R v Bangard [2005] VSC 1

8. At approximately 9.30 pm on 22 April 2003 a telephone call between a friend of yours, Andrew Marandos, and you was cut off. At 9.54 pm you sent an SMS message to Mr Marandos to the effect that everything was okay and you were going to the shops. At approximately 10.00 pm you were recorded on the video cameras at the local Bi-Lo supermarket. At 10.18 pm Emergency Communication Victoria received a call via the 000 service from you. You told the operator that you had just returned to your unit and found your girlfriend, Maxine Hayes, on the floor and not moving. An ambulance attended the scene, as did the police. Maxine Hayes had been strangled to death. You told the ambulance officers and the police that you had returned from the Bi-Lo supermarket and found her dead.

11. The Crown case was that your account of events that night was untrue and that you had killed Maxine Hayes. The case against you was circumstantial. The Crown case was that there had been an argument between the two of you on the night before the death, Monday 21 April 2003, and that you had each slept most of Tuesday 22 April 2003. After waking, the argument resumed or a new argument began, in the course of which the deceased disconnected the phone while you were talking to your friend. The Crown case was that you then killed the deceased. The Crown relied upon evidence of the deceased's volatile nature, together with evidence of the condition of the unit when the ambulance and police officers arrived, to support a conclusion that there had been a violent argument that night. The Crown case was that you immediately set about concealing your involvement in the deceased's death by sending an untruthful SMS message to Mr Marandos suggesting that all was well and that you were on your way to the shops, by attending at the local Bi-Lo supermarket where you were filmed by security video cameras, by returning with items bought at the supermarket, by arranging the deceased's body in such a way as to suggest some form of sexual motive for an attack on her, and by then calling 000.

14. In the course of the plea made on your behalf your counsel described the circumstances as follows:

"Accepting the jury's verdict, as we must, [there had] been a dispute, an argument going on for some time. Your Honour has heard Maxine Hayes was a volatile feisty character from witnesses independent of Mr Bangard. To use Mr Horgan's words [the prosecutor], the fight raged on the next day, and in those circumstances he has been on the phone, accepting the Crown case, she has pulled the phone out of the wall to disrupt the phone call, and there has been an argument that escalated into physical violence, and in accordance with what was said by Mr Bangard at the time that it was sent to the Director in an effort to effectively keep her quiet, his hands on her throat, and then there is a reaction, `Oh my God, what have I done?' And he leaves, thinks about it, and an attempt to cover it up, and a false story is told to the police, and once the false story is told he is effectively locked into the false story."

A little later I asked your counsel whether I could conclude that you had attempted to create a false alibi. He replied that the visit to the Bi-Lo could never have been a complete alibi because of the times involved, but then went on:

"I don't dispute that he has then attempted to lay a false trail [incorrectly transcribed as `trial'] if I can use that expression, and told the false story, he clearly has to the police officers."

20. The reference in your counsel's plea to matters said in something that was sent to the "Director" was a reference to a statement, which I was told about but not shown, which was given to the Director of Public Prosecutions in support of a submission that you would be prepared to plead guilty to manslaughter if that plea were accepted by the prosecution. I was told that this offer to plead guilty to manslaughter was made between counsel very shortly prior to the commencement of the trial. The reference to the false story told to the police officers was a reference to both a handwritten statement taken by police on the night of the incident and to a record of interview conducted on 23 April 2003.

23. In all the statements that you made to police, you maintained that you had had no involvement in Ms Hayes' death. You maintained that you had gone to the Bi-Lo supermarket at her request and had returned to find her dead.

26. I am bound to sentence you on the basis of conclusions on the facts which are consistent with the jury's verdict. In the circumstances it seems to me that I must proceed on the basis that your account of the events of the night was untruthful and that the Crown's case as to your conduct was accepted by the jury. Your counsel on the plea took this approach. Consistently with the jury's verdict, I must proceed on the basis that you did not intend to kill Maxine Hayes, or to cause her really serious injury, and that you are guilty of manslaughter because of your commission of an unlawful and dangerous act. It seems to me that no other conclusions are open. In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]

29. In a handwritten statement (Exhibit D on the trial) that was taken by police on the night of Ms Hayes' death you referred to a former boyfriend of Ms Hayes named Grant Thomas. You suggested that he had "constantly bashed and raped" Ms Hayes and that he had attempted to contact her, in circumstances requiring intervention by you, "a couple of weeks" prior to her death. This was a clear attempt to implicate this former boyfriend of Ms Hayes in her death and to suggest to police that their inquiries ought to be directed towards him. Your efforts to divert police attentions away from yourself and towards others did not end there. In the course of the trial your counsel put to the investigating police officers that you had suggested to them a number of persons who the police ought to investigate, including Mr Thomas, Nino Marino, Shaun Virgona, and a Paul Mitchell or "Mitch". (See transcript 107-8, 136-8, 386.)

32. At the police station on the night of Ms Hayes' death, scratches were noticed on your face and you were examined by a medical practitioner. You gave the police an account of how you had obtained those scratches. You said a patron of a night club where you worked as a crowd controller, a person subsequently identified as Ms Deanne Hollioake, had scratched you when she tried to kiss you and you had pulled away. Evidence was given at the trial by Ms Hollioake, by a friend of hers who was with her on the night this had allegedly occurred, and by others, on this issue. I have no doubt that the account you gave in relation to the scratches on your face was untrue and was given so as to conceal your responsibility for Ms Hayes' death. You implicated an entirely innocent person, Ms Hollioake, in a homicide investigation. You went further. Evidence was also given in the trial by a friend of yours, Mr Timothy Rodriguez. Shortly after being interviewed by police you attempted to enlist his support in corroborating your untrue explanation for the scratches on your face.

35. Maxine Hayes died as a result of manual neck compression leading to asphyxia. Apart from injuries related to the manual neck compression, principally bruising around her neck and damage to her laryngeal cartilage, there was a small amount of fresh bruising on her lip, on her upper arms, and on one leg. The police who attended the unit on the night of her death found indications of a disturbance including jewellery which you had given the deceased strewn around the unit, a smashed Easter egg, a smashed video recorder, a torn up Easter card, and a teddy bear with its head pulled off. Certain equipment necessary in order to operate the phone in the unit was found in a separate room of the unit which had been occupied by Ms Hayes.

38. At the time of her death Maxine Hayes was 32 years of age, having been born on 1 October 1970. She had three children at that time, Samantha then aged 13 years, Dylan then aged 10 years, and Jake then aged 4 years. None of these children lived with her.

41. At the time of Maxine Hayes' death you were 37 years of age, having been born on 11 June 1965. You were employed as a crowd controller with Nu Force Security. You had been a welder previously.

44. You have an excellent employment history and no prior convictions of any kind. You were born in Mauritius but came here at 18 months of age. You have a daughter who is now four years of age. You have been separated from her mother for some time. You have a supportive family. Your father attended much of the trial and your sister was present during the plea. A psychologist's report by Mr Watson-Munro was tendered on the plea. That report is generally positive in relation to your emotional stability and is very positive in relation to your prognosis. Mr Watson-Munro says you have expressed remorse and refers to a "developing sense of remorse". He says you are suffering from depression and anxiety. In his opinion this relates to your current circumstances and your insight into the magnitude of what occurred with Ms Hayes.

47. The maximum penalty for manslaughter is 20 years' imprisonment. The penalty for manslaughter was increased from 15 years maximum to 20 years maximum in 1997, reflecting the seriousness of the crime.

50. The offence in this case is a very serious example of manslaughter. It is difficult to conceive of a more dangerous act than the act of applying manual pressure to a person's neck until they die of asphyxia.

53. In terms of your culpability, I take into account the fact that the jury's verdict must mean they were not satisfied beyond reasonable doubt that you intended to kill or cause really serious physical injury to Ms Hayes. There is no suggestion of pre-meditation or of any motive, other than response to a domestic argument.

56. Victim impact statements have been filed by the deceased's sister and her parents. The deceased's death has had a devastating impact upon them. Some reference is made in those statements to the deceased's children. You have taken their mother from them. Nothing I can do, or you could ever do now, can atone for, or lessen, the terrible loss the deceased's parents, her sister, her children, and others who cared for her, have suffered.

59. I have no account from you of what occurred on that night, other than the one which, consistently with the jury's verdict, must be rejected as untruthful, and the observations made by your counsel on the plea. There are also some observations on the circumstances in Mr Watson-Munro's report but the matters referred to are not to be found in any of the evidence. In the circumstances it is not appropriate for me to try to hypothesise explanations or excuses for you. There was evidence before the Court that Maxine Hayes could be, as the prosecutor put it in his closing address, "wild". However, save for the fact that there was some kind of argument between the two of you, I do not know what it was that led you that night to strangle your girlfriend.

62. You pleaded not guilty to the crime of murder. The account that was put before the jury in your record of interview was that you were not in the unit when Ms Hayes was killed. You attempted to avoid any conviction. I was told by counsel on the plea that you had offered to plead guilty to manslaughter. You are entitled to have that offer taken into account in your favour, [2] and I do take it into account. However, its impact here is reduced by your conduct which, apart from that offer, has been, from the very moment of Ms Hayes' death, calculated so as to avoid any consequences for yourself from your actions.

65. There was no evidence of any history of violence between you and the deceased, in fact such evidence as there was on that matter was to the contrary.

68. Your plea was heard on Wednesday 15 December 2004 and your counsel put to me a number of what were said to be mitigating factors. They were as follows:

(a) The absence of any intent to kill or cause really serious injury. I accept that I must proceed on this basis consistently with the jury's verdict. Your counsel also submitted that this offence was less serious than a domestic manslaughter by reason of provocation. Such generalisations, in my view, are not helpful. The absence of an intention to kill is a significant distinction between your crime and manslaughter by reason of provocation. Otherwise the comparative seriousness of the crimes will depend upon the particular circumstances.

(b) The offer made to plead guilty to manslaughter. I do take this into account but its impact is reduced for the reasons to which I have referred.

(c) By reason of circumstances unrelated to this case, you are presently in a protected environment in custody, an environment said to be more onerous than the mainstream. I was told that a reason why you may be in protective custody is because you are a witness in a pending prosecution about an entirely unrelated matter. I do not think it is appropriate to take into account the administrative arrangements within the prison system, which may be short-term and the reasons for which are unknown to me.

(d) The positive report by Mr Watson-Munro. I accept that, save for this incident, you have always behaved as a stable and responsible member of the community and that it is likely that you will behave as a responsible member of the community when released.

(e) Your supportive family. I accept this as a matter in your favour.

(f) The remorse shown by you in relation to the death. The circumstances referred to by your counsel were the distress portrayed in the 000 call on the night of the death and your offer to plead guilty to manslaughter. I will deal with this issue separately.

(g) The effect on your future as a crowd controller. This was not put as a matter of great moment in the circumstances.

74. I do not think that there is an issue of specific deterrence which has significance in your case. The material before me suggests that the incident on 22 April 2003 was out of character.

77. There is, however, a very important issue of general deterrence. You are a strong person. You have trained in martial arts and have trained in the Australian Army. You were in a relationship with a person considerably weaker than yourself. In response to a domestic argument you have applied sufficient force to her neck, for a sufficient period, to kill her. The resort to violence by the strong against the weak, in domestic circumstances, and in response to disagreements in the course of a relationship, is a matter which this society cannot tolerate. When death results, the consequences are irreparable. One life is taken away and the effect on the lives of innumerable innocent victims, including children, family, friends and acquaintances is permanent. General deterrence is a very important factor here.

80. Ms Pullen, who appeared on behalf of the Crown on the plea, submitted that what she described as the "elaborate cover up" was an aggravating circumstance. Your counsel submitted that conduct after Ms Hayes' death could not be taken into account as an aggravating circumstance. I do not accept that. Conduct after the event, including conduct designed to disguise the perpetrator's involvement in the crime, can constitute an aggravating factor.[3] I accept that your conduct after Ms Hayes' death was correctly characterised by the prosecutor as an elaborate cover up and that it is an aggravating factor. You attempted to lay a false trail by attending the Bi-Lo. You attempted to implicate or direct police attention to other persons who were innocent and who you knew to be innocent, particularly Mr Grant Thomas and Mr Shaun Virgona. You arranged the deceased's body in such a way as to suggest a sexual motive for the attack and to thereby divert attention from yourself and towards others. You persistently maintained a false account of the events to the investigating police. You implicated an entirely innocent person in a homicide investigation by suggesting that she was the one who had scratched your face, and you attempted to implicate your friend Mr Rodriguez in corroborating that lie.

83. I am not persuaded that the evidence establishes genuine remorse for your actions. Whilst you do portray distress on the 000 call, I do not think that is a reliable indication of remorse in the circumstances. I am not persuaded on the balance of probabilities that it was. As I indicated earlier, with the exception of your late offer to plead guilty to manslaughter, your conduct since the very moment of Ms Hayes' death has been characterised by a determined resolve to avoid any consequences for yourself if at all possible.

86. A substantial custodial sentence is required in these circumstances, notwithstanding your previous good character and good prospects of rehabilitation. I sentence you to 11 years' imprisonment for the manslaughter of Maxine Hayes. I fix an non-parole period of 8 years. I declare pursuant to s 18(4) of the Sentencing Act that you have already served a period of 526 days in custody. I also make an order under s. 464ZFB(1) of the Crimes Act 1958 in the form submitted by the Crown for the reasons specified in the order I have signed.

[1] R v Storey [1998] 1 VR 395 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1 and R v Ramage [2004] VSC 508 at [25].

[2] R v Bartlett [1996] VICSC 47; [1996] 2 VR 687, 698-9.

[3] DPP v England [1999] VSCA 95; [1999] 2 VR 258 at 263 - 264 and R v Tran [2003] VSC 165.