R v Beckett [1998] VSCA 148

5. The case exhibited several unusual features. Prominent among them was a concession by counsel for the applicant before Vincent, J. not only that the imposition of sentences of life imprisonment was appropriate but that in the circumstances they were the only appropriate sentences to be imposed. The only sentencing issues, therefore, that fell to be determined by the learned judge in his discretion were whether a minimum term should be fixed and, if so, what it should be. Accordingly, the ultimate question falling for determination on this application is whether, as the applicant contends, the minimum term should be reduced.

8. The crimes of murder were committed on Monday 6 October 1997 in densely forested country at Fiddler's Green Creek in the remote far north-east of Victoria. The immediate victims were two schoolgirls, Lauren Margaret Barry, who was a few days short of her 15th birthday, and Nichole Emma Collins, who was within about a month of attaining her 17th birthday. Both lived at Bega, a town on the Princes Highway inland 18 kilometres from the New South Wales south coast hamlet of Tathra and some 115 kilometres north of the Victorian border. Together with other girls and boys, the two girls, students at Bega High School, had been camping during the long weekend of 4-6 October 1997 by way of recreation not far from where they lived. They were reported missing late on Sunday 5 October and, so far as is known, were never afterwards seen alive save, apparently, by the applicant and one Leslie Alfred Camilleri who, according to the applicant, were "best friends". These two men, at the relevant time aged respectively about 23 and 28 years, lived at Yass, a town on the Hume Highway north of Canberra. The applicant subsequently described to police the interception of the two girls by himself and Camilleri at about 10 p.m. on Sunday 5 October. Camilleri was driving his Ford Telstar sedan easterly along the Bega-Tathra Road, with the applicant as his passenger, when they came across the girls - strangers to them - walking in single file along the road in the opposite direction, towards Bega. Camilleri stopped the car and had a conversation with them. They got in and the four went on to the beach at Tathra, not far distant. The remains of the two girls were discovered some six weeks later after the applicant had led police to the site of their slaughter, nearly two hundred kilometres south and west of Bega.

11. It is another unusual feature of the case that an understanding of the last 8 or 10 hours of the girls' lives, and of the manner of their deaths, depends largely on the applicant's own ghastly description, obviously directly against his own interest. He was apprehended by members of the Australian Federal Police for unrelated matters of suspected theft and was subsequently remanded in custody. In his stolen car police found a map of the Bega area which led to further enquiries and his ultimate confession. He gave police a detailed account of events and subsequently took investigators to various crime scenes within New South Wales and Victoria, last of all to Fiddler's Green Creek where the bodies were found.

14. Those who are interested will find in the learned judge's sentencing remarks an unusually full account of the applicant's crimes as he described them. We shall do no more than summarise quite briefly the facts upon which his Honour acted in passing sentence. We begin by referring to a bizarre episode that occurred on Sunday 14 September 1997, just three weeks before the murders of the two schoolgirls, and described by the applicant to police many months afterwards, in May this year. The applicant and Camilleri, travelling together in a car in Canberra, picked up a 19-year-old woman, evidently a stranger to them. The three together took doses of amphetamines, after which the men held her captive for some 12 hours. During that period both men repeatedly raped her in most degrading circumstances, taking her as far afield as the environs of Bowral. On a pretext she fled, substantially naked; and although both men chased her through bushland, she eluded them by hiding in a wombat hole and ultimately escaped. In his police interview the applicant acknowledged that an account of the episode given by the woman to the police was true. According to the applicant's account, Camilleri had said before she escaped that he intended to kill her by throwing her off a high bridge on the way to Sydney.

17. The car in which the applicant and Camilleri abducted the 19-year-old woman in September last year, and the two schoolgirls three weeks later, had defective or modified child-safe locks on the rear doors, so that the doors could not be opened from the inside. On 5 October, after the men had stayed shortly with the girls at the beach at Tathra, Camilleri headed the car back towards their camping site, with the applicant in the front seat and the two girls in the rear. Before reaching the site Camilleri branched off the Bega-Tathra Road along a dirt track, halted the car, produced a knife with a serrated blade which he showed to the girls, and told them to "shut up and say nothing", and that if they did not obey he would stab them. According to the applicant Camilleri told him also to get his knife, and he did. It, too, had a serrated blade and, showing it to the girls, he told them to do as Camilleri said. The girls, unable to open the doors, were thus in thrall, and no doubt in terror, for what was to remain of their lives. Camilleri drove south of Bega along the Old Wallagoot Road and turned into a clearing where the girls were raped, Nichole Collins by Camilleri and Lauren Barry by the applicant, even though Lauren had told him that she was a virgin and was in the course of her menstrual period. The girls were returned to the rear seat of the car, which Camilleri now drove towards Merimbula, thence to Pambula along the Princes Highway towards Eden. As they passed through townships the girls were ordered to crouch, keeping their heads out of the view of possible observers. Camilleri turned off the highway and stopped north of Eden, where he raped Lauren Barry and the applicant orally raped Nichole Collins. According to the applicant the girls had no choice : they would have been scared because of the knives and the threats made to them. Having reached Eden, Camilleri searched for a back way of leaving the town. He stopped the car and again each of the men selected one of the girls and orally raped her. The victims were returned to the car and now the applicant drove it, with Nichole Collins in the front passenger's seat, proceeding south across the border to Victoria. On this journey Camilleri, in the rear seat, again orally raped Lauren Barry, striking her head repeatedly with his fist in order to obtain her co-operation.

20. At about dawn on Monday 6 October, after the applicant had driven across the Victorian border, he stopped the car on a by-road at the direction of Camilleri, who took Lauren Barry into the bush and raped her again. By this time the girls had been held captive for about eight hours, far remote from home and help. During the same period the applicant and Camilleri had consumed amphetamines and alcoholic liquor but the applicant's account suggests that the only effect of these substances upon their conduct was disinhibiting. After the last incident of rape the applicant returned the car to the Princes Highway and drove towards Orbost. For a short time Camilleri fell asleep. Upon waking and realising that they were well into Victoria he protested, saying that he wanted to go to Sydney, and kept repeating "the bridge". By this the applicant took him to mean that he intended the same fate for the schoolgirls as that which he had intended for the 19-year-old woman three weeks earlier. The applicant drove along the Cann River Road and turned along a bush track. Camilleri kept repeating "they can't go back", by which the applicant took him to mean that the girls had to be killed, "so we couldn't get caught" for rape.

23. At about 8 a.m. on 6 October the applicant stopped the car on the bush track near Fiddler's Green Creek. Rope was taken from the boot. The girls were brought out and their hands were bound - Lauren Barry's by Camilleri and Nichole Collins's by the applicant - and they were led by the men, as though with halters, to the creek. There they were untied and forced into the shallow water after being told to undress sufficiently to "wash themselves out" - this with a view, apparently, to removing evidence of the sexual violations they had undergone. That done, the victims were forced to lie submissively on their stomachs. In that position they were in effect individually hog-tied, at least partially gagged and then tethered - Lauren Barry on the creek bank and Nichole Collins secured, hands behind head, to a tree about 30 feet distant from her companion. The applicant then murdered them. He first dragged Lauren Barry to the water and forcibly sank her head. When she struggled he slit her throat. Leaving her, he moved to slay Nichole Collins. His description is distressing to relate but the extent of his savagery is best conveyed by his own words, eloquent alike of his rating of human life and his attitude to its destruction -

"After I stabbed Lauren I ran up the bank to where I tied Nichole up. She must have heard what I had done to Lauren because when I got to her she said 'You're going to kill me aren't you?' I said 'Shut up' and walked around to her left side and I cut her throat two or three times. This was across her throat. The knife was in my left hand. Nichole was sitting down when I cut her throat. After this she was thrashing around on the ground. She was trying to scream but nothing was coming out. I think I kicked her 'cause she wouldn't keep still and I then put my foot on her to keep her still. This didn't work so I stabbed her in the throat. I aimed and stabbed her in the hard thing in her neck. I pushed the knife all the way in but she still wouldn't keep still so I worked out where her heart would be and I stabbed her in the left side of her chest. She still didn't stop moving so I stabbed her in the front of the chest. I was aiming for her heart. I needed two hands to get the knife through her chest. She kept moving so I kicked her in the head a couple of times. She still kept moving but she was slowing down. I waited till she stopped moving which didn't take long."

27. The applicant untied the ropes and gags and returned to the car, where Camilleri was sitting. They then decamped, leaving the bodies as they lay.

30. It is of course to be remembered that the vivid and harrowing account that we have briefly sketched depends very much on what the applicant related over a period to police officers, Federal and State. None of it is derived from Camilleri, who has made no confession, has pleaded not guilty to charges that have been preferred against him and is yet to stand trial. Nevertheless the applicant's account, astonishing though it may be thought, was substantially confirmed by circumstantial evidence. Apart from taking investigating police to the secluded site of the murders, where the remains of his victims were found, the applicant re-visited with police the various out-of-the-way places where he said the girls had been sexually violated, and where the discovery of items of clothing and other articles tended to add credence to his story. He also took investigators to the place where he had burned his blood-soaked clothing and the ropes and gags , and to a bridge over Lake Burley Griffin in Canberra into which he said the two knives had been jettisoned, and where police later recovered one of them. So much for the salient facts surrounding the crimes.

33. It will be recalled that until as recently as 1975 murder was a capital crime. After that, until 1986, the only penalty awardable for murder was imprisonment for life. It is therefore only within the last 12 years that judges have been called on to attempt, for sentencing purposes, to rank and classify crimes of murder such as the applicant's. This we mention only lest anyone should be tempted wrongly to assume that the courts have long been accustomed - and perhaps enured - to the task of evaluating the criminality of individual crimes of murder, and comparing them one against the other. The fact is that until 1986 such a task of evaluation was performed, if at all, not by the courts but by the bureaucracy, who were not constrained, as the courts are, by rules of evidence and by sentencing criteria imposed by statute and by a requirement to give reasons for their decisions. It is scarcely necessary, therefore, to say that the task confronting the learned sentencing judge was one of very considerable and anxious difficulty - as in its turn is that confronting this Court, although for somewhat different reasons than those which challenged the judge. For one thing, his Honour had to make a decision whether to fix a minimum term - a task from which we are relieved. Although we can intervene only if sentencing error on the part of the learned judge is demonstrated, his task and ours have alike required an attempt to make a qualitative assessment of the applicant's criminality.

36. Assuredly these were dreadful and deplorable crimes of unfathomable depravity. We should take the sheer, wanton cruelty that preceded and accompanied them, viewed through the eyes of common decent people, to compound their wickedness. Such inhumanity wrought in our sort of society by one human being on others of his kind could scarcely be more revolting. The aggravating circumstances attending the murders were manifold and we shall dwell only on some of the more striking.

39. We notice first that these were multiple, methodical and cold-blooded slayings, without shadow of provocation, designed to cover up earlier brutal and bestial behaviour. The remorseless routine preceding the murders was, on any view, cowardly and contemptible, perpetrated by two mature and strong young men, each armed with a knife, acting in concert and in seclusion against defenceless and vulnerable teen-aged girls . They were abducted virtually from their home ground, tortured in mind and body and humiliatingly debased. The vile conduct continued over many hours of what must have been terrifying and ultimately hopeless isolation. Sexual outrage was accompanied by violent assault in order to compel submission. With what was very probably exquisite cruelty the victims were made or allowed to become aware of their impending fate; and the result was the merciless destruction of two innocent young lives. The account given by the applicant was notably callous, evidently lacking even a semblance of compassion, and devoid, as his Honour justifiably noted, of appreciation or feeling for what must have been the intense suffering of his fellow human beings.

42. This catalogue denotes something of the wicked cast of the applicant's crimes. An appropriately balanced sentence, however, is of course to be struck by reference to such mitigating features as may be found. These, though in this case few and scarcely redeeming, are not insignificant. The burden of the argument in favour of the application was that the learned judge so undervalued them as to have fallen into specific sentencing error, or that he awarded a sentence that manifestly exceeded the range that was in all the circumstances available to him. Before dealing with that part of the argument, however, we shall mention certain criticisms of the use said to have been made by the judge of facts (accepted by his counsel as accurate) and findings made by inference from the material on which he was required to make his decision.

45. The first of these (founded on ground 4) was that his Honour placed weight, or undue weight, on the applicant's involvement in the episode of abduction and rape that occurred on 14 September 1997. As it was developed, this argument amounted to no more than an assertion that, in treating the applicant as having realised from the time of Camilleri's reference on 6 October to "the bridge" that the schoolgirls were to be killed, the judge attributed the realisation to him at too early a part of the escapade. The point is quite devoid of merit. The applicant was on any view aware for an appreciable time - at least several hours - before the victims were killed, of the fate that Camilleri had in mind for them. It cannot be supposed that the sentence imposed was influenced materially or at all by reference to a fine appreciation of the duration of the applicant's awareness.

48. Another comparable submission was made (founded on ground 6(b)) that the judge treated the applicant as having known, from the time the knives were first produced and shown to them, that the girls would be murdered. What his Honour said was that he suspected that the applicant had a very good idea of what was likely to occur from the moment that the knives were first produced or the first acts of rape perpetrated. In this connexion the judge considered that it might be significant that the applicant's statements contained no explanation of his personal decision, as driver of the car, to proceed into Victoria, or any indication of what fate he expected for the girls once there. His Honour also observed that, once it became clear that Camilleri intended to kill, the applicant seemed to view the prospect with equanimity. All these observations appear to us to have been open to the learned judge - if not obvious - upon the material that was before him. They also assisted to justify his Honour's unwillingness (the subject of another criticism, founded on ground 6(c)) to accept that the applicant acted as he did substantially under the influence and out of fear of Camilleri, at whose hands it was suggested that the applicant had previously suffered some personal violence. There was ample justification for his Honour's rejection of such a contention. It lies ill, among other things, with the applicant's being a "best friend" of Camilleri's with whom he had travelled, so far as appears, routinely and without difficulty over long campaigns.

51. Ground 3 of the application complained that the judge placed no weight on the applicant's personal antecedents . This cannot be sustained as a matter of fact, as reference to his Honour's sentencing remarks reveals. The applicant was New Zealand - born and had a deprived upbringing. Although not intellectually disabled, he has a low intellect and a weak personality, both of which, unsurprisingly, have been debilitated by abuse of alcohol and drugs of addiction; and he has had so far in the course of his life little wholesome moral or intellectual guidance. He has accumulated over the last three or four years a not insubstantial criminal record, including offences of violence. His Honour expressed himself to have taken into account in sentencing the applicant a range of matters, including those personal to him of which he was made aware, including his age and background. At best it could be said that the judge gave insufficient weight to these factors. In the end, as we understood, little or no reliance was entrusted to this ground which, as it was framed, is unsustainable.

54. The remaining grounds of the application sought to attribute to the judge errors of sentencing principle which were said individually or together to vitiate the sentence or to support the conclusion that the minimum term was manifestly excessive.

57. His Honour was evidently disposed to assign to the applicant a greater moral responsibility for the deaths of the victims than he took the applicant to accept for himself. In this context criticism (founded on ground 6(a)) was offered of what the judge called the applicant's "deliberately vague" attitude to his own involvement in the relevant incidents that preceded the murders. It was submitted that the judge had treated the applicant as having by his silence undervalued his role, thereby forfeiting a degree of the leniency that other mitigating circumstances might justify; and that his Honour had attributed to the applicant a far greater intellect and insight into his wrongdoing than in fact he had, thereby revealing sentencing error. We are unable to discern in the judge's sentencing remarks, so far as they were directed to these aspects, any specific error: if there be an error which is referable to them it must lie in the synthesis that was responsible for the sentence that is now said to be manifestly excessive.

60. The strongest argument for the applicant in this Court (that founded on grounds 1 and 2) was that the learned judge fell into error by undervaluing for sentencing purposes some of what we have already noticed as unusual features of the case. Chief among these are the degree of co-operation already given by the applicant to the authorities (including his immediate plea of guilty) and that promised for the future. Counsel made much in this Court - and tellingly, we may say - of the striking circumstance that the unravelling of the crimes, and a statement of the appalling features of their aggravation, became possible, or was at least immensely facilitated, by the applicant's disclosures. Moreover, and most importantly, the applicant has undertaken on oath to give evidence for the Crown against Camilleri upon his trial. It may be assumed that this is a valuable asset to the Crown, without which a case against Camilleri would be difficult and perhaps impossible to prove. The judge acknowledged that it was "highly unlikely" that he would have contemplated fixing a minimum term but for this factor. Counsel fastened on the acknowledgement in support of an argument that his Honour had shown undue concern for the question whether there should be a minimum term, and at the expense of a proper consideration of what the minimum term should be. Reference to the last four pages of the transcript of his Honour's sentencing remarks shows the argument to be simply misconceived. The submission was that principle should, and would in any event, have driven the judge to fix a minimum term, for s.11(1) of the Sentencing Act 1991 requires it unless the court considers that "the nature of the offence or the past history of the offender" make it inappropriate. There was no suggestion that the applicant's past history was relevant to the matter; and the high value to the course of justice of the applicant's co-operation demanded an appropriate requital which, so it was argued, the fixing of a minimum term should not have been seen by the judge as itself providing.

63. We were referred to a number of authorities that were said to support or bear on the submission that, in fixing a minimum term of imprisonment of 35 years, an error of principle was made. Most of these authorities were concerned - as we are not - with the question whether a minimum term should have been fixed, and we have found none of them to be of direct assistance. It is to be noted however, when considering s.11(1) of the Sentencing Act, that the "nature of the offence" is taken to comprehend the circumstances of its commission: R.v. Lowe [1997] 2 V.R. 465, at 487. We do not think that there is any sentencing principle enshrined in s.11(1) that must have driven the judge, in a case bearing the aggravating features of this one, to fix a minimum term. Nor, in our opinion, is any such principle to be distilled from authority. As was pointed out in R.v.Coulston [1997] 2 V.R. 446, at 463, the fixing of a non-parole period will depend in any case on all its circumstances; and "...those who kill a number of victims in horrendous circumstances, where no substantial factor of clemency is present, must in general expect to be seriously considered for the possible imposition of life sentences unmitigated by the hope of parole." We refer also without elaboration to what was said in the same case at 462-3 and to R. v. D.J.H. [1998] V.S.C.A. 108 at para.12. Because of the applicant's past and prospective co-operation with the authorities, it cannot be denied that some substantial clemency was called for; but we do not accept the implicit submission on his behalf that the fixing of a minimum term did not in of itself reflect some recognition of his co-operation.

66. The submissions for the applicant seemed to us scarcely to recognise, as the learned judge had to do, that this is a case of two murders - the extinction of two human lives of equal sanctity, each irreplaceable to loved ones and of priceless value to them and to the wider community. His Honour's disturbing task, like that of every sentencing officer, was ultimately to balance the disparate and sometimes competing elements of denunciation, retribution, deterrence, community protection and the offender's prospect of rehabilitation, mindful of the place that the case should be seen to occupy in the firmament of the judicial system. In synthesising the elements, the judge referred to the "regrettable reality" of the necessity to give due credit for the applicant's co-operation "in order to advance another but very important community interest". It was submitted for the applicant (founded on an added ground 2A(ii)) that this statement betrayed, as it were, a somewhat grudging or unwilling, and thus perhaps inadequate, recognition of a reward for his co-operation. We do not understand the remarks in that way. Rather, we think that his Honour was evidently concerned to indicate a reason for fixing a minimum term in order to make it clear to some who, being perhaps especially close to the case, might find the fixing of a minimum term difficult to understand or justify.

69. There was one other matter relied on for the applicant that we should mention. It was an assertion (founded on ground 5) that, because the applicant is to turn Queen's evidence, he would presumably need to serve his time, or a substantial part of it, in some form of protective custody. His Honour made no mention of this prospect but we should not be prepared to assume, in the absence of some confirmation, that Vincent, J., a most experienced criminal lawyer and judge, and chairman of the Adult Parole Board, did not have the matter in mind when formulating the sentence. His Honour's omission seems to us to have been no more than a failure to state the obvious.

72. We were told that the minimum term of imprisonment of 35 years is the highest yet fixed in this State. We are not at all persuaded that the sentence was not an appropriate response to the applicant's crimes, even giving due weight to such mitigating circumstances as there are. We shall accordingly dismiss the application.