted police attention, you were upset that she had re-ignited contact with her ex-boyfriend, Danny Fisher, upon his release from prison. You believed that she and Fisher were using heroin together and that Simone Quinlan had stolen property from you to use for her own purposes or give to Fisher. You therefore held a number of grievances towards Simone Quinlan which motivated you to want to punish her. The Crown contend, and I accept, that it is an aggravating feature of your offending that you wanted to punish Simone Quinlan for involving police and invoking the family violence protection regime. Wayne Marmo, you were loyal to your friend Brendan Neil and you were prepared to involve yourself in the murder because of this loyalty.

24 The further factual circumstances outlined by the Crown are that on 24 August at 4.00 pm you, Brendan Neil, were seen by your father, Jeff Neil, outside the Killarney Drive premises demanding that Simone Quinlan tell you where she had put certain of your belongings. Your father intervened at that time. Wayne Marmo, you arrived shortly afterwards and went down to a creek or dam on the edge of the property towards Brendan Neil whilst your girlfriend, TS, stayed in the driveway. When the pair of you returned, Brendan Neil was carrying a large bag of valuables that had been hidden in the paddock, and Simone Quinlan was trailing along behind you both, dripping wet. Simone Quinlan told Jeff Neil that she had been pushed in the water.

25 Later that same night, around 10.00 pm, whilst still at the Killarney Drive premises, Simone Quinlan borrowed a car and used it to meet Danny Fisher at the nearby Melton Caltex service station. She complained to Fisher about your abuse of her, Brendan Neil, and said she wanted to get away from you and move in with Fisher to a friend's place in Gisborne.

26 After she returned to the Killarney Drive premises around 11.00 pm, Simone Quinlan and Danny Fisher continued to exchange intimate text messages, although the last few text messages from Fisher to Simone went unanswered. Fisher was concerned about her, and the following day, 25 August, he drove to the Killarney Drive premises around midday and knocked on the door. Brendan Neil while Fisher was there he observed curtains being moved aside and saw you look out, but no one came to the door. He pretended to be angry with Simone and demanded to see her. He waited for some minutes before purposefully knocking over some rubbish bins and driving away.

27 At 12.02 pm that day, Simone Quinlan contacted Constable Greenwood seeking to withdraw her family violence complaint and saying that the statement she made on 19 August 2015 was false. The call was made from your phone, Brendan Neil. You failed to attend another appointment with police over the same subject matter that had been arranged for 2.00 pm that day.

28 Later that afternoon, TS and DJ were with you, Wayne Marmo, when Brendan Neil phoned you. You agreed to meet him at the Killarney Drive premises. It is not known what exactly was said in the phone call, but there was already a plan on foot for you, Wayne Marmo, and the others to bring some stolen chainsaws to exchange with Brendan Neil for some ice. However, on arrival at the premises soon after the phone call, it was apparent that Brendan Neil, was angry with Simone Quinlan and she was being interrogated and accused of 'lagging'. TS and DJ sat at the kitchen table in an area that abutted the living room in an open plan living arrangement. You, Wayne Marmo, were also in the vicinity of the kitchen taking turns with TS and DJ to smoke ice supplied by Brendan Neil.

29 Wayne Marmo, you were in possession of a .22 rifle during the time you were at the Killarney Drive premises that day. You were occupied cutting down the barrel of the rifle in the vicinity of the kitchen during the period Simone Quinlan was being assaulted. You took that rifle with you later when you left Killarney Drive and used it to shoot Simone Quinlan.

30 Brendan Neil, your abuse of Simone Quinlan escalated over the period that Wayne Marmo and his associates were present in your house. TS said Simone Quinlan was in the bedroom when they first arrived, and you were shouting at her that she had "snitched or dobbed us all, dobbed him, in or dobbed us all in or something".[16]

31 You then forced her into the lounge room and proceeded to assault her in front of TS, DJ and Wayne Marmo. TS described your actions in these terms:

he was still raging off his head about her snitching or something about a window being broken and a restraining order or something. He was hitting her and, um, he taped her head up and ripped it off, like, not, torturing her, tormenting her, in a rage.[17]

32 TS describes how at first you hit her with your hands, and then you wrapped her head in tape and 'taped around her eyes, kissed her head and ripped it off'[18] and that 'while it was taped up [you] told her she looked beautiful like that... with the tape on her head, being a smart arse.'[19]

33 She said of you, 'he was hitting her, and... like, putting his knees into her, on top of her and hitting her and, um, he, like arguing with her....but she wasn't saying anything back.'[20] By TS's account, you were saying to Simone Quinlan 'that she's fucked up and that she's a snitch and, ...he can't see his kids or something.'[21]

34 The violence progressed further and TS gave evidence that you dragged her off the couch on to the floor, and were kicking her to the head and body. [22] She thought you were wearing boots at the time and the kicks had a lot of force such that she could hear them connecting with her head.[23] She said this happened too many times to keep track, and she saw blood on the floor, near Quinlan's head.[24]

35 TS testified that following the assault, you, Wayne Marmo, said to you, Brendan Neil,

something about that [Neil]'s got to get rid of her because, um, "if she snitched before I can imagine what she'd do now, like, if you go, took her to hospital or let her go or whatever", he [Marmo] goes "got to get rid of her otherwise if she snitched before it imagine what she'd be like for this, what will happen".[25]

36 Brendan Neil, the Crown accepted your plea of guilty on the basis that they could not prove beyond reasonable doubt that you attacked Simone Quinlan with a hammer to the head, although DJ gave evidence that you did. I therefore cannot sentence you on the basis that you attacked Simone Quinlan with a hammer. However, I am satisfied that by the time you ceased assaulting Simone Quinlan she was lying helpless on the floor, and that blood had pooled beneath her from injuries inflicted by you. She was obviously very seriously injured at that time and you found a sheet and wrapped her up in it near the front door to the house.

37 The Hilux utility that you, Wayne Marmo, had driven to the premises was reversed to the door of the house to facilitate the loading of Simone Quinlan into the tray area wrapped in the sheet. TS had by then taken the opportunity to go and sit in the passenger compartment of the utility, followed soon after by DJ who sat in the back seat.

38 Luke Marmo, who had attended the premises for a brief period, left and returned shortly afterward with a can of petrol which was placed on the rear passenger seat of the utility.

39 Simone Quinlan was loaded into the tray of the Hilux utility by the pair of you[26] on the understanding that you, Wayne Marmo, would transport her away from Killarney Drive and dispose of her.[27]

40 Although TS and DJ testified that Simone Quinlan appeared to be dead from the beating at Killarney Drive, I cannot be satisfied as to exactly what her condition was when she was placed in the utility, other than that she was at least very seriously injured and appeared not to be moving or speaking at that time.[28]

41 Brendan Neil, before Wayne Marmo and the others left, you suggested they hand over their mobile phones, promising to buy them new ones.[29] TS held onto her phone and used it to ring her son just after 8.00 pm shortly after departing Killarney Drive.

42 Wayne Marmo, you drove away with TS and DJ in the Hilux utility. Meanwhile, Brendan Neil, you left the Killarney Drive premises in a Suzuki Swift driven by Luke Marmo. You announced that you were going to a pub to put yourself on CCTV.

43 Wayne Marmo, after driving away you stopped the utility near Anthony's Cutting, Bacchus Marsh. Expressing concern that Simone Quinlan might be still alive, because you thought you saw the cover of the tray moving, you got out, lifted the cover and fired several shots into Simone Quinlan's head using the rifle that you had cut down that afternoon. You then got back in the driver's seat and drove on with TS and DJ, looking for a place to dispose of Simone Quinlan's body. You directed TS to throw out the used rifle shells at intervals along the way.

44 A stop was made at a service station at 9.46 pm and CCTV footage retrieved by police depicts the Hilux utility and you, Wayne Marmo, with your fellow passengers. You then drove on towards an area of disused mineshafts at Kangaroo Flat where you unloaded Simone Quinlan's body and dropped it down a mineshaft before dousing her body in petrol and igniting it. You then drove to a carwash at around 1.00 am and washed the tray of the utility with a pressure hose to remove blood.

45 At a later stage the utility was incinerated by you, Wayne Marmo, in the presence of DJ and TS.

46 The following day, on 26 August, Brendan Neil decided to hire a floor sander so as to remove bloodstains from the floorboards of his house. He enlisted your help Wayne Marmo in hiring the sander from Melton but this was unsuccessful so he asked his father to get the sander, making up an excuse for doing so. Brendan Neil, you and Luke Marmo sanded back the floorboards to remove traces of blood.

47 Brendan Neil, following the murder you sent a series of text messages about Simone Quinlan to her mother and to Danny Fisher in which you indicated that the relationship was over and that you assumed she had gone back to Fisher. Your purpose was to avoid coming under suspicion over Simone Quinlan's disappearance.[30] The content of those messages does you no credit. You certainly had no remorse for your crime at that time and were focused only on self-preservation.

48 Brendan Neil, the case against you for murder was put on a wider basis than the way the case was framed against Wayne Marmo. The Crown case against you was that you assaulted Simone Quinlan at Killarney Drive with the intention to cause really serious injury or death and you then entered an agreement, arrangement or understanding ('the agreement') with Wayne Marmo to dispose of Simone Quinlan, which necessarily involved killing her if she wasn't already dead.

49 Wayne Marmo, the case against you was put on a narrower basis due to the Crown acknowledging that Simone Quinlan may not have still been alive when you shot her. The issue for the jury in your trial was focused on whether they could be satisfied beyond reasonable doubt that you were complicit in the actions of Brendan Neil at Killarney Drive.

50 The Crown relied on your presence over the prolonged period of the attack on Simone Quinlan at Killarney Drive and your behaviour with the rifle during the attack, as well as what you said to Brendan Neil about having to get rid of her, showing your complicity with Brendan Neil's conduct. Your behaviour at Killarney Drive showed that you were involved in the murder by assisting and encouraging[31] Brendan Neil.

51 The Crown also relied on the agreement you entered with Brendan Neil that you would take Simone Quinlan away to get rid of her,[32] as being further evidence of your earlier state of mind and complicity with Brendan Neil's conduct towards Simone Quinlan at the Killarney Drive premises.

52 The human remains retrieved from the mineshaft were identified as those of Simone Quinlan. The remains were examined by Dr Jacqueline Lee, pathologist,[33] and Dr Soren Blau, forensic anthropologist.[34] Dr Isles gave evidence in place of Dr Lee at the trial of Wayne Marmo.

53 Post-mortem examination revealed a wound to the scalp associated with subscapular and galeal bleeding and an associated fracture to the skull in the front right parietal region. This injury was consistent with the infliction of blunt head trauma with non-specific features[35]

54 There were five gunshot entrance wounds to the back of the head and a single wound to the left orbital plate which may have been an entry or exit wound. The gunshot injuries to the head were each sufficient singly or in combination to cause death. The partial incineration of the corpse impeded precision about cause of death and about the likely effect of the blunt trauma to the head.[36]

55 The experts were unable to say from reviewing the autopsy evidence whether Simone Quinlan was already dead from blunt trauma to the head at the time the bullet wounds were inflicted. Dr Isles gave evidence that the blunt force trauma showed evidence of active circulation indicating the probability it occurred during life and before the shooting.[37] On a hypothesis that the blunt trauma to the skull occurred before the gunshot injuries, the blunt trauma might have been sufficient to cause death, but not necessarily so. The autopsy did reveal evidence of tape stuck to the deceased's head and charred onto one side of the face of the deceased.

56 Brendan Neil, in your police interview you lied about your involvement in the death of Simone Quinlan, saying that Wayne Marmo was the one who attacked her. You denied complicity in the decision to get rid of Simone Quinlan or dispose of her body. You said Wayne Marmo drove off with Simone Quinlan rolled up in a sheet in the tray of the utility and that you had not seen her since.

57 After you were charged with murder, the Crown allege that you took steps to influence potential witnesses. DJ made a statement and produced letters written to him by you when you were both in custody. Mark Dillon, another prisoner, gave evidence in a pre-trial hearing that you contacted him and offered assistance with a bail address if he would approach TS about not testifying against you.[38]

58 Brendan Neil, I am not able to treat this uncharged conduct as aggravating the crime of murder[39] but in combination with the lies told in your record of interview and other post offence conduct, it (redacted) showed absence of remorse at that time.[40]

59 Wayne Marmo, in your police interview you gave a false version about the events surrounding Simone Quinlan being taken from the Killarney Drive premises, asserting that Brendan Neil and DJ drove off in the utility whilst you left with TS in another car. You did not give evidence at your trial but relied on the earlier part of your police interview denying complicity with Brendan Neil in the assaults on Simone Quinlan at Killarney Drive. You said there that when you arrived at Killarney Drive, Brendan Neil had Simone Quinlan tied up on the couch, and was questioning her and hitting her and ended up throwing her on the floor. You said you told him to 'pull up'. You said Brendan Neil kept hitting Simone Quinlan and grabbed a hammer from a drawer and used it to hit her, before wrapping her in a blanket. You disputed saying the words attributed to you by TS to the effect that Simone Quinlan had to be got rid of.

60 At trial you did not dispute that Simone Quinlan was loaded into the tray of the utility and taken away from Killarney Drive by you or that you shot her and disposed of her body in the mineshaft at Kangaroo Flat. But you raised the possibility that it was the violent actions of Brendan Neil acting alone at Killarney Drive that caused her death, arguing that the Crown could not prove that she was alive when she was shot and that you should only be found guilty of attempted murder. You accepted before the jury that when you shot her, you were concerned that she might still be alive at that time.[41]

61 Ultimately, the jury were satisfied beyond reasonable doubt of your complicity with Brendan Neil's actions in the murder of Simone Quinlan.

62 Murder is a very grave offence as reflected in the maximum available sentence of life imprisonment. The conduct of each of you leads me to assess the objective circumstances of the offending, including the decision to destroy the body of Simone Quinlan,[42] as being a very serious example of the crime of murder. Of particular significance is the lengthy period over which Simone Quinlan was victimised and assaulted. The cruel and degrading nature of the attack at Killarney Drive is more strongly referable to you, Brendan Neil, although it also relevant to you, Wayne Marmo, because it occurred with your encouragement.

63 The nature of the attack at Killarney Drive was in effect an assault in company,[43] and the presence of the rifle meant that the combined behaviour of the pair of you was particularly egregious.

64 The fact that Simone Quinlan was being punished in response to a family violence complaint is also an aggravating factor particularly for you Brendan Neil but the attitude that she deserved punishment for 'snitching' to police is an aggravating factor for both of you. Simone Quinlan's ordeal must have been rendered all the more terrifying by the knowledge that you, Wayne Marmo, supported Brendan Neil's brutal treatment of her.

65 On the other hand, the precipitation of violence towards Simone Quinlan on 25 August by you, Brendan Neil, was the result of spiralling anger rather than calculated planning.

66 Wayne Marmo, your conduct over the course of the afternoon and evening came about in the context of constant ingestion of ice[44] and was partly responsive to what had been set in motion by your co-offender.

67 The agreement to get rid of Simone Quinlan after she was taken from Killarney Drive is an aggravating factor that relates equally to both of you. It was intended to benefit both of you by concealing what had taken place at Killarney Drive, and although you, Wayne Marmo, may have considered you were doing a favour for Brendan Neil, you presented yourself as taking charge when you drove away from Killarney Drive. The fact that Simone Quinlan's body was dumped down a mineshaft and set on fire is an aggravating factor for both of you.

68 Brendan Neil, you purveyed lies to Linda Quinlan and Danny Fisher in order to divert suspicion away from yourself, as well as involving others in attempts to remove blood by sanding the floor boards in your house. Wayne Marmo, you attempted to hire the sander for Brendan Neil and also set fire to the Hilux utility. The post offence behaviour of each of you shows that your focus was on self-preservation rather than feeling any remorse at that stage.

69 It was emphasised in oral argument by your counsel that the basis of the plea for each of you was necessarily different. Mr Johns SC submitted that there are difficulties in achieving parity of sentence given the separate and incompatible factual foundation that applies to each of you. A trial was run for Wayne Marmo, and the jury returned its verdict on the understanding that since the shooting could not be proven to have caused the death of Simone Quinlan, Wayne Marmo's criminal responsibility for murder hinged on the Crown establishing complicity with Brendan Neil's earlier conduct.

70 Ms Condon QC argued that although the Crown put their case for murder against you Brendan Neil on a wider basis, your participation should be assessed as being equal with that of Wayne Marmo.

71 She submitted that the court could not be satisfied that the beating at Killarney Drive, rather than the shooting was the factual cause of death, whereas if the court were entitled to find that your actions alone were the cause of death that would aggravate your sentence.

72 She argued that the court could not be satisfied beyond reasonable doubt that when you assaulted Simone Quinlan at Killarney Drive you had murderous intent.[45] She also submitted that the court could not be satisfied you intended to kill Simone Quinlan rather than merely holding an intention to cause really serious injury. However, she conceded that you ultimately reached agreement with Wayne Marmo that Simone Quinlan was to be disposed of, which included killing her if she was not already dead.

73 The Crown submitted that the court should find that your violent actions involved murderous intent being at the very least intent to cause really serious injury.[46]

74 In circumstances where the assault with the hammer is not relied on in your case, Brendan Neil, I accept that I could not conclude you held the intent to kill rather than to cause really serious injury at the time you assaulted Simone Quinlan at Killarney Drive but the evidence does support murderous intent being at the least an intent to cause really serious injury. I also do not accept that failure to be satisfied of intent to kill during the assaults at Killarney Drive is capable of mitigating sentence in the context of this case. Indeed it is not always the case that the distinction is treated as mitigating.[47] In the present case, the focus on factual causation as a matter favourable to you Brendan Neil appears overstated. The prospect that Simone Quinlan may have been still alive when you agreed that Marmo had to get rid of her, can hardly be seen as a matter in mitigation. TS gave evidence that you said to Wayne Marmo towards the end of the incident at Killarney Drive 'that's it, take it away' or 'get rid of it'.[48]

75 Ms Condon QC also argued that the court could not be satisfied beyond reasonable doubt that when Wayne Marmo took Simone Quinlan away with his gun and the tin of petrol, that you Brendan Neil, anticipated the exact means by which Simone Quinlan was to be disposed of and that if the brutality and manner of disposal and subsequent incineration of Simone Quinlan were regarded as aggravating the crime, that specific aggravating conduct should only be attributed to Wayne Marmo.

76 I accept that Wayne Marmo took control of the physical aspects of disposing of Simone Quinlan and that those actions impact the extent to which his overall role can be seen as subordinate to yours. But since you had reached agreement that Simone Quinlan had to be got rid of, the objective gravity of your crime does not depend on whether you anticipated exactly how the disposal was to be carried out. I should add for the sake of clarity that I am satisfied beyond reasonable doubt that both of you intended the petrol be used towards the disposing of Simone Quinlan, and that when you agreed that Wayne Marmo should take her away and get rid of her it was not within your contemplation that she should remain alive.

77 Ms Condon QC also argued on your behalf Brendan Neil that the court should find Wayne Marmo had his own motives to punish Simone Quinlan for 'snitching' because of concern about being exposed for other criminal offending by the group.[49] She referred to Brendan Neil's comment to Simone Quinlan, 'tell Wayne what you've done, talking to the jacks'.

78 Wayne Marmo, your counsel sought to persuade the court that it was more likely that Brendan Neil's actions were the factual cause of death. He submitted that in your case the court could use the evidence showing that Brendan Neil wielded a hammer during the assault, because it made it less likely that the subsequent shooting caused death. The evidence as to Brendan Neil attacking Simone Quinlan with a hammer was admitted in your trial. However, this submission does little to advance an argument for a reduction in moral culpability in circumstances where you shot Simone Quinlan, in the belief that she might still be alive and in light of your earlier complicity with Brendan Neil's conduct.

79 It was also submitted for you, Wayne Marmo, that I could not find beyond reasonable doubt that there was a motive for the attack that was personal to you regarding the need to avoid being exposed for other criminality.[50] I agree with this, but I am of the view that under the code you lived by at the time, it was regarded as unacceptable by both of you for Simone Quinlan to 'snitch' to the police.

80 I doubt that you, Wayne Marmo, would have independently instigated the attack on Simone Quinlan in response to her contact with police. In my view you were motivated to show to Brendan Neil that you were staunchly supportive of his punishment of Simone Quinlan for snitching. This culture of punishment for 'snitching' must be denounced.

81 I am satisfied beyond reasonable doubt, Wayne Marmo, that you said the words attributed to you by TS,[51] and I regard that finding as logically connected to the jury's verdict in your trial.

82 Mr Johns SC argued that even if the court accepted that the words referred to by TS were said by you, the court could not safely conclude that they preceded any further assaults by Brendan Neil. I accept that it is not possible to be certain of the timing of the comments, except that Simone Quinlan must have already been seriously assaulted by the time the words were said given the content of the words and the evidence of TS about the sequence of events.

83 Mr Johns SC said the court should be satisfied that at some stage you said 'that's enough' or 'pull up.'[52] Accepting that such words were uttered, the context of any such comment was not inconsistent with the jury's finding that you encouraged and were complicit with Brendan Neil's actions at Killarney Drive.

84 Mr Johns SC argued that you, Wayne Marmo, deserve a lesser sentence than your co-accused because it was Brendan Neil who launched the attack on Simone Quinlan and you were subordinate to him, and although your encouragement and assistance at Killarney Drive formed the basis of your offending, you were relatively passive at Killarney Drive. He submitted that there was an appreciable difference in the moral culpability between yourself and Brendan Neil.

85 He pointed to the fact that Brendan Neil supplied you with drugs at relevant times, showing your subordinate role. You were younger than Brendan Neil, who had achieved a degree of material success, and was in a position to decide who came and went from his premises at Killarney Drive.[53] He also referred to Brendan Neil's actions before departing Killarney Drive as showing his dominance over others present - including demanding their phones,[54] arranging to be taken to a pub to appear on CCTV, and questioning whether TS and DJ could be trusted.[55]

86 The Crown agreed that I should find that you were subordinate to Brendan Neil at Killarney Drive, because Brendan Neil instigated the violence and created the circumstance where Simone Quinlan was later taken away. But it was also submitted by the Crown that I should find that the two of you were equally responsible for the decision to dispose of Simone Quinlan[56] and to destroy her remains and that you, Wayne Marmo, took it upon yourself to physically deal with Simone Quinlan which ultimately involved the shooting and disposal in the mineshaft.

87 Brendan Neil, I am satisfied beyond reasonable doubt that you were the dominant actor at Killarney Drive regardless of where death actually occurred. Simone Quinlan was in a relationship with you, it was you who initiated the violence and who made Simone Quinlan the target in your house that day.

88 Wayne Marmo, I consider that your role at Killarney Drive was subordinate to Brendan Neil in the attack on Simone Quinlan. It is an indication of your subordinate role that you took on the job of disposing of Simone Quinlan after what had happened at Killarney Drive.

89 But the pair of you are equally to blame for the decision to get rid of Simone Quinlan - a decision which was made when she was in fact either very seriously injured or already dead.

90 Wayne Marmo, despite your lesser role in instigating the violence towards Simone Quinlan at Killarney Drive, your conduct in carrying out the shooting, and disposing of Simone Quinlan, although not established as being destructive of life, was nevertheless an extremely callous act.

91 Brendan Neil you are aged 31 years, and were 28 in 2015. You are the youngest of three children to Jeff and Christine Neil.

92 Your early life was uneventful. You left Mowbray College, Caroline Springs at the end of year 11, to take up a four-year carpentry apprenticeship with a construction company. Your first employer was impressed by your work ethic and you remained friendly with him after you qualified as a builder and moved on to other work.

93 You gained employment in the construction industry, working hard on a number of major projects for large companies. You often worked six or sometimes seven days a week to deal with your mortgage, in the belief that you should work hard during your youth whilst you were physically fit. You worked in this way for several years.

94 You had met your former de facto wife when you were aged 17 and commenced living with her in 2005. You were together for nine and a half years during which you and your partner produced four sons together. In 2011, you worked on the Wonthaggi Desalination project for 18 months and had to live apart from your family in Kilcunda. You tried to save money to better provide for your growing family but began using methamphetamine sporadically at this time. In 2012, you found construction work closer to home and decided to buy the Killarney Drive premises jointly with your parents. By 2013, your de facto relationship had become strained and you were prone to vent your anger and frustration on your partner. Your employment was interrupted by a short prison sentence for an offences committed whilst driving. After your release you worked for casual labour hire companies.

95 A psychological report from Stephen Gault[57] was tendered at hearing. You conceded to him that your working hours left little time for attending to your relationship with your partner and trust issues caused it to founder in early 2014. Your former partner obtained a FVIO and re-located with the children. You felt ashamed by the breakup of your family and lost motivation. Your commitment to work dwindled away. Mr Gault opines that you likely suffered a major depressive episode at that time. You took refuge in methamphetamine abuse. You pursued access to your children through the family court after a distressing period of being denied access.

96 Through 2014 and 2015 your lifestyle became focused on daily methamphetamine use, leading to association with other drug users and trading in drugs and stolen goods to support your addiction.

97 You have said to Mr Gault, 'drugs ruined my life and ruined the person I was. I lost the respect I had for people.' You acknowledged that ice allowed you to ignore the consequences of your actions.

98 Mr Gault found that at the time of the offending, you met the criteria in the DSM-V for Stimulant Use Disorder but that this was in full remission, in a controlled environment.[58] Since being remanded in prison, you have been abstinent from drug use and this has been substantiated by a number of drug test results.

99 Mr Gault assessed your risk of future violent offending to be substantially reduced only if you are able to stay away from drugs, and if you maintain the stability you are currently demonstrating in custody.

100 He identified as preventive factors your lack of a significant criminal record prior to your methamphetamine addiction, your aversive reaction to prison, your abstinence from drugs in gaol, and your willingness to seek professional help in the future.

101 Also that you have strong family support and a work capacity to be resumed at the end of your sentence. However, he found you to have a low capacity to cope with personal crises with the concomitant risk of future relapse into substance abuse.

102 Mr Neil, your criminal history is fairly limited. You were convicted and fined in 2012[59] for using a carriage service to harass a person in relation to a dispute over an online purchase. You were sentenced at Ballarat County Court on 5 June 2013 to six months imprisonment (of which three months was suspended for 18 months), for reckless conduct endangering life and fail to stop a motor vehicle. This sentence reflects the outcome of an appeal from a higher sentence imposed in the lower court. You had fled police at high speed in your car. That was your first and only custodial sentence and you were released in September 2013.

103 There was also a relevant appearance on 29 April 2015 at Sunshine Magistrates' Court when you were placed on a 15-month Community Corrections Order ('CCO') in relation to an unlawful assault on your former de facto wife at Rosebud the previous year, and for persistent contravention of a FVIO. The incident of unlawful assault in 2014 led to the imposition of the FVIO which you then breached. There was other material in the depositions indicative of family violence in your relationship with your former partner, as well as the uncharged allegations of previous violence towards Simone Quinlan. I have concentrated on your proven criminal record which is not extensive, noting however that you are unable to rely on previous good character. I also note that you were undergoing a CCO at the time of the current offending.

104 In your favour, since being remanded in custody, your family of origin - who are law abiding members of the community - have continued to visit and support you. You have undertaken some self-improvement courses on remand.

105 The court received a number of personal references on your behalf, including from family and friends who were present during proceedings and are prepared to continue to support you. Your previous employer, Mr Bourke, observed in recent visits with you that you expressed self-disgust and remorse for your crime.

106 Ms Condon QC relied on your plea of guilty as showing a shift in your attitude towards greater insight and submitted that remorse could be found as a result of your plea (redacted). This was also said to be evident in the testimonials put forward on your behalf and in the report of Mr Gault. She submitted that whilst your conduct prior to entering your plea of guilty detracted from findings of remorse, your attitude had changed since pleading guilty and you should be given credit for this.

107 Your counsel also relied on the utilitarian benefit flowing from your plea of guilty.[60] Mr Doyle accepted that some benefit should flow from your plea of guilty although it was a late plea made only after pre-trial rulings and in light of a strong Crown case. That said, in my view the utilitarian benefit for the community from a plea of guilty to a crime as serious as the crime of murder cannot be overstated.[61]

108 I accept that there is evidence of developing insight and remorse in your recent behaviour but you will need to fully confront your past behaviour including facing up to the damage wrought by male partner violence.

112 Ms Condon QC drew attention to your well-functioning lifestyle before the demise of your long term de facto relationship and submitted that the ongoing support of friends and family will be vital to your ultimate rehabilitation, despite their understandable disappointment in you. It is apparent from the material before the court that you were able to establish yourself in the building trade and provide for your family in a material sense through your own endeavors before your descent into drugs and crime.

113 In summary, notwithstanding the seriousness of your crime, and the remorseless behavior that preceded your plea, I consider that there are reasonable prospects for rehabilitation at the end of the lengthy sentence I am bound to impose.

114 I base this finding on the matters put forward by Ms Condon QC, including that as part of your decision to plead guilty, you have developed some degree of insight and remorse, you have a limited criminal history, a good employment history, and strong family and social support available to you, and you currently appear to recognise that your reformation will only be achieved if you pursue total abstinence from substance abuse.

115 Wayne Marmo, you are presently aged 26, and were 23 at the time of the offending. As such you are significantly younger than Brendan Neil.

116 You have not been favoured with many opportunities in life, although you have the love and support of each of your parents and your older sister.

117 Your father is of Maltese background and works as a meat process worker. He separated from your mother when you were 18. You had a close relationship with your paternal grandparents during your childhood.

118 Your mother is of Koori background and you maintain a positive connection to your aboriginal heritage. Your mother attended court at various times in support of you.

119 Your sister, aged 30, works in juvenile justice and has been and continues to be a strong support for you. Your older brother is in prison interstate.

120 You grew up in St Albans and the family moved to Melton in 2013.

121 You went to St Albans Secondary College to year 9 but were injured in a dirt bike accident and missed much of that year of schooling. You attended the Koori program at Sunshine Technical School in year 10.

122 Unfortunately, you were introduced to amphetamines in a family setting at around the age of 16. You also abused alcohol in your teen years, and both alcohol and drugs have been a constant in your life since then.

123 You tended to play up in secondary school and struggled to obtain literacy and numeracy. You worked for a while in roof tiling, bricklaying, meat process work, and labouring. In the year or two before the offending your drug use escalated, you lost motivation and sometimes failed to meet the requirements for Centrelink payments.

124 You had a number of 'on and off' relationships, and there is a 2 year old daughter in Queensland who you do not see. Your relationship with TS was of relatively short duration.

125 You already have a history of offending despite being fairly young, although you have never been sentenced to a term of imprisonment before. Putting aside your children's court appearances, you were dealt with for burglaries, thefts and related charges in 2011-2014 and placed on non-custodial corrective orders. Your compliance with those orders was poor. On 18 May 2015 you were placed on a 2-year Community Correction Order for unlawful assault on a former partner, threat to kill, car theft, prohibited person possess a firearm, possession of cartridge ammunition without a permit, and drive whilst disqualified. You were undergoing that CCO at the time of the offending in the case before me.

126 The court received testimonials from a social worker from the Victorian Aboriginal Health Service Co-operative, and from your aunt and sister.

127 As with Mr Neil, the continued support of family and social workers will be vital to your rehabilitation.

128 On 10 July 2017, you were assessed by neuropsychologist Ms Lofthouse, who provided a report.[62] On 20 July 2017, Ms Lofthouse gave evidence before me in your plea hearing. She found on testing that your general intellectual function was significantly below average, within the extremely low range with poor language and problem solving abilities, attention deficits and slowed processing which she considered, along with a low capacity for abstract reasoning, was indicative of moderate executive dysfunction.[63] She opined that your profile found on testing put you at risk of making poorly considered decisions. However, on questioning she conceded that your ingestion of prescribed methadone on remand could have influenced test results regarding speed of information processing.

129 Ms Lofthouse referred to possible episodes of brain trauma based on the history of various events recounted to her, including your premature birth, but no medical records were available to her to do other than speculate as to the reason for your poor performance on testing. There was reference to a motorcycle accident at age of 15 years that led to orthopaedic injuries. You were also involved in a collision in 2015 a week after the murder of Simone Quinlan, when you crashed the car that you were driving, resulting in reported loss of consciousness.[64] Self-evidently, any brain injury that may have resulted from that incident cannot have contributed to the offence before the court. Whether you received a brain injury in that incident is not clear from the materials before me but you suffer chronic leg pain from injuries and have been prescribed methadone to address pain management in prison.[65] You have also identified with symptoms of depression and anxiety on self-report of psychological functioning in response to questioning.

130 Ms Lofthouse also made reference to your previous lifestyle of daily drug and alcohol use since the age of 16 and the possible contribution of substance abuse to your low intellectual functioning.

131 She opined that whatever the cause of your mild to moderate intellectual dysfunction, it will likely impinge on your ability to fully function in the future and will be made worse by future drug and alcohol use.[66]

132 She opined that rehabilitation will be difficult for you and improvement will only occur if all of your risk factors are addressed in a holistic fashion with a long term approach. Ms Lofthouse also suggested that you will experience greater hardship in prison as a result of your intellectual and psychiatric issues.[67]

133 Mr Johns SC sought to rely on the evidence of Ms Lofthouse for a finding that Verdins[68] limbs one, three and four were engaged.[69]

134 Mr Doyle disputed that Verdins principles are relevant to explain or mitigate your offending. He submitted that the court could not be satisfied on the balance of probabilities that your low intellectual functioning as found on testing by Ms Lofthouse causally contributed to the decisions you made at Killarney Drive or afterwards on 25 August 2015.

135 Having heard Ms Lofthouse cross-examined, I agree with the Crown that Verdins is not applicable to mitigate your offending. The link between the offending and the assessment of your likely pre-morbid intellectual functioning is too tenuous.[70]

136 However, I accept that the court should recognise in a more general sense the lifelong disadvantage you have suffered and your low level of education and intelligence as contextually relevant to assessment of your moral culpability.[71] In my view, your background made you susceptible to ingratiating yourself with Brendan Neil by offering your encouragement and assistance.

137 Mr Johns SC also relied on the evidence of Ms Lofthouse to argue that Verdins limbs five and six applied to you.[72]

138 Mr Doyle responded that there was no evidence to explain how your low intellect would contribute to a more burdensome prison term for you than for other prisoners.[73]

139 In my view, regardless of whether Verdins factors five and six are strictly applicable to you, which is doubtful, it is likely that a lengthy term of imprisonment will further entrench you in a lifestyle of disadvantage and entrench your feelings of worthlessness. Your physical injuries and chronic pain will render prison more burdensome at least in the foreseeable future. It will likely be challenging for you to obtain benefit from programs and treatment in prison.

140 It was conceded on your behalf, Wayne Marmo, that the manner in which you disposed of Simone Quinlan aggravates your offending and detracts from a finding that you were remorseful at that time.[74] It was submitted however, that there is recent emerging evidence of remorse.

141 I accept that there are glimmers of remorse evidenced in the personal references tendered on your behalf and the report of Ms Lofthouse. Mr Johns indicated that your conscience is deeply troubled by what you did to Simone Quinlan, as it should be.

142 Mr Johns SC also emphasised the importance of your relative youthfulness at the time of the offence as a factor in mitigation. Whilst youthfulness is a factor that deserves weight in your case, Wayne Marmo, the seriousness of the offending means that less emphasis can be given to that factor than might be so for less grave offending.[75]

143 Your counsel also submitted that there is a prospect that your learning difficulties uncovered in neuropsychological testing can now be addressed. You told Ms Lofthouse that although you have never committed to treatment programs in the past you are now ready to do so.[76]

144 Mr Marmo, it was submitted on your behalf, and I do accept, that although you pleaded not guilty, your trial was run economically and the issues for the jury were confined. You made a number of formal admissions to expedite the trial. However, you are not entitled to the degree of mitigation that would flow from a plea of guilty.

145 Mr Marmo, you participated in the current offending whilst on a CCO for offences including a firearms offence. Whilst this is discouraging, your prospects for rehabilitation are reasonable if, and only if, you remain drug free, develop vocational skills and pursue every opportunity for structured professional support. Whilst it might be thought that your prospects for rehabilitation are less promising because of your long history of drug and alcohol abuse, your relative youthfulness permits the view that with appropriate supervision and support, you could overcome these obstacles. On the positive side, it appears that your previous partner, Brooke, has renewed contact with you and is helping motivate you to rehabilitate.[77] I therefore allow that your prospects for rehabilitation at the conclusion of a lengthy sentence are reasonable.

146 The court is required to ensure that any disparity in the sentence imposed on each of you is justified by reference to your roles in the offence, your prior criminal history and personal circumstances. In Kelly v R,[78] the court noted that despite the important notion of equal justice between offenders grounding the principle of parity, considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal.[79]

147 Often as in this case there are signposts pointing in different directions when assessing parity considerations. The Court of Appeal in Kumas v R[80] said:

Of course, parity operates as a check upon the overall sentencing process. The task of a judge in sentencing co-offenders is to discern real and substantial grounds for distinguishing between them. Any significant disparity should be capable of a rational explanation, but precise mathematical evaluations of debits and credits between offenders is not only impossible to achieve, but contrary to the methodology of intuitive synthesis.[81]

148 I have referred to my findings as to the roles played by each of you above. In considering parity of sentence I must also take into account differences in your background, prior history, future prospects, remorsefulness and the response to the charges.

149 In summarising these factors, I regard Brendan Neil's role in the offending as more morally blameworthy, and I consider that his more extensive post offence conduct demonstrated a concerning absence of remorse prior to the entry of a plea of guilty. However, his acceptance of responsibility and expression of remorse is currently more advanced since entering his plea. Brendan Neil's prospects for rehabilitation appear reasonable because of his proven abilities in the past, his limited antecedents and his behaviour in prison. Wayne Marmo on the other hand is younger and must be credited with the potential for personal growth that springs from youth.

150 Wayne Marmo's comparative youth, low intelligence and less advantaged background, together with his subordinate role at Killarney Drive provide a basis for some disparity in sentencing. My findings as to overall moral blameworthiness relating to each of you have also influenced my findings about your prospects for rehabilitation.

Comparable cases and current sentencing practice

151 The parties referred the court to comparable murder cases and provided charts summarising murder sentences and the facts grounding those sentences. The court should pay regard to current sentencing practice without being constrained by it.[82]

152 The cases appeared to fall into the following broad categories: cases involving domestic or relationship killings;[83] cases involving a background of avoidance of family court orders or the family violence protection regime;[84] cases involving a background of punishment for informing to police;[85] cases where the victim was subjected to very brutal or protracted violence;[86] and cases where destruction of the body and post offence conduct was emphasised as an aggravating feature.[87] Some cases fell into more than one of the abovementioned categories.

153 None of the cases appear strongly comparable although R v Potter[88] and DPP v Gibson[89] involve similar features to the matters before the court.

154 The case of R v Spence[90] is also comparable to some degree, although Croucher J said there when asked to consider an array of comparable cases, including some already mentioned:

In sentencing it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And in any event, sentences are not precedents to be distinguished and applied.[91]

155 I have had regard to sentencing statistics for murder captured in the Sentencing Advisory Council Sentencing Snapshots and the Victorian Sentencing Manual.[92]

156 Before moving to sentencing the pair of you for the murder of Simone Quinlan, it is important to reflect on the impact of your crime. First and foremost, you took away Simone Quinlan's life. Punishment for the crime of murder is designed to emphasise the sanctity of human life. Furthermore, the impacts of the crime of murder are far reaching. The impacts are felt by friends and family and the broader community.

157 Victim impact statements were received from Lynda Quinlan, Troy Quinlan, Kirsten Saunders, Julie-Anne Glover, Nathan Mitchell and Marnie Quinlan.

158 Linda Quinlan, mother of Simone Quinlan, spoke on her own behalf and that of Wayne Quinlan, about the harrowing period when Simone was missing and the enormous pain that has not left them since learning of the death of their daughter. Although Simone's two sons did not live with her, they were loved by their mother and have suffered greatly as a result of her death. The emotional toll on both of Simone's parents has been enormous, especially upon learning of their daughter's suffering.

159 Troy Quinlan, Simone's brother, and Kirsten Saunders, his partner, spoke of the family's regret that their attempts to help Simone failed. Their reality has been irreparably altered by what was done to Simone.

160 Nathan Mitchell, father of Simone's younger son, struggles to stay strong while looking for the words to explain to his son what happened to his mother.

161 Marnie Quinlan, cousin, said she will never come to terms with what happened to Simone and Julie-Anne Glover has shared the pain suffered by Simone's family.

162 In addition to the grief and suffering described by friends and relatives of Simone Quinlan, the impact of your crime is far wider. It touches the community as a whole when a young woman is horribly killed and her body callously disposed of. In this case, the suffering of friends and family was made worse by the period of uncertainty before learning of Simone Quinlan's fate.

163 The court recognises that no sentence will seem adequate punishment in the minds of those who knew and loved Simone Quinlan. The court must impose just punishment that balances all of the factors required by law to be recognised in sentencing.

164 In sentencing the pair of you, denunciation of your conduct is an important consideration. I must impose a sentence which gives weight to protection of the community and deters others from crimes of this nature. The family violence background to the crime requires the imposition of a sentence that deters others from disregarding the legal protections available to protect women from domestic abuse.[93]

165 The lifestyle the pair of you were engaged in at the time of the offending raises the need for some consideration of specific deterrence, although this factor requires less weight than the other purposes of sentencing in light of the lengthy sentences to be imposed.

166 I have taken into account all the purposes of sentencing in fixing the head sentence and non-parole period, including general and specific deterrence, denunciation protection of the community, just punishment and rehabilitation.[94] I must also impose sentences which are proportionate to the nature and gravity of your crime,[95] and that takes into account the principle of parsimony.[96]

167 In respect of you, Brendan Neil, your prospects for rehabilitation are reasonable as long as you learn to manage your emotions and continue to remain abstinent from drugs. However, it must also be acknowledged that it was your behaviour that precipitated the attack on Simone Quinlan against a background of family violence.

168 Wayne Marmo, your relative youthfulness at the time of the offending is a factor relevant to your prospects for rehabilitation even though your past lifestyle suggests that rehabilitation will be challenging for you.

169 In arriving at a just sentence, I have endeavoured to weigh all the matters put by your counsel and by the Crown in respect of each of you individually, including your role in the commission of the crime and matters personal to each of you.

170 Brendan Neil, I sentence you to 26 years for the murder of Simone Quinlan. I fix a minimum non-parole period of 22 years. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but your plea of guilty I would have imposed a sentence of 28 years with a minimum of 26 years.

171 I declare 690 days in pre-sentence detention, excluding today.

172 Wayne Marmo, I sentence you to 24 years for the murder of Simone Quinlan. I fix a minimum non-parole period of 20 years. I declare 769 days in pre-trial detention, excluding today.

173 I make the forfeiture order and the disposal order sought by the prosecution.

[1] A plea offer was made in writing on 19 April 2017 following certain preliminary rulings. The offer was accepted by the Crown on 20 April 2017.

[2] Although the jury were entitled to find that Wayne Marmo was criminally involved by intentionally assisting, encouraging or directing the commission of the offence, the Crown focused in their closing argument on encouragement or assistance.

[3] Pseudonym order, dated 3 May 2017, in the matter of DPP v Wayne Marmo.

[4] Pseudonym order, dated 15 December 2016, in the matter of DPP v DJ.

[5] In preliminary argument, 22 March 2017.

[6] Summary of Prosecution Opening for Plea, 19 May 2017.

[7] On behalf of Brendan Neil: Outline of plea submissions on behalf of Brendan Neil, 25 May 2017, chronology, psychological report of Stephen Gault, statement of Brendan Neil, character references, gaol certificates, urine sample results, restraining order, and table of comparable cases. On behalf of Wayne Marmo: Outline of Submissions for Plea dated 18 July 2017; Chronology of events, 19 July 2017; Report of Jane Lofthouse dated 11 July 2017; Character references from Tracey Meehan, Pauline Jekovski, Denise McGuiness.

[8] Crown plea submissions in the matter of DPP v Brendan Neil, 26 May 2017; Crown plea submissions in the matter of DPP v Wayne Marmo, 19 July 2017.

[9] Outline of further plea submissions on behalf of Brendan Neil, 16 August 2017.

[10] Written submissions received from the Crown on 5 December 2017 and from Brendan Neil on 6 December 2017 as to the application of Semaan v R; R v Semaan [2017] VSCA 261 to submissions as to post offence conduct.

[11] Summary of Prosecution Opening for Plea, 19 May 2017.

[12] In the case of Wayne Marmo, my factual findings must be consistent with the jury verdict.

[13] R v Storey (1998) 1 VR 359.

[14] Simone Quinlan told medical staff at the time of the incident that she fell and hurt her head on a rock in the garden. There was other evidence of reports to trusted friends that in fact Brendan Neil assaulted her with a baseball bat.

[15] Statement of Simone Quinlan, 19 August 2015, Depositions 1015.

[16] Trial transcript in the matter of DPP v Wayne Marmo, 4 May 2017, 150 ln 30 - 151 ln 2.

[26] Summary of Prosecution Opening for Plea, 19 May 2017, [30]. Mr Johns conceded the probability that his client helped load Simone Quinlan into the utility.

[27] Her body was to be disposed of regardless of whether she was dead or alive at the point of departure.

[28] Statement of TS, 4 October 2015, Depositions 352, [17].

[29] Statement of TS, 4 October 2015, Depositions 353, [22].

[30] Brendan Neil told Fisher in derogatory terms that Simone had left him and that they should 'enjoy their lives together'. He told Lynda Quinlan that he and Simone had split up a month ago and that he had not seen her since.

[31] Framed as assisting encouraging or directing but the Crown went to the jury in closing emphasising encouragement and assistance.

[32] Which necessarily involved killing her if she was not already dead.

[33] B Med Sci, MB BS (Hons)(Tas), FRCPA, DMJ (Path); Head of Forensic Pathology, Victorian Institute of Forensic Medicine.

[34] BA (First class), MSc in Osteology and Paleopathology, and PhD in Osteoarchaeology; Forensic anthropologist at Victorian Institute of Forensic Medicine for 12 years, with 15 years of experience in recovery and analysis of human remains both in Australia and overseas.

[35] Statement of Dr Isles dated 15 March 2017, 2.

[36] Because much of the organic matter inside the head was missing.

[37] Trial transcript in the matter of DPP v Wayne Marmo, 5 May 2017, 254, lns 3-8.

[38] I am not satisfied beyond reasonable doubt that Brendan Neil intended that TS be threatened with harm for the reasons put forward in oral argument by Ms Condon QC and in the Outline of Plea submissions on behalf of Brendan Neil, 25 May 2017 [12].

[39] Semaan v R; R v Semaan [2017]VSCA 261 [91-92]. See also, Crown Plea submissions regarding post offence conduct, 5 December 2017 [1], [2].

[40] A concession was made by counsel for Brendan Neil that the conduct was demonstrative of absence of remorse at the relevant time of that conduct. See, Outline of further plea submissions on behalf of Brendan Neil, 6 December 2017.

[41] Mr Johns argued on the plea that a belief that Simone Quinlan was probably dead was not inconsistent with a concern that she might not be.

[42] DPP v England [1999] VSCA 95; (1999) 2 VR 258; R v Bayley [2013] VSC 313 (19 June 2013) [15].

[43] R v Bradley [2015] VSC 768 (22 December 2015) [22].

[44] It should be noted that the fact of being affected by drugs is not a mitigating circumstance.

[45] Ms Condon QC argued that her client's plea to murder left open two alternative circumstances where Brendan Neil participated in the murder, and that it was open to the court to conclude that he did not act with murderous intent (intent to kill or cause really serious injury) at Killarney Drive. Plea transcript, 23 August 2017, 103-4. Mr Doyle argued in response that Brendan Neil plainly acted with murderous intent at Killarney Drive. Plea transcript, 23 August 2017, 118-19.

[46] Summary of prosecution opening for plea, 19 May 2017 [2], and Crown plea submissions in the matter of DPP v Brendan Neil, 26 May 2017, [1].

[47] Walters v R [2013] VSCA 164 (20 June 2013) (Priest JA), [25-27].

[48] Crown plea submissions in the matter of DPP v Brendan Neil, 26 May 2017, [3]; Trial transcript in the matter of DPP v Wayne Marmo, 4 May 2017, 187.

[49] Ms Condon referred to TS giving evidence that Neil said Quinlan had "dobbed us all in", trial transcript, 4 May 2017, 151 ln 4. See also evidence in the depositions from TS that "I think [Neil] told Wayne [Marmo] that she [Quinlan] had lagged him in for somethings as well." Transcript Record of Interview of TS, Depositions, 1998.

[50] It was submitted that TS was not sure whether Brendan Neil's concern about snitching related only to him. Trial transcript in the matter of DPP v Wayne Marmo, 4 May 2017, 150, ln 8-12.

[51] TS said Wayne Marmo said Simone Quinlan needed to be got rid of because she had already snitched before and would do it again. In her statement, TS described Wayne Marmo as saying "she's gotta go", Statement of TS, 4 October 2015, 352, [16]. Despite using slightly different language, the effect of what TS narrated was consistent.

[52] Referring to Trial transcript in the matter of DPP v Wayne Marmo, 4 May 2017, 214-215, 228 and 315.

[53] Drugs were supplied by Brendan Neil to Wayne Marmo and others on 25 August. Drugs were also supplied by Brendan Neil to Wayne Marmo on a date after the murder: Summary of Prosecution Opening for Plea, 19 May 2017, [41].

[54] Crown plea submissions in the matter of DPP v Brendan Neil, 26 May 2017, [4].

[55] Trial transcript in the matter of DPP v Wayne Marmo, 4 May 2017, 186-7.

[56] Which involved killing her if she was not already dead.

[57] Report of Stephen Gault, dated 18 May 2017.

[58] Ms Condon QC noted however that it could not be assumed that there was no access to drugs in prison.

[59] Conviction and sentence imposed 25 January 2012.

[60] Phillips v R [2012] VSCA 140 (29 June 2012), R v Freeman [2001] VSCA 37; (2001) 120 A Crim R 398.

[61] Phillips v R [2012] VSCA 140 (29 June 2012), [40].

[62] Report of Jane Lofthouse, 11 July 2017.

[63] After administering fourteen of the fifteen subtests of the Wechsler Adult Intelligence Scale (Fourth edition).

[64] Wayne Marmo faces outstanding driving charges over this incident.

[65] Report of Jane Lofthouse, 11 July 2017, 3.

[68] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[70] See DPP v Davis [2017] VSCA 341, [53-56].

[71] See; R v Bayley [2013] VSC 313 (19 June 2013), [43], citing R v Zhang [2009] VSCA 236 (13 October 2009) [13] (Buchanan J).

[72] Addressing the consequences of the offender's mental state on their experience in prison, R v Verdins [2007] VSCA 102; (2007) 16 VR 269, [32].

[73] Transcript of plea, 20 July 2017, 56-7.

[74] Outline of submissions for plea on behalf of Wayne Marmo, 18 July 2017, [34].

[75] DPP v Heblos [2000] VSCA 229; (2000) 117 A Crim R 49 referring to the principles discussed by Batt JA in Mills [1998] 4 VR 235.

[76] Report of Jane Lofthouse, 11 July 2017, 5.

[77] Outline of Submissions for Plea, 18 July 2017, [65].

[78] [2011] VSCA 10 (20 January 2011).

[79] Ibid [5], citing Lowe v R [1984] HCA 46; (1984) 154 CLR 606, 609 (Gibbs J).

[80] [2017] VSCA 287 (6 October 2017).

[82] DPP v Dalgleish [2017] HCA 41; (2017) 349 ALR 37, [82] (Gageler, Gordon JJ).

[83] DPP v Browning [2016] VSCA 153 (4 July 2016) Trial, 21 yrs with 16 yrs NPP; DPP v O'Neill [2015] VSCA 325 (2 December 2015) Guilty plea, 18 yrs with 13 yrs NPP; DPP v Zhuang [2015] VSCA 96 (13 May 2015) Trial, 22 years with 17 NPP; DPP v Daing [2016] VSCA 58 (31 March 2016) Guilty Plea 18 yrs six mo with 14 yrs 6 mo NPP; R v Singh [2010] VSC 299 (29 June 2010) Guilty plea, 17 yrs with 13 yrs NPP.

[84] R v Banek [2017] VSC 11 (1 February 2017), Guilty plea, 23 yrs with 18 yrs NPP; DPP v Meade; Meade v R [2015] VSCA 171 (26 June 2015) Trial, 23 yrs with 19 yrs NPP.

[85] DPP v Borg [2013] VSCA 181 (22 July 2013) Trial, 28 yrs 9 mo total sentence (28 yrs for murder) with 24 yrs 9 mo NPP; R v Spence [2015] VSC 321 (13 July 2015) Trial, 27 yrs with 22 yrs NPP.

[86] DPP v Aleluia [2017] VSC 204 (12 May 2017) Trial, 23 yrs with 18 yrs NPP; DPP v Kerr [2015] VSC 249 (28 May 2015) Guilty plea, 21 yrs with 16 yrs 6 mo NPP; DPP v Hunter [2013] VSCA 385 (19 December 2013) Guilty plea, life with no parole; Ryan, Lindholm and Trabert v R (2016) VSCA 255 (20 October 255) Ryan: Trial, 31 yrs with 26 yrs NPP, Lindholm: Guilty plea, 25 yrs with 21 yrs NPP, Trabert, Trial, 28 yrs with 23 yrs NPP; R v Spaliaris & Ors [2017] VSC 33 (3 February 2017) Spaliaras: Trial, 24 yrs with 17 yrs NPP / Brennan: Trial, 22 yrs with 17 NPP /Hill: Trial, 20 yrs with 15 yrs NPP; R v Budimir [2013] VSC 149 (5 April 2013) Trial, 18 yrs with 16 yrs NPP; R v Likiardopolous [2009] VSC 271 (5 June 2009) Trial, 20 years with 17 years NPP.

[87] Chalmers v R [2011] VSCA 436 (16 December 2011) Trial, 22 yrs with 18 yrs NPP; Xypolitis v R [2014] VSCA 339 (18 December 2014) Trial, 27 yrs with 24 yrs NPP; R v Potter [2012] VSC 511 (30 October 2012) Trial, 24 yrs with 20 yrs NPP; DPP v Gibson [2012] VSC 363 (24 August 2012) Guilty plea, 24 yrs with 20 yrs NPP; DPP v Giles [2014] VSC 210 (30 April 2014) Trial, 26 yrs with 21 yrs NPP_; R v Budimir_ [2013] VSC 149 (5 April 2013) Trial, 18 yrs and 16 yrs NPP; R v Spaliaris & Ors [2017] VSC 33 (3 February 2017).

[88] [2012] VSC 511 (30 October 2012);

[89] [2012] VSC 363 (24 August 2012).

[90] R v Spence [2015] VSC 321 (13 July 2015). See also R v Potter [2012] VSC 511 (30 October 2012); DPP v Gibson [2012] VSC 363 (24 August 2012).

[91] R v Spence [2015] VSC 321 (13 July 2015) [92]. See also recent High Court authority on the same point, "Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court", DPP v Dalgleish [2017] HCA 41; (2017) 349 ALR 37 [84] (Gageler, Gordon JJ).

[92] Sentencing Snapshot 198, "Sentencing trends for murder in the higher courts of Victoria 2011-12 to 2015-16", (27 April 2017); Victorian Sentencing Manual, "Murder Case Collection" (10 November 2017); Victorian Sentencing Manual, "Overview of Murder Sentences in the Court of Appeal" published by the Judicial College of Victoria.

[93] See generally, Kalala v R [2017] VSCA 223 (30 August 2017); Felicite v R [2011] VSCA 274; (2011) 37 VR 329.

[94] Sentencing Act 1991 (Vic), s 5(1).

[95] Sentencing Act 1991, s 5(2)(c). See also Bayley v DPP [2013] VSCA 295 (21 October 2013).

[96] Sentencing Act 1991, s 5(3).