R v Hargrave, Bui & Hargrave [2009] VSC 634

[2009] VSC 634

1 Adam Hargrave and Ngoc Bui, you were both convicted on one count of murder of Michael Daou, one count of kidnapping Michael Daou and one count of unlawful imprisonment of Michael Daou, all occurring on the same date being 18 November 2006. You, Lanh Ngoc Bui, pleaded guilty to the counts of kidnapping and false imprisonment before the jury. You, Adam Hargrave, have also been convicted, together with your father, Garry Charles Hargrave, of conspiracy to murder Kylie Rachael McDonald between 28 December 2006 and 9 January 2007. Each of you pleaded not guilty and contested the charges. Aaron Hargrave, respectively your brother and son, Quock Minh Bui, the brother of you, Ngoc Bui, and a man by the name of Kevin Ng, were also charged on counts of kidnapping, false imprisonment and the murder of Michael Daou. Each of those men were acquitted after trial.

2 You, Garry Charles Hargrave, were also charged with one count of murder of Michael Daou and during the trial the Crown accepted a plea of guilty to being an accessory after the fact to the murder of Michael Daou, and indicated it would lead no further evidence against you on the count of murder and the jury were directed to acquit you of that charge.

3 Accordingly, you, Adam Hargrave, are to be sentenced for the kidnapping, false imprisonment and murder of Michael Daou, together with one count of conspiracy to murder Kylie McDonald.

4 You, Lanh Ngoc Bui, are to be sentenced for the offences of kidnapping, false imprisonment and murder of Michael Daou.

5 You, Garry Hargrave, are to be sentenced for the offence of accessory after the fact to the murder of Michael Daou and conspiracy to murder Kylie McDonald.

6 The maximum penalties for the offences are: murder, life imprisonment; kidnapping, 25 years; false imprisonment, 10 years; conspiracy to murder, life imprisonment and assisting an offender 20 years.

7 Adam Charles Dennis Hargrave, you are now aged 29. You were born on 24 April 1980, and prior to being remanded in custody you were a warehouse manager, residing of recent times in Docklands.

8 You, Ngoc Bui, are 24 years of age, having been born on 2 April 1985. You were also a warehouse manager at the time you were remanded, residing at 45 Gattanara Drive in Frankston.

9 You, Garry Charles Hargrave, are aged 54, having been born on 25 November 1955. You are a company director and you were residing at 5 Hilton Place Mooroolbark at the time of your arrest. You, Garry Charles Hargrave, have one prior conviction to which I will refer at a later stage.

10 The circumstances relating to this offending are that you, Garry Hargrave, commenced a business called Logistics Plus, which was a storage and transport company that was finally located in Rocco Drive, Scoresby.

11 You were employed in logistics and you had set up the company, which you were planning, ultimately, to merge with another company that you wished to acquire. At that stage you intended to leave your employment to work full time at the business. Your son, that is you, Adam Hargrave, came to work in that business. You, Ngoc Bui, also worked there as a manager.

12 Whilst at this stage I am unable to comment upon whether or not Garry Hargrave had any actual involvement in relation to the other enterprise that ran out of Logistics Plus, I can say as a result of what has been put forward on the plea and during the trial, that both Adam Hargrave and Ngoc Bui were involved in drug trafficking, on a fairly significant scale, from Logistics Plus Warehouse in Scoresby.

13 A man by the name of Andrew Ferguson was employed at the warehouse. During 2006 he was asked if he could obtain 2000 ecstasy tablets. He obtained those from you Adam Hargrave, the price being $20,000.00. He was selling them to a man called John Feretanos. When he went to provide those Ecstasy tablets to Feretanos, he produced a gun and stole the Ecstasy tablets from him.

14 Ferguson later passed that information on to you Adam Hargrave, and you arranged with Ferguson that he could pay the money back over an instalment period. Michael Daou, the deceased man, was a friend of Feretanos.

15 Andrew Johnson, was known as "AJ", and he was employed at the warehouse but predominantly, in my view, employed selling drugs. He lived at the warehouse at that stage and he had a former partner by the name of Kylie Rachel McDonald, who was a drug user and drug dealer.

16 After McDonald and Johnson's relationship had ceased, Johnson moved in to Logistics Plus Warehouse. McDonald used to sell ice, ecstasy, speed and sometimes cocaine. She purchased her drugs either from Andrew Johnson or from you Adam Hargrave.

17 By the time of this incident occurring she had ceased purchasing her drugs from any of those involved at Logistics Plus and was using other dealers to obtain them.

18 On Friday 17 November 2006, you Adam Hargrave contacted Kylie McDonald and informed her that Michael Daou was involved in a rip-off relating to $20,000.00 worth of drugs. You requested her to see if she could organise a drug deal between yourself and Michael Daou, as you wanted your drugs back. She attended at Logistics Plus Warehouse later that night and arrangements were made to participate with her in a rip-off of Michael Daou.

19 There was a dry run at the site, where this was to occur, being the Red Court Reserve in Scoresby, not far from the location of Logistics Plus.

20 Later that night as she had arranged, Kylie McDonald met Michael Daou for the purpose of obtaining the ecstasy tablets. She got into his car and eventually ended up, as arranged, at Red Court Reserve.

21 John Feretanos, in another car, followed them towards the Red Court Reserve but lost the car while he was following them. Ultimately, Kylie McDonald and Michael Daou ended up in Michael Daou's car, parked outside the Red Court Reserve. During this time Kylie McDonald was messaging you, Adam Hargrave, both on the way to, and whilst she was at the Reserve.

22 I am satisfied beyond a reasonable doubt, that Michael Daou was removed from his vehicle, placed into the boot and transported back to Logistics Plus Warehouse. I am unable to be satisfied as to precisely how many persons were involved in that abduction, and physically present at the Reserve, but I am satisfied that Michael Daou was removed from the Reserve into the boot of the car at gunpoint.

23 I am further satisfied that two motor vehicles attended at Logistics Plus, one of which had Michael Daou in the boot of his own vehicle, and the other driven by persons who were involved in the kidnap.

24 Upon the return to Logistics Plus Warehouse in the early hours of the morning, Michael Daou was removed from the boot of his motor vehicle. I am satisfied again, beyond a reasonable doubt, that you, Adam Hargrave, questioned Michael Daou for some period of time as to the location of the ecstasy pills that were stolen from you and other matters of interest.

25 Andrew Johnson, who was called as a witness by the prosecution, was a person who had pleaded guilty to the murder of Michael Daou on the basis of aiding and abetting. He gave evidence about hearing the screams and yells of Michael Daou over a period of some hours. Also, that he saw him covered in blood and saw what he thought were flames being directed in the area of his genitalia.

26 Whilst I am unable to be satisfied beyond a reasonable doubt that either you, Adam Hargrave, or you, Ngoc Bui, were involved in the infliction of what was described as the torture of Michael Daou, I am satisfied that he was held for a number of hours and that he was forcibly questioned before being murdered.

27 It was submitted during your pleas that I could not rely upon the evidence of Andrew Johnson, as the jury had rejected his evidence in relation to the co-offenders who were acquitted. Whilst it is true that the jury had not convicted those persons upon his evidence, that is not surprising in light of the warning that was given in respect of him being an accomplice, and the lack of corroboration that existed in respect of each of those then accused persons.

28 In the case of both you, Adam Hargrave, and you, Ngoc Bui, there was evidence capable of amounting to corroboration and there is no doubt that the jury have acted upon the evidence of Andrew Johnson, in relation to those convictions.

29 He is, in my view, a person upon whom I am entitled to rely as to the circumstances of what occurred on this evening. Having said that, his evidence, in my view, in relation to what was described as torture, was vague, and relied upon him drawing a number of inferences.

30 Accordingly, I will not sentence you upon the basis that Michael Daou was tortured, but I will sentence you upon the basis that he was held prisoner for some time and that some violence was inflicted upon him in the course of him being questioned as to the location of the drugs. Subsequent to this but at a time of which I cannot be certain, Michael Daou was killed by at least two shots to the head from a firearm fired by you, Adam Hargrave, and assisted in this by you, Ngoc Bui.

31 I accept the evidence of Johnson as to the roles that each of you undertook in this murder. Michael Daou's body was taken in the boot of his own motor vehicle to an area of bushland and using accelerants the car was set on fire and thoroughly burnt, as was the body of Michael Daou. The burning of the body of Michael Daou prevents the court from having any forensic knowledge of the extent of any injuries inflicted upon him prior to his death. Those are, in brief compass, the facts relating to the counts of kidnapping, false imprisonment and murder, of which you, Adam Hargrave, and you, Ngoc Bui, have been convicted.

32 On the next day there was a significant clean-up at the warehouse involving Adam Hargrave, Ngoc Bui and Garry Hargrave. The clean-up related to the moving of the drugs from the warehouse to your home address in Mooroolbark, the removal of clothing and other personal items relating to Johnson and you, Adam Hargrave, the cleaning and thorough scrubbing of surfaces within the factory, which was done clearly with the intention of removing any traces of material that might forensically link the deceased to the premises, and there were ongoing discussions relating to ensuring the police remained unaware of the perpetrators of this crime.

33 Garry Hargrave, your participation in assisting an offender to avoid police detection was not limited to one act but was an ongoing series of acts over a period of time, all of which were aimed at impeding or preventing the investigation of this murder and the apprehension of your son, Adam Hargrave.

34 In relation to the charge of conspiracy to murder Kylie McDonald, of which both you, Adam Hargrave, and you, Garry Hargrave, have been convicted, I find that it was a serious conspiracy to murder and it is based entirely upon your own words, as recorded in the series of telephone intercepts. You had both become concerned that Kylie McDonald had information that could, at the very least, demonstrate the involvement of you, Adam Hargrave, in the kidnapping and potentially the murder of Michael Daou. That information came about due to her involvement in the setting up of Michael Daou on the night of his murder and the numerous calls and texts between you, Adam Hargrave, and Kylie McDonald.

35 As a result, over a period of some days, commencing very late in December 2006 but more particularly between 4 and 9 January 2007, you, Adam Hargrave, and you, Garry Hargrave, had a number of discussions which related to a desire and plan to kill Kylie McDonald, for the purpose of preventing her speaking to the police, and giving them information pertaining to Adam Hargrave and Michael Daou. There are references in those calls to the girl "Kay" and the girl who was talking, references to her having to go on a holiday, which, in my view, can be clearly tied back to the reference to Michael Daou having gone on holiday, and further references to the fact that the body must not be found, or there would be "another investigation." This can only be described as a serious example of conspiracy to murder, the basis for the murder being that the victim was potentially a witness who had either spoken to or was about to speak to the police about another murder, in which one or more of your family was involved.

36 At the stage at which you were arrested, it is clear from the tape recordings that you were actively seeking to locate Kylie McDonald for the purpose of killing her or having her killed. That makes this, as I indicated, a very serious example of conspiracy to murder.

37 These offences to which you have either pleaded guilty or have been found guilty by a jury are indeed serious examples of offences of their type. The kidnapping and the false imprisonment are performed over a drug deal that resulted in you, Adam Hargrave, being ripped off. The murder that occurred was clearly as a result of the desire to recover the drugs and, it must be presumed, some form of revenge and payback for the theft of the drugs. This places each of the offences of murder, kidnapping and false imprisonment in a most serious category. The only charges to which there was a plea of guilty entered was the accessory after the fact to murder by you, Garry Hargrave, and the counts of kidnapping and false imprisonment by you, Lanh Ngoc Bui.

38 In respect of your plea, Garry Hargrave, that was not entered into until after I had indicated to the Crown that, in my view, they had no prospect of the charge of murder being left to the jury in your case. After discussions out of court, the Crown accepted the plea of guilty and led no further evidence in your trial of murder. The plea was at the latest possible stage and, in my view, gave no indication of any remorse on your part. A conviction for accessory after the fact would have been inevitable on the evidence then before the jury. I consider that your plea of guilty is neither of great utilitarian benefit, in that the trial was almost complete, nor any indicator of remorse, and the discount for the plea will reflect that matter.

39 In relation to you, Ngoc Bui, your plea was at an earlier stage and, indeed, you pleaded guilty to those two offences before the jury. Whilst I take it as some indication of remorse, it is not of great significance in terms of the overall criminality in which you were involved. There was no great utilitarian benefit in the plea of guilty, as the issue of murder had to be resolved by the jury and the evidence relating to the kidnap and false imprisonment would have to have been led in the trial, by way of explanation of the whole of the circumstances. However, you are entitled to a benefit for those pleas and I have, in fact, ensured that that has been taken into account.

40 In terms of culpability for the offence of murder, I find that you, Adam Hargrave, are the most culpable for that offence and that you, Ngoc Bui, aided and abetted him in that murder. I do not accept that the murder was pre-planned, but was something that arose relatively spontaneously, out of the circumstances of the kidnapping and false imprisonment. That is, at the time that the kidnapping was planned and initially executed, I am not satisfied there was a plan on foot to shoot Michael Daou. That came at a later stage, shortly prior to the actual shooting. I am unable to say precisely how long before the shooting took place, but it could be measured in minutes rather than hours. In terms of the kidnapping and false imprisonment, I find that you, Adam Hargrave, and you, Ngoc Bui, were both involved and committed the crimes and it is hard to distinguish your roles, but I do find that you, Adam Hargrave, were, to put it in colloquial terms, "the boss".

41 In respect of the crime of conspiracy to murder, it is clear on the intercepted calls available, that you, Adam Hargrave, are the person who really promotes and pushes this concept of removing the witness, who may be able to tell the authorities about your involvement. But it must be noted that you, Garry Hargrave, do nothing to dissuade him and in fact actively encourage him, reminding him that it must not end like the last one - a clear reference to the finding of Michael Daou's body. You took an active part and you were Adam's father - the older and more experienced voice of reason should have been yours and it was not. In my view, despite the slightly different roles you played, you are both very culpable in relation to that offence.

42 In this case I have received three victim impact statements, being first from Ali Daou, the father of Michael Daou. A second statement from Helen Daou, the mother of Michael Daou and a third victim impact statement from Daniel Daou, the younger brother of Michael Daou. Each of those statements indicate to a degree the pain and suffering that each of these persons have undergone and will continue to undergo in relation to the loss of their son and brother.

43 No court can possibly understand the degree or the level of pain that families of victims such as Michael Daou suffer. The horrific circumstances of his death certainly make that suffering worse. The trauma suffered by each of those persons, together with other people who cared about Michael Daou, are matters that I will take into account when imposing sentence.

44 You, Garry Hargrave, have one prior conviction from October 1987 relating to an offence of dishonesty - the stealing of timber from a yard. That offence, in my view, has no real relevance to the matters for which I intend to sentence you. It is something that occurred over 20 years ago and is not related in any way to violence.

45 I have to also take into account each of your personal circumstances, commencing firstly with you, Adam Hargrave. As stated earlier, you are 29 years of age. You are the oldest of four children, with a brother, Aaron, aged 26, who was presented for trial and acquitted, a sister, Lauren, aged 23, and your younger sister Simone, aged 18. Your parents, Denise and Garry Hargrave, have been married for approximately 32 years and are still together. You initially lived at Mooroolbark and attended Bimbadeen Primary School in Mooroolbark until Year 6. You then moved to Sydney with your family and attended the Sutherland Primary School, completing Year 6 there. You commenced at Kirrawee High School in Sydney for part of Year 7 before returning to Melbourne for the second half of your Year 7 education. You then attended Mooroolbark Heights Secondary College, finishing at the end of Year 10. You commenced work for Hewlett Packard as a contractor. You were re-marketing large computer systems which were returned to the company under a buy-back scheme. Your particular expertise was in the refurbishing of the computers. You remained employed with Hewlett Packard until you were 25 years of age. You were also, towards the end of your time with Hewlett Packard, constructing web pages which I was informed you intended to pursue as a career. Further, to support yourself once you had left Hewlett Packard, you worked for a milk company, Parmalat, doing deliveries for them at night. This was in approximately 2004.

46 You had an interest in drag racing when you were younger and, indeed, held some records in relation to that. That interest appears to have passed. In terms of relationships, you have had a relationship with a young woman named Devina Burnell, which commenced around 1998 and continued for approximately six years. She was at university, completing an Honours course and she moved into teaching. According to the information provided in your mother's letter of reference, you broke up with Devina and gave up your interest in drag racing at around the same time which your mother attributes to your involvement with your co-offender, Mr Bui.

47 Your father had a utility at that stage and you had started, on his behalf, picking up chemicals from the company, Johnsons, and delivering those chemicals. You and your father rented the first warehouse in Ferntree Gully towards the end of 2004, beginning of 2005, where you were located for about 12 months. During this time, the business grew. This business was what became Logistics Plus. You moved to Scoresby, where this murder occurred, as the business of Logistics Plus expanded.

48 It was submitted by your counsel during your plea that what was being conducted at Logistics Plus was a legitimate business. In my view, that is contrary to the evidence that was presented before me. Whilst I accept that there was some legitimate business occurring in the form of logistics, it is apparent from the material before me that one of the major aspects of what was occurring at Rocco Drive, Scoresby, was drug trafficking on a significant level. I accept that in the past that this may have started as an office of legitimate business but I do not accept that the predominant reason for the existence of Logistics Plus or your involvement in it at the time of the offending related to logistics.

49 Whilst I make that finding, it has no real relevance to the sentence that I shall impose upon you, except as far as it goes to the motivation behind the murder. You are charged with significant drug matters, you have a trial yet to face in respect of those, and if you are convicted, any punishment for that offending will be a separate matter for the judge hearing those drug trials.

50 In relation to you, Garry Hargrave, as indicated, you are now 54 years of age. You were born in Ferntree Gully and raised in Boronia. Your father died approximately 10 years ago and your mother lives in Boronia and is aged 73. You have two brothers, Steven, aged 46, who is an excavator, and Dale, aged 44, a builder. You were educated at Ferntree Gully Primary School, moving on to Ferntree Gully Technical School and finally completing your leaving certificate, the equivalent of a Year 11, at Knox Technical School. Your mother ran a fruit shop in a supermarket complex in Ferntree Gully and when you left school you attempted to find an apprenticeship but failed to find one and you went to work with your mother for the first 18 months.

51 During that time you obtained an articulated licence and you began work for Rapid Transport. You did that for approximately two years, then you were offered the position of leading hand for that company, which you accepted, and you became a leading hand at the depot in Bayswater. You were then offered, and accepted, the position of area manager. The company, Rapid Transport, was taken over by the Mayne Nickless organisation. At that point you purchased a semi-trailer and worked as a subcontractor for Mayne Nickless, transporting steel on behalf of BHP for over two years.

52 As a result of an economic downturn, you gave up your truck and returned to work for Mayne Nickless as a manager of their Nunawading branch for two years. You then became an area manager which involved management of several branches. You were then transferred to Sydney as area manager. You did that for two years. You were then approached by the IGA organisation to become their national transport manager and you worked in that position for 12 months. You were then approached by Scotts Transport to set up a Victorian arm of their business, Scotts being a Sydney-based company. You were described by your counsel as running the Scotts enterprise in Melbourne.

53 In the year 2000 you decided to set up Logistics Plus. You continued to work at Scotts but eventually left and ran Logistics Plus for approximately 12 to 18 months. Towards the end of 2002 you returned to Scotts Transport and Adam became the controller of Logistics Plus on a day-to-day basis. Your role at Scotts was a management role, incorporating the state depots, and organising co-ordination and distribution through those depots over the State. At the time that you were arrested you were negotiating to purchase a company called Sergeant's Transport with a view to merging Logistics Plus and Sergeant's into one business.

54 Your family life I have actually mentioned when I referred to the personal circumstances relating to Adam, but I reiterate to a degree. You married your wife, Denise, some 32 years ago. You have the four children who I have mentioned aged 29, 27, 24 and 18. As your children were growing up you were very involved in their life, taking them to sporting events, being on the committees of various clubs such as Little Athletics, working as a canteen driver, all on a voluntary basis.

55 A number of references were supplied to the court and tendered and became Exhibit 2 on the plea. There were references from persons who have known you individually through work, members of your family, including your daughters, your wife, sister-in-law, mother-in-law and a wider group of extended family and friends. I have read those references.

56 One of the most significant aspects in your life, Garry Hargrave, is your medical condition. In October 1998 you were diagnosed with locally advanced prostate cancer with a PSA reading of 30.9. By April of 1999 it was measured at 0.7, as a result of hormone therapy. You underwent radiotherapy between February and March of 1999. In a report from Professor Gillian Duchesne dated 29 January 2007, she outlined the treatment that you had received. It would appear that during 2000 through to 2003 you experienced some difficulties but nothing requiring major treatment. In April 2003 you again started on the hormone injectable therapy. By May of 2004 your PSA had again fallen to 0.5. Between May 2004 and May 2006 there was a gradual rising of your PSA and you were referred to Mr Jeremy Goad, a urologist, who conducted a trans-urethral re-section of the prostate in August of 2006.

57 You were reviewed on 7 September 2006 by Mr Goad and there was no demonstration of any metastatic disease, but you were described as having a highly aggressive local recurrence which was going to be difficult to control and likely to cause you further symptoms over the coming months. Your next planned appointment was 19 March, according to that report.

58 In a report from Dr Bruce McLaren, who is the medical officer at the Metropolitan Remand Centre, dated 3 August 2007, he indicated that you had two problems, the first being carcinoma of the prostate, and second, that you have had episodes of syncope collapse, occurring up to two or three times a month, beginning before your time in custody. You were found on examination to have a spine tremor of the right arm. He said that consensus is that a heart rhythm abnormality is a possible cause and investigations so far have shown no obstruction to the blood supply to the brain, therefore making it unlikely to be a transient ischemic attack. At that stage no further assessments were done and you declined to be transported to St Vincent's Hospital for further investigation on the basis that you then expected to be released on bail.

59 In relation to the status of your health as at the time of the plea, that being in May of 2009, Dr Edward Morgan from the Melbourne Assessment Prison gave evidence before me. His role has been your day-to-day medical care, including co-ordinating specialist appointments and managing your day-to-day medications, which include hormonal implants, daily tablets, all of which are used to suppress the growth of the cancer. Every three months a PSA of prostate specific antigen test is performed. It is considered a marker of the disease. Your level has remained fairly constant until September or October of 2008 when your levels began rising again. You were placed on additional medication and your prostate levels fell.

60 Dr Morgan said that he had spoken to your urologist, Mr Jeremy Goad, who expressed surprise that you were doing as well as you were. He said that Mr Goad expected that you would have had a much poorer prognosis because you have basically had a very aggressive form of prostatic cancer and that there was always the real risk of the progressive and invasive disease returning.

61 He referred to the figures given by Dr Rick Milner, as to life expectancy rates in general terms, that persons with a prostate cancer - those being based on studies of men with similar conditions to yours - those statistics were that 97% survive one year, 68% survive five years, 49% 10 years, and 30% 15 years. There is a prospect that you may undergo a further re-section of the prostate which may alleviate some of your symptoms, which include blood in the urine and difficulty in passing urine.

62 In October 2008, you had a bone scan and a CT scan which showed there had been no metastatic spread beyond the prostate. It was noted in cross-examination that you have the full specialist services of St Vincent's Hospital available to you, and day-to-day care from doctors at the prison, who also liaise with the specialists in an attempt to manage your health as best you can.

63 Your counsel at the conclusion of your plea hearing on 8 May submitted that he wished to make further submissions in respect of providing up-to-date reports from your specialist and submissions with authorities on the question of the proportion of life remaining and how that impacts upon sentence.

64 Despite repeated requests by the court for those submissions to be made so the matter could be finalised, those whom you instructed were unable to provide those submissions to the court prior to 1 September 2009. That is most unsatisfactory for both you and your co-offenders, as well as the family of Mr Daou. As I had clearly indicated I would sentence you all at the same time.

65 It is not a factor that is in any way adverse to you that the delay in all of you being convicted and sentenced requires the explanation that that be made clear. On 1 September a report was presented which had been prepared by your previous specialist, Dr Jeremy Goad. He related your history again and stated that he has not seen you since his last review on 7 September 2006 at the Peter McCallum Cancer Centre. He is however, the Director of Urology at St Vincent's, and your condition is cared for by the registrars at that hospital.

66 As a result of his citing of your materials, he was able to state that your PSA has slowly increased during 2008 to around 6.7, but with treatment has reduced again to around 3. You have recently had a CT scan of your abdomen and pelvis which were negative for metastatic disease, and you do not require additional therapy at this stage. Dr Goad, provided a further report also dated 31 August 2009 as to your prognosis, which I will quote in full.

The prognosis of this man is difficult to predict. When he presented 10 years ago Garry had a higher grade cancer. Graded as 9 out of 10 in terms of severity. Despite potentially a curative radiotherapy he has confirmed recurrent cancer as shown by the active disease re-sected at the operation I performed in 2006. The hormone therapy is essentially a palliative measure but can be effective in producing remission for a decade and rarely longer than this.

Remission from hormone therapy is gauged by the PSA level. Excellent remission is shown with a PSA of less than 1. This man showed an initial good response but evidence of failure and development of hormone resistant disease as shown by the rises in the PSA level between 3 and 6.

On the other hand he has not progressed to a metastatic, or secondary sites of disease, cancer, as would usually have been expected. The best guess as to when he would develop secondary disease, in my opinion, would be between two and four years time.

He should have regular imaging perhaps every six months along with a PSA test, and this would aid with timing for additional treatment with chemotherapy. Once again, this treatment is palliative only and has been shown to improve survival by a number of months only, on average. In my opinion Garry is likely to die from his prostate cancer within five to seven years.

67 I accept that you are a person who is suffering from a grave illness that may well be terminal within the next five to seven years of your life. I also accept that your ill-health will make prison life more difficult for you due to the associated problems connected with your health.

68 I equally note, however, that this illness was one that you had at the time of the commission of the offences, and did not cause you to hesitate in your involvement or prevent your participation. A character witness was called on your behalf also, the prison chaplain, John Wardell, who gave evidence that he has known you just over two years from the time of your incarceration.

69 He said that you are a person who assists other prisoners in trying to settle in the prison environment, particularly those in prison for the first time. That you act unofficially as a mentor. He described you as having the respect of other prisoners as well as the custodial staff.

70 In relation to you, Lanh Ngoc Bui, you were born in Melbourne to Vietnamese parents. Your mother had previously married and divorced in Vietnam. She had one child from that marriage, your eldest brother, Quai. Her husband went to France and she in fact migrated to Melbourne. She married again, to your father. There was another born, Quock, a person who was on trial also with you, and who was acquitted. And you, the youngest of the three boys.

71 Your father is still alive and he was, during the time of the marriage, a heroin addict as well as violent and aggressive. That marriage was the subject of many violent episodes both to yourself, your brothers, but more particularly your mother. After a particularly violent episode your mother left for some days, and upon her return found that you had accidentally fallen, broken your arm, and your father had done nothing to obtain medical assistance.

72 As a result the marriage broke down and you and your brothers and your mother were constantly on the move avoiding your father who would not accept that the marriage had ended. Your mother ultimately re-married. Her husband this time was a fairly committed grower of marijuana, who was ultimately charged over a substantial marijuana crop. He was granted bail in respect of that and within a few days committed suicide.

73 Your mother had married her third husband whilst you were in primary school, and he committed suicide when you were 16 and just before you left school. I am unable to say which schools you attended, but I gather that there were a large number until your stepfather, the third husband that your mother married, at which stage you attended private Catholic schools, although, as I say, I am unable to state which ones. During your formative years your mother, brothers and yourself lived in poor socioeconomic neighbourhoods as she continued to try to escape your father's attentions.

74 In a report by Mr Newton, psychologist, it appears that during your step-father's time with your mother you achieved good results at school and your behaviour and social inter-mixing improved markedly. However, as you approached 16 your behaviour deteriorated, you had become involved with a group of disaffected youth in your area and you had begun to experiment with illicit drugs and other antisocial behaviour. This led to conflict between yourself, your mother and your oldest brother and you left home at the age of 16. You supported yourself and continued schooling, completing your VCE successfully. You undertook some brief TAFE studies in hospitality which you were unable to complete due to your increasing drug problems. The only positions you have had of any level that were above unskilled manual positions was your job at Logistic Plus warehouse.

75 It is clear from the report of Mr Newton that you are an intelligent and articulate person. Although the primary language in the home was Vietnamese, having been born in Australia, you have a thorough grasp of English.

76 In relation to your drug use, you commenced using ecstasy, according to the information provided. You fairly quickly moved to cocaine and ultimately your counsel stated you had acquired a large cocaine habit of approximately two grams a day, as well as using other drugs such as ice. Your counsel informed me that a couple of months prior to this murder occurring your older brother, Qui, who has never been in trouble with the law, told you to get your act together and you subsequently got yourself off the drugs to which you had been addicted. Last, your counsel submitted you were drug-free at the time. You informed your counsel that you took up drug use again shortly after the death of Michael Daou for a number of weeks, as a result of the stress of what had occurred.

77 In his report on your drug usage Mr Newton said:

Mr Bui said that his use of cocaine had been compulsive and that it had escalated rapidly. He told me that he was soon using cocaine on a daily basis and acknowledged that it had become an integrated part of his activities. Mr Bui reported clear signs of physical tolerance to cocaine's effect, that is, he required an ever increasing amount of the drug to experience the effects he desired. He exhausted his own limited financial resources and resorted to criminal activity as a means of supporting his addiction. The more Mr Bui became immersed in the drug using and criminal sub-cultures, the more he had ready access to a large quantity of drugs and money. His drug use continued to escalate and diversified to encompass a number of alternative stimulants, as well as the cocaine to which he had been initially addicted. Mr Bui told me that at his peak he had been using approximately two grams of cocaine each day, as well as a lesser quantity of other drugs. He said he continued to use drugs in this fashion until approximately six months prior to his arrest.

78 Mr Newton stated that in his view you were suffering from heightened anxiety in relation to two matters; first, your anxiousness as a result of these legal proceedings, resulting in what he described as ongoing rumination and noteworthy physical tension, and, secondly, a degree of chronic semi-traumatic anxiety as a result of your childhood abuse. He says this has led you to be rather shy and awkward in your social interaction, you lack confidence, you tend to be more insecure about your standing with others and he says this social anxiety is not sufficiently intense to warrant a formal diagnosis but that you would benefit from counselling. He says you clearly need drug counselling as the fact that you are currently returning negative screens for drugs, whilst promising, it is not an environment in which you are actually supervised. He believed your abuse of the drugs had been sufficiently severe to warrant the formal diagnosis of stimulant dependence. He says that your thought processes are normal but you lack maturity.

79 In this matter the co-offender, Andrew Johnson, who gave evidence in your trials, pleaded guilty to counts of murder, kidnapping and false imprisonment of Michael Daou, as well as significant drug trafficking charges, and undertook to give evidence against each of you. He was originally sentenced by Bongiorno J to a total of 23 years with a minimum of 15. He appealed to the Court of Appeal and the appeal was upheld. He was re-sentenced to a term of 16 years with a minimum of 11 years. In that decision Nettle JA stated that the sentencing of informants was a very complicated matter, that set the discount for Johnson at 50 per cent in light of his high level of co-operation and risk. His Honour then stated at paragraph 23:

As to the count of murder, I consider that the sentence properly to be imposed in the absence of the discount, would be in the order of 20 years. In some respects it was a particularly grave crime of murder in that it was planned, cold-blooded, brutal and motivated by illicit drug-trading considerations. As against that, however, the applicant was relatively young and had no prior convictions. As was conceded by the Crown, he was the least culpable of those concerned. He signified his intention to plead guilty at the first opportunity and he made full admissions.

80 None of you are in the category of Johnson in that your involvement is greater, there was no early plea offered, no full confession of involvement and no offer to give evidence against others.

81 The court also determined that the sentences in respect of the offences of kidnapping and false imprisonment, although serious, warranted only a small proportion of accumulation, bearing in mind the principles of totality and the need to avoid imposing a crushing sentence. The court stated that without the informer discount the sentences that it would have imposed for the offences would have been; for murder, 20 years; kidnapping, five years; false imprisonment, four years; trafficking in a large commercial quantity, 12 years, and six or seven years on the commercial quantity traffickings.

82 His Honour indicated that he would cumulate two years of the sentence on the kidnapping and one year of the sentence on the false imprisonment on the count of murder. He then went on to deal with accumulation of the drug offences which then totalled 32 years in all. After applying the informer discount that the court had determined of 50 per cent, that became a sentence of 16 years on which the court imposed an 11 year minimum.

83 It is clear that the court had formed a view of the offences not dis-similar to my own and I need to be guided to a degree by the Court of Appeal to ensure that there is parity of sentencing with all of those involved in the offences.

84 There are, however, quite significant distinguishing features between each of you and Johnson, being that he pleaded guilty to all offences, including murder, warranting a significant discount for that plea; and his role was considered by the Crown and adopted by the sentencing judge and the Court of Appeal to be the "particeps criminis of least culpability". I have been urged in respect of each of you to take particular matters specific to your cases into account when imposing sentence.

85 In relation to you, Adam Hargrave, I have been provided with a number of character references which I have been urged to take into account, and I do so. Your counsel relied upon the principles of totality, reminding me that you are still a relatively young man without any criminal history, and to not impose a crushing sentence.

86 In relation to you, Lanh Ngoc Bui, your counsel relied upon your age and that you are now 24: that you have had no prior convictions; that you pleaded guilty to two of the offences of which you were convicted; your extremely troubled background; your intelligence; your prospects of rehabilitation; and your lesser role than that of Adam Hargrave. I accept all of those factors as having a relevant mitigatory factor in the sentence.

87 In relation to you Garry Hargrave, your counsel relied upon your previous good character; your hard work and drive in terms of your constant employment and promotions over the years; he referred to your community participation; your family commitments and relied heavily upon your health issues - the reliance in respect of your health issues were that you have a terminal illness, with a, whilst unknown, much reduced life expectancy - and that your ill health will make your time in custody more difficult than that of the average prisoner.

88 Those matters to which I have referred are factors together with other relevant mitigating factors which I have taken into account. There are matters that I have also taken into account that do not in any way mitigate your sentences. Including both general and specific deterrence, the very serious nature of the offending and the need to impose just punishment.

89 In respect of the issue of cumulation of the individual sentences imposed, as a result of the application of the principles of totality, the cumulation I impose is less than is actually warranted for the offending, but I bear in mind that two of you are still young men and the other is quite ill, and I have endeavoured to not impose crushing sentences.

90 Adam Hargrave, you are convicted and sentenced as follows:

Count 1 - the murder of Michael Daou - 26 years imprisonment.

Count 2 - the kidnapping of Michael Daou - 8 years imprisonment.

Count 3 - the false imprisonment of Michael Daou - 5 years imprisonment.

Count 4 - conspiracy to murder Kylie McDonald - 10 years imprisonment.

91 Lanh Ngoc Bui. You are convicted and sentenced as follows:

Count 1 - the murder of Michael Daou - 24 years imprisonment.

Count 2 - the kidnapping of Michael Daou - 6 years imprisonment.

Count 3 - the false imprisonment of Michael Daou - 4 years imprisonment.

92 Garry Hargrave. You are convicted and sentenced as follows:

Count 4 - conspiracy to murder Kylie McDonald - 9 years imprisonment.

For the charge of assisting an offender - 6 years imprisonment.

93 I direct that in respect of you, Adam Hargrave, one year of the sentence imposed on Count 2; one year of the sentence imposed on Count 3; and three years of the sentence imposed on Count 4 are to be served cumulatively upon the sentence imposed on Count 1 and upon each other, making a total effective sentence of 31 years. I further direct that you are to serve a minimum of 26 years before becoming eligible for parole.

94 I direct that in respect of you, Lanh Ngoc Bui, one year of the sentence imposed on Count 2, and six months of the sentence imposed on Count 3, be served cumulatively upon the sentence imposed on Count 1, and upon each other. Making a total effective sentence of 25 and a half years. I further direct you are to serve a minimum of 20 years before becoming eligible for parole.

95 I direct that in respect of you, Garry Hargrave, that two years of the sentence imposed on assisting an offender be served cumulatively upon the sentence imposed on Count 4. Making a total effective sentence of 11 years. I further direct that you are to serve a minimum of 7 years before becoming eligible for parole.

96 I declare that each of you has spent 974 days in pre-sentence detention, and direct that such be noted in the records of the court.

97 Application for retention of forensic sample under Section 464ZFB(1) is granted.