R v Borg [2012] VSC 565

Supreme Court of Victoria|2012-11-21|Before: LASRY J

CRIMINAL LAW - Sentence - Murder - Cultivation of narcotic plants - Handling stolen goods - Guilty verdict on murder after trial - Planned murder - Concealment and degradation of body - Absence of remorse - Psychological assessment - Cognitive ability - Link between count of cultivation of narcotic plants and count of murder.

1 Leonard Borg, on 2 April 2012 you were found guilty by a jury of the murder of Peter Rule. You had pleaded not guilty to that crime and the principal issue during the course of the trial was whether or not the prosecution could prove beyond reasonable doubt that you were the person that caused the death of Peter Rule.

2 On 1 June 2012 at the commencement of the plea hearing on your behalf, you pleaded guilty to two other related charges - one count of handling stolen goods and one count of cultivating a narcotic plant. The maximum penalty for murder is life imprisonment and the maximum penalty for both of the other two offences is 15 years' imprisonment. I must now sentence you for those crimes and, of course, I must do so consistently with the verdict of the jury on the count of murder.

3 On 1 June 2012, I commenced to hear submissions from the Crown and on your behalf in relation to the appropriate penalty. Those submissions continued on 8 June 2012 and then on 26 June 2012.

4 You had known the deceased man Peter Rule for a number of years and you and he had a number of common connections. The evidence before the jury indicated that there were people other than yourself with some hostility towards Peter Rule, but by their verdict the jury were obviously satisfied that notwithstanding that, you were responsible for his death.

5 The murder of Peter Rule was committed by you, so the Crown put to the jury, after you became suspicious that Rule could not be trusted with the knowledge that you were growing hydroponic marijuana in several different locations. The evidence showed that you had been growing marijuana at premises at 1 Rosanna Court, Craigieburn and that that was a marijuana crop which came to the attention of police in March 2009. According to the evidence at your trial that crop involved about 20 plants.[1] Apparently, according to the evidence, you believed Rule had informed the police on you in relation to that crop. You had told the witness Danny Harris that you had found a hat which you thought belonged to Peter Rule in the vicinity. The truth was that an anonymous female had rung the Crimestoppers telephone line about that crop and it was that call which resulted in the investigation commencing.

6 The prosecution case in relation to the charge of murder depended significantly on the evidence of the witness Michael Spiropoulos. Spiropolous was engaged by you to assist in the disposal of the body of Peter Rule from the night on which you killed Rule onwards. However, unfortunately for you, in 2010 Spiropoulos presented himself to police, confessed his involvement in this saga and was charged. He pleaded guilty to cultivation of a narcotic plant and assisting an offender in relation to the murder of Peter Rule. On the charge of cultivation of a narcotic plant he was convicted and received a community-based order for two years. On the count of assisting an offender he was sentenced to three years' imprisonment which was wholly suspended for a period of three years. That sentence was imposed on him on the basis that he would give evidence at your trial. He did so and was the centrally important witness.

7 It is clear that by their verdict the jury accepted him as a witness of truth and reliability. Spiropoulos had commenced in 2006 as an apprentice at a business called Wallan Engineering, where you were also working. You and he became friendly and you told him that you were growing hydroponic marijuana and asked him to participate. After several refusals, he finally agreed to participate.

8 The enterprise that he became involved in with you was the growing of marijuana at a factory at 20 Ivanhoe Court, Thomastown. During the time that project was underway, Spiropoulos was also working on the marijuana crop at that Thomastown factory. During that time when Spiropoulos was working on that crop, he said you told him you believed Peter Rule had informed on you to the police over the marijuana crop at the premises in Craigieburn to which I earlier referred. You told him that Danny Harris had told you that a man named Peter had informed on you. You said that to get a peace of mind and so you would not have to worry about getting caught again, you needed get rid of him.

9 Before the killing of Peter Rule, Spiropoulos described going away with you to a place in New South Wales called Hermidale on a shooting trip. Whilst on that trip and at a time proximate to the disappearance of Peter Rule, you purchased a .22 semi-automatic rifle from a man named O'Connor. This trip, according to Spiropoulos, was less than a week before Peter Rule's death. The firearm was purchased by you, along with a scope and some ammunition. I am satisfied that it was that firearm that you eventually used to kill Peter Rule.

10 On 15th November 2009, according to what you told Spiropoulos, you picked Peter Rule up from his house and took him out for dinner. After dinner, you took him to a factory occupied by Corey Small in Campbellfield. You told Peter Rule that there was a gun hidden somewhere in the factory and that they should look for it. During the course of the search for the gun which you had described to Peter Rule, you produced the gun and shot him a number of times. You told Spiropoulos that you shot him six times in the head and four times in the chest.

11 You later rang Spiropoulos and told him to purchase 15 bottles of bleach, some garbage bags and rags which Spiropoulos then did. This was late on a Sunday night. You later directed Spiropoulos to meet you at a factory in Campbellfield owned by Corey Small and to bring the items that Spiropoulos had purchased.

12 You and Spiropoulos then spent an hour and a half or more cleaning up at Corey Small's factory following the killing of Peter Rule. The body of Peter Rule was in the boot of your motor car and you had finished at the factory in Campbellfield you then drove to the factory in Thomastown. By this time is was the early morning of the following day and you instructed Spiropoulos to return to the Thomastown factory the following day and he did so. By the time he arrived you had set about burning the body of Peter Rule to the extent that only ashes were left. During that process a chain saw had been purchased to assist with dismembering Peter Rule's body. The process of destroying Peter Rule's body lasted as long as three days. Part of that process also involved placing the remnants of Peter Rule's body into a black tub and then mixing acid into it. After the process had been completed you and Spiropoulos travelled to the area of the Great Ocean Road in the vicinity of Anglesea and Lorne where various items were disposed of by being concealed in the bush and the contents of the black tub were washed into the ocean. New clothes were purchased in Lorne at a menswear shop which could be linked to both you and Spiropoulos. After returning from that area, there was then cleaning of motor vehicles and later, to conceal any trace of what had happened at the Thomastown factory the floor was washed and repainted.

13 On 19 January 2010 the police investigating the disappearance of Peter Rule spoke to you and you made a statement denying any knowledge of what had happened to him. You attempted to account for your whereabouts on Sunday 15 November 2009 and later asked Corey Small to create records to support that. You told Small that a friend of yours had gone missing and that you needed a timesheet to show where you had been. He asked for particular dates and you made sure that Corey Small had down that you were at the factory on the 15th until extremely late painting. Small said in his evidence that he could not say from his own knowledge whether you were at the factory late into the night on 15 November, but he was happy to provide the details because he knew the jobs that he had left for you had been done and completed.

14 That is where the matter remained until Spiropoulos presented himself to the Craigieburn Police Station on 5 April 2010 and confessed his involvement with you.

15 As to the count of handling stolen goods, it appears that Brian Power was the owner of a business known as Burke Power Trucks, at 101 Bell Street in Preston. On Saturday 1 December, 2007, the lock on the front gate to his business premises was observed by him to have been changed, that is, replaced. He made some inquiries of staff members and then noticed that his 2002 model Iveco garbage truck was missing from the yard. It had been stolen by persons unknown between 6pm the previous evening and the morning of Saturday 1 December when he got to work. The truck was fitted out as a garbage compactor truck, its value was $165,000.

16 In 2010, you mentioned to Spiropoulos that you had a white Iveco truck which you told him was a stolen truck and that you had had it for about four years. In late April 2009, just after you rented the Thomastown factory you collected the truck from a storage facility and transferred it to the Thomastown factory. It stayed there for almost 12 months, when police discovered it. Your purpose in doing this was to give the factory the appearance of a legitimate business being operated, in order to conceal its true purpose of housing a cannabis crop. When police executed the warrant to search the Thomastown factory on 23 April 2010, they located the truck, as I indicated. As I understand it, you do not accept that you had the vehicle for as long as is alleged. I am not sure that in the overall result that makes a great deal of difference.

17 In relation to the count of cultivation of a narcotic plant, that was done by you in order to sell cannabis for profit and therefore was commercial in nature. The evidence at your trial demonstrated that you prevailed on Michael Spiropolous to obtain bank loans totalling $35,000 in order to finance the drug business. You leased the Thomastown factory specifically for the purpose of using it to grow the crops. You obtained hydroponic equipment for this purpose.

18 This count is a rolled-up charge. The first crop was between late April 2009 after the factory was rented and then the second in late September 2009. The first crop concluded about two and a half months after you started it. Michael Spiropoulos estimated there were about 30-40 plants in that crop.[2] The second crop began around September 2009 and in November 2009 you left for overseas leaving Spiropolous in charge. This crop failed. The third crop was commenced after you returned from overseas in January 2010 and when police executed a warrant at the factory on 23 April 2010 they found it. That crop apparently contained about 64 plants which the police examined.

19 As I understand the only evidence about money being made from the crops was from Spiropolous who said he was pretty sure you made about $25,000.[3]

20 As will be seen, you appear to claim that the cannabis growing activities were done for the purpose of meeting a significant gambling debt. Part of that debt was said to be owing to the Crown witness Danny Harris. No such issue was raised during the trial and your counsel has informed me that during the trial you had not given her those instructions. I will return to this topic.

21 There is no question that the cannabis was being cultivated for the purpose of trafficking and you do not in any way dispute that. Indeed, the evidence demonstrates that some part of it was trafficked.

22 I take into account on both the count of cultivation and the count of handling stolen goods, that you pleaded guilty to those charges. There was abundant evidence of the cultivation count given during the trial but you are entitled to an appropriate reduction in your sentence because you pleaded guilty.

23 During the course of your plea, I was provided with a number of victim impact statements. They were from Peter Rule's sister Stella McNaughton; his brothers Bill, Mark and Joseph Rule; his wife Judith Rule and his son Darcy Rule. These statements identify the severe emotional cost of what you have done in murdering Peter Rule. Each of these people will carry the scars from the death of Peter Rule for the rest of their lives. In particular, his young son Darcy has a difficult time ahead of him given the importance of his father despite the separation of Peter Rule and Judith Rule. Each of Peter Rule's siblings describe a close relationship and substantial difficulty in dealing with the loss they have suffered.

24 I have taken these statements into account in the sentence I will impose on you.

25 The material before me indicates that you are Australian born but of Maltese background. You were born on 13 February 1984 and are therefore 28 years of age. You have a sister and younger brother. Some of your time as a young child was spent in Malta. There do not appear to be any particular issues that arose in your family circumstances. You had some of your education here and some in Malta and that seemed to create some learning difficulties associated with language. After leaving school, you did an apprenticeship as a boilermaker and you completed it. Your education overall was limited.

26 You have some relatively insignificant prior convictions between 2002 and 2007 for dishonesty offence and damaging property to which I will refer again. Each of those matters were dealt with in the Magistrates' Court and none resulted in other than financial penalties.

27 You have a continuing relationship with your parents and they have been present in Court. I have no difficulty accepting that these circumstances are extremely difficult for them. You are still a young man but your conduct has had the effect of ruining what should be the prime of your life.

28 Part of the evidence put before me during the plea was the evidence given by the forensic psychologist, Pamela Matthews. Her evidence was put forward as explaining an aspect of your personal circumstances.

29 Ms Matthews spoke to you on 24 May 2012 and prepared a report six days later. Her evidence was not put forward to try to establish that there was a causal link between your mental state and the offences you committed but rather just as part of the personal circumstances. In her report, she has concluded that you have shortcomings in your cognitive abilities which mean you cannot easily think of alternative solutions to problems. She also suggested that you suffer from pathological gambling and considered that you may have become involved in growing cannabis and the consequential murder of Peter Rule out of fear of not being able to pay gambling debts. Her conclusions proceed on the basis that you told her you had a substantial gambling debt of some $50,000 and that some of that money was owed to the Crown witness Danny Harris. As I noted earlier no issue was raised about that issue during the trial and Harris was not cross examined about it. Indeed, your counsel told me she did not have any instructions from you about your gambling activities and the debts you owed during the trial. There is therefore no evidence about this matter on which I can act and I accept the caution that Mr Gibson urged me to apply.

30 Ms Matthews concluded her report by saying that your prospects for rehabilitation were "good". A difficulty with Ms Matthews evidence was that it proceeded on the basis that you denied your guilt and that despite the way you had carried out the killing of Peter Rule, you had sympathy for his family.

31 Another issue that arose from her evidence was the question of your intelligence level. The relevance of it is concerned with your ability to solve problems and to find solutions. Ms Randazzo had argued that your ability to do that is limited and that, to some degree, may explain why you have acted as you did. I am willing to accept that, for your age, you are somewhat immature but not so immature as to not be able to plan the cultivation of a large number of cannabis plants and the killing of Peter Rule to protect the financial benefits you expected to flow from that crop. In addition, as the prosecutor pointed out, the way you acted after Peter Rule's death in order to conceal what you had done was quite ordered and, at least to a degree, organised and planned.

32 It is apparent that I must sentence you on the basis that you have no remorse for what the jury have found you have done. Ms Randazzo suggested that you had expressed sympathy for Peter Rule's family but, of course, you had only done that in the context of denying that you were involved in his death and that could not be properly regarded as remorse.

33 The murder of Peter Rule was a planned, calculated killing and was particularly callous. You have denied you were involved in the killing and continue to do so. The jury's verdict means they rejected your denials and so do I. Peter Rule was enticed to a location where you had planned to kill him and you did so. This was a killing with a significant amount of premeditation and planning involved and those factors in themselves make it bad enough. But the brutal degradation of Peter Rule's body, which I accept was for the purpose of concealing what you had done, was dreadful and is a significant aggravating factor as your counsel properly conceded.

34 In addition, this was a killing which occurred for the purpose of preserving your hoped for income from the illegal growing of cannabis. Had it not been for the fact that Michael Spiropoulos could not cope with his own conscience, the whereabouts of Peter Rule's remains might never have been known. I respectfully agree with the submission made by the prosecutor that this is very serious offending and requires clear denunciation of what you have done. As for deterrence both specific and general, both you and the community needs to be reminded that the law will not tolerate individuals resorting to behaviour involving gross violence like yours to protect expected financial benefits from other illegal activity.

35 It was submitted appropriately by Mr Gibson for the prosecution that the offence of cultivation of cannabis was significantly connected with the murder of Peter Rule. The Crown case was that the motivation you had to murder Rule was because you thought he was responsible for one crop being discovered and that he was a potential threat to your cannabis growing operations at the Thomastown factory. However, it should be noted that the offending was serious. This was a significantly planned crop with factory premises being leased specifically for the purpose, bank loans arranged to buy equipment and quite a significant system for growing the cannabis. The installation of equipment for the crop was sophisticated as the evidence demonstrated. It seems likely that if failures occurred after the first crop, they were due to the ineptitude of Michael Spiropoulos. I do propose to make the sentence imposed on you for the cultivation largely concurrent with the sentence I will impose on the count of murder. The offence of handling stolen goods concerns a motor vehicle is a separate offence and which pre-dates the other offences. It is relevant to note in relation to this offence that to the extent that you have a limited criminal history, two of those matters concern theft of a motor vehicle.

36 However, I take into account your relative youth and the fact that your family support you and in all likelihood will continue to do so. I am also willing to accept that your life has been somewhat isolated and that your social skills have been very limited. It may well be that you have some prospect of rehabilitating yourself from the commission of these offences.

37 On the count of murder you will be sentenced to a period of 23 years' imprisonment. On the count of cultivation of narcotic plants, which I am satisfied was for the purpose of trafficking, you will be sentenced to three years' imprisonment. On the count of handling stolen goods you will be sentenced to 12 months' imprisonment. I direct that six months of the sentence on the count of cultivation be served cumulatively with the sentence on the count of murder. I direct that three months of the sentence on the count of handling stolen goods be served cumulatively on the count of murder and on the count of cultivation. That results in a total effective sentence of 23 years and 9 months. I fix a period of 19 years before you will be eligible to apply to be released on parole.

38 I determine that your pre-sentence detention is a period of 943 days and I direct that be reckoned as time already served and entered in the records of the Court.

39 I declare pursuant to s 6AAA of the Sentencing Act 1991 that, were it not for your guilty pleas, on the count of cultivation I would have sentenced you to a period of four years imprisonment and on the count of handling stolen goods to eighteen months imprisonment.

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