R v Motta & Campbell [2009] VSC 197

Count 1: Contrary to s 72B(a) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), cultivating a narcotic plant, namely cannabis. The maximum penalty is 15 years' imprisonment.

Count 2: Contrary to s 5 of the Firearms Act 1996 (Vic), being a prohibited person and carrying an unregistered firearm. The maximum penalty is 15 years' imprisonment or a fine of 1800 penalty units.

Count 3: Contrary to s 325(1) of the Crimes Act 1958 (Vic), carrying out acts with the purpose of impeding the apprehension, prosecution, conviction or punishment of Douglas Robinson. The maximum penalty is 20 years' imprisonment.

Count 4: Contrary to s 88 of the Crimes Act 1958, dishonestly handling stolen goods, being a gold necklace, knowing or believing those goods to be stolen. The maximum penalty is 15 years' imprisonment.

2 Corrado Motta, you have pleaded guilty to the following charges:

Count 1: Contrary to s 72B(a) of the Drugs, Poisons and Controlled Substances Act 1981, cultivating a narcotic plant, namely cannabis. The maximum penalty is 15 years' imprisonment.

Count 2: Contrary to s 325(1) of the Crimes Act 1958, carrying out acts with the purpose of impeding the apprehension, prosecution, conviction or punishment of Douglas Robinson. The maximum penalty is 20 years' imprisonment.

3 Each of the charges relates, in one way or another, to the circumstances surrounding the death of Mr Michael Grech. The Crown allege that the deceased was murdered by Robinson, to whom he had loaned money. Each of you have admitted assisting Robinson in various ways after the killing, although it is not suggested that you acted in concert with him in the killing of the deceased.

4 In addition to pleading guilty to the charges, each of you has undertaken to give evidence at the committal and trial of Robinson.

5 Both of you, Motta and Campbell, had met Robinson whilst in prison. You each remained in contact after your release.

6 In August 2007, Robinson borrowed $15,000 from the deceased. On 26 August 2007, Robinson made a statutory declaration, witnessed by you, Motta, in which he declared that he had borrowed $15,000 from the deceased and would repay him $18,750 by 19 December of that year, failing which the deceased would be entitled to any inheritance Robinson received from his father's estate.

7 In November 2007, at Robinson's suggestion, you, Campbell, leased a house at Coburns Road, Melton for the purpose of yourself, Robinson and Motta cultivating cannabis there. The cannabis enterprise in which the three of you were involved and which is the subject of the cultivate narcotic plant charges (Count 1) was in its embryonic stages, and I was told by counsel that it involved four plants, described as fingerlings.

8 On 19 November 2007, the deceased was working with his nephew, Mr Jeffrey Zammit. Mr Zammit dropped the deceased home late in the evening. Later that evening, the deceased was taken to the Coburns Road house by Robinson and Motta and was killed there by Robinson. He was struck to the head multiple times. His body was then removed and buried in a shallow grave at a remote spot at Toolern Vale. On that night, you, Campbell, were sleeping over at the premises. Both of you admit to playing a part in the events after the deceased's death, although there is some lack of consistency in your individual accounts. I shall return to those accounts shortly.

9 On 21 November 2007, the deceased was reported as a missing person.

10 After approaching police in March of 2008 (about which I shall say more later), you, Campbell, were interviewed on 11 April 2008 in relation to the events surrounding the deceased's disappearance. You provided the police with information concerning the whereabouts of the deceased's body, which you had identified a week earlier. You also gave the police selective information concerning the events surrounding the killing of the deceased and your role in checking the deceased's gravesite. You were less than frank at that time in providing an account of your own role in those events.

11 On 5 August 2008, you participated in a further record of interview (later reduced to a statement). You gave the following more detailed and, I accept, accurate account. On the evening of 19 November 2007, you were at the Coburns Road house and received an SMS from Robinson saying "We're on, open up". You sent a reply that the gate was open. You went to sleep and awoke when you heard banging and a voice calling you. You went to the back door and saw Robinson, who had a hammer and was blood-splattered. The deceased's body was on the ground at his feet. Motta, at that time, was in the carport. Robinson retrieved some plastic from inside the house and asked you and Motta to help him roll the deceased's body onto the plastic and put it in the boot of the car. You complained of a bad back and did not assist. Scared of what Robinson might do, you went inside and got an old .45 revolver, loaded it and placed it inside your pants before returning outside. This is the subject of the firearms offence (Count 2). Robinson asked you to clean up the blood stains whilst he and Motta disposed of the body. You used a hose and broom to clean the bloodstains off the pavers, the walls and the door. You also set fire to a bin which contained Robinson's bloodstained clothing. When Robinson returned, you gave him a clean T-shirt to wear. You cleaned up after Motta and Robinson left and then went home. Several days later, you and Robinson again cleaned the Coburns Road house, washing the pavers, the windows and the walls. You also removed a piece of carpet from the loungeroom, as Robinson was concerned about DNA evidence. Some days later, you assisted Motta in removing the bloodstained pavers. You arranged for crushed rock to be placed over the area where the pavers had been removed. You had, in the earlier interview in April, told police that you had been to the gravesite on several occasions with Robinson and Motta. On one occasion you had gone by yourself and had seen an exposed human knee, which you had covered up.

12 Prior to the 5 August interview, you, Motta, when interviewed by the police, had denied any knowledge of the events surrounding the death of the deceased. However, on 5 August 2008, you told the police of the events in the following terms. That on the evening of 19 November 2007, Robinson had picked you up in his car. Then you both collected the deceased from his house at St Albans and drove him to the Coburns Road house. You said that you believed Robinson was taking him to these premises so as to obtain a further loan from the deceased. On arrival at the house, the others left the car and went inside. Just as you were about to enter the house, you heard a thud. You then saw the deceased on the ground and Robinson over him, hitting him on the head with what you thought was a crowbar. You said you had no forewarning that Robinson was going to hurt the deceased. Robinson then had yourself and Campbell assist him with wrapping up the deceased's body in plastic sheeting and putting it in the boot of Robinson's car. You then, in company with Robinson, took the body to the burial site and assisted in burying the deceased in a grave which Robinson had prepared. Some time later, at Robinson's request, yourself, Campbell and another male removed brick pavers from the carport which may have been blood stained. You admitted telling lies in your previous records of interview and statements.

13 I return now to other events subsequent to the disposal of the deceased's body. In December 2007, you, Campbell, were provided with a gold necklace which was the property of the deceased and a gold chain by Robinson. In your 16 April 2008 statement you described your involvement with Robinson in the sale of the necklace to a jeweller in the Melbourne CBD for $1300. This is the subject of the receiving charge: (Count 4). The necklace belonged to the deceased. You said you thought it belonged to someone in Robinson's family. You wore it for several weeks after Robinson gave it to you and then, in company with Robinson, you visited several jewellers before selling it under your name. You received $200 from Robinson for your part in the enterprise.

14 On 11 April 2008, you, Campbell, contacted police and informed the officers where the deceased was buried and of the possible involvement of Robinson and Motta in the deceased's disappearance. You made no mention of your own involvement in his disappearance, although you admitted to visiting the gravesite and covering up the deceased's knee, which was exposed after heavy rains. You told the police where the deceased was buried.

15 On 12 April 2008, the deceased's decomposed remains were located in a shallow grave in bushland off Chapman's road, Toolern Vale.

16 On 13 April 2008, an autopsy of the deceased's remains was conducted by Professor Cordner. The finding in relation to the cause of death was that it was "consistent with multiple skull fractures caused by numerous blows to the skull vault and face with a blunt implement".

17 On 15 April 2008, you, Motta, were interviewed at Homicide Squad Offices. You admitted being involved with Robinson and Campbell in the renting of premises at Melton to grow cannabis. You also admitted to selling some cannabis. You initially denied any knowledge concerning Grech's disappearance. Later, after Campbell's account was put to you, you told police you thought you knew where the deceased was buried. You said you had first been to what you suspected was the gravesite area with Robinson and Campbell when you drove there together, but said that first time you stayed in the car. You said the next time you went there was with Campbell and that you went there three or four times. You did not admit to any role related to the killing of the deceased.

18 On 16 April 2008, you, Motta, were again interviewed at the Melton premises and at Toolern Vale in the vicinity of the gravesite and denied any role in the events surrounding the murder, but admitted visiting the site where you said you suspected that the deceased was buried.

19 On 5 August 2008, as I have recounted, you, Motta, provided the police with your account of what occurred on 19 November 2007, conceding that you had lied in previous interviews. On the same day, you, Campbell, also gave a further account, which I have described, of your role in the cover up of Robinson's crime.

20 There are some conflicting aspects of the account given by each of you as to the role the other played after the deceased was killed. Although no submissions were addressed to me in relation to these matters, each of you must be sentenced only on the basis of facts admitted by you personally as to your respective role in assisting Robinson after the death of the deceased.[1]

21 In your case, Campbell, you are to be sentenced on the basis of assistance you gave on the night of the murder, the burning of the clothes, as well as your cleaning up of the premises, your subsequent actions in assisting with removing any evidence of the deceased's death from the Coburns Road house by washing and removing the pavers, your visits to the makeshift grave and your effort to secrete the body of the deceased.

22 In your case, Motta, you are to be sentenced on the basis of assisting in wrapping up the deceased's body and placing it in the boot of Robinson's car, then going to the burial site with Robinson and assisting in the burial of the deceased's body. You also have admitted to removing the bloodstained pavers from the Coburns Road house.

23 I will now deal with your personal circumstances and the relevant sentencing considerations in light of the matters put to me by the Crown and your counsel.

24 The thrust of the Victim Impact Statements made by several of the deceased's relatives (daughter, son-in-law and nephew) is directed to the effects of the murder of the deceased with which neither of you are charged. However, it is clear that the deceased's disappearance and the subsequent anxiety caused by the lack of knowledge as to what had happened to him was a matter of considerable concern to his relatives in the period prior to the discovery of his body.

25 David Campbell, you were born in Carlton on 9 August 1959 and are now 49 years of age.

26 You attended St Monica's Primary School and then Essendon High School to Year 8. You were married at the age of 19 and have two adult children.

27 In 1977 you were convicted of assault female and fined $60, and in 1980 you were convicted of theft and fined $200. In 1984 you were charged with murder, and on 31 August 1987 in this Court you were convicted and sentenced to life imprisonment with a minimum non-parole period of 18 years to be served before being eligible for parole. You were released from gaol in April 2004.

28 Subsequently, you found it difficult to obtain work and, apart from working as a cleaner on a part-time basis in 2008, you were unable to obtain employment.

29 Your marriage broke down in the last couple of years of your imprisonment. Subsequent to your release, you lived in either boarding house or Housing Commission accommodation. At some time in 2006 or 2007, you established a relationship with Robinson, whom you had met in prison. This led, as I have said, to the renting of a house and the attempt to cultivate hydroponically a crop of cannabis. This venture was stymied by the murder of the deceased.

30 On 14 January 2009, the Adult Parole Board cancelled your parole in relation to your sentence of imprisonment for life on the 1984 murder charge. You have remained in prison since 21 January 2009 and any reparole on this charge will be determined by the Board after consideration of a Result and Recommendation Report prepared by its officers.

31 According to Mr Bernard Healey, consultant psychologist, you do not have any major psychological or emotional disturbance. He has concluded that "In view of his just average intellect, limited personality functioning and many years of institutional experience, it was evident that he lacked discretion and interaction with prison associates, to whom he felt a sense of loyalty - never anticipating, however, that he could be involved in such serious matters."

32 Although you have a conviction for murder, I accept the submission of your counsel that Robinson was a dominant and violent personality in the relationship and was the moving force behind not only the killing of the deceased but also the concealment of the crime. I accept that one of the motivating factors for your assistance to Robinson was fear of what he might do to you if you did not assist.

33 Your assistance to the police is to be counted significantly in your favour. I accept that in January of 2008 you decided to report the matter and, through the assistance of an acquaintance, eventually made contact with the police in April 2008, which resulted in the police locating the body of the deceased and charging Motta and Robinson. The prosecutor described, I think correctly, that your cooperation was of "the highest order". He also accepted that your time in protective custody whilst imprisoned will be more burdensome because of the restrictions that are part and parcel of the nature of that imprisonment. I take this into account.

34 Also to be counted in your favour is your undertaking to give evidence at the committal and trial of Robinson. Your evidence as to Robinson's role in the killing of the deceased will enhance considerably the prospects of the Crown case against Robinson being successful. Previous decisions of this Court and the Court of Appeal emphasise the public policy considerations which entitle you to a reduction of the sentence which otherwise would have been imposed by me. You are entitled to a significant discount on your sentence on account of this factor.

35 I also accept that you have considerable remorse as to your role in assisting Robinson after the killing of the deceased. Also in your favour is the fact that it was by reason of you volunteering information to the police that you have been charged with each of the counts to which you have pleaded guilty.

36 Any assistance provided by an offender in order to prevent the detection of a crime as serious as murder must result in significant punishment. There must be denunciation of that conduct in order to deter others from committing offences of a similar character which give comfort to persons who carry out the most serious of crimes. The offence must, in normal circumstances, warrant the imposition of a custodial sentence.

37 I must consider in determining your sentence whether, pursuant to s 16(3B) of the Sentencing Act 1991, exceptional circumstances have been demonstrated which would entitle me to make an order for concurrency for this sentence and your sentence for life imprisonment for murder, which you are currently serving. Absent exceptional circumstances, the law requires me to cumulate any sentence on the counts before me upon any sentence that you are currently serving.[2] In your case there may well have been a conundrum as the law is also clear that where a prisoner is serving a life sentence a new sentence must be served concurrently and not cumulatively.[3] I have however concluded that in any event pursuant to s. 16(3B) exceptional circumstances have been demonstrated. Understandably, the Crown did not contest otherwise. But for your decision to approach police and then, albeit in a piecemeal fashion, inform them of the circumstances of the deceased's death and the roles that each of you, Motta and Robinson, played, the deceased's disappearance might still be a mystery. You have agreed to give evidence against Robinson. Moreover, you have admitted to other offences of which the police had no knowledge. I am comfortably satisfied that exceptional circumstances have been shown, indeed to the point where, in my view, it is appropriate for you to serve all of this sentence concurrently with the other sentence you are serving at the present time.

38 Finally, there is the question of rehabilitation. I have some, albeit hope rather than confidence, that you will be able to make a genuine effort at avoiding crime upon your release. Your actions in going to the police point to an acceptance of responsibility which may carry you through when released.

39 Your assistance to Robinson was designed to make it difficult for the police to determine what had happened to the deceased, who were faced, for a number of months, with the fact of his disappearance without any other explanation. This is a serious matter. The murder of the deceased was a heinous crime and any person who assisted the person responsible in avoiding detection for the crime, such as you have, has committed a serious offence. In addition, I cannot ignore your prior conviction on a charge of murder. On the other hand, there are powerful mitigatory considerations in your favour. I sentence you to two years, six months' imprisonment on this count.

40 The cultivation of narcotic plants charge is, on the evidence, relatively minor, given the stage at which it had reached and its subsequent abandonment. I sentence you to six months' imprisonment on this count.

41 In relation to the firearms offence, this charge relates only to your carrying of the weapon on that day. It had been restored to working condition by you and was capable of being discharged. You knew that you were a prohibited person and must have known that it was unregistered. However, it was not used or brandished and, I accept, was retained by you as you feared for your own safety. I sentence you to nine months' imprisonment on this count.

42 The handling stolen goods charge is somewhat different. You obtained $1300 and, as your plea demonstrates, knew that this item was stolen. I sentence you to three months' imprisonment.

43 I convict you on each of the counts. Count 3 is the head sentence. I order that Counts 2 and 3 be served concurrently. I order that four months of Count 1 and two months of Count 4 be served concurrently with the sentences imposed on Counts 2 and 3. The total effective sentence is two years, nine months imprisonment. I am satisfied that, pursuant to s 16(3B) of the Sentencing Act 1991, exceptional circumstances exist and I direct that the entire amount of that sentence be served concurrently with the sentence of life imprisonment that you are currently serving. I fix a non-parole period of one year, nine months imprisonment.

44 For the purpose of s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have imposed a total effective sentence of imprisonment of three years and nine months with a non-parole period fixed at two years, nine months.

45 You were born on 17 August 1968 and are now 40 years of age. Your parents immigrated to this country from Sicily and, apparently, worked hard to make a future for their children. Neither your brother nor your sister have, as your counsel says, been involved in trouble with the law.

46 You were educated at Merrilands Primary School and then at several secondary colleges, finishing your schooling at Merrilands High School. Your parents separated and, when out of gaol, you have spent much of your life living with your mother. After leaving school and taking on a number of part-time jobs, in January of 1986 you were involved in a serious transport accident which involved the death of two other passengers, as well as you sustaining nasty injuries.

47 Your record of prior convictions is appalling. I have set them out as best I can in summary form in the schedule attached to these reasons. Since age 18, you have been sentenced to periods of detention, commencing with multiple sentences of detention in a youth training centre and eventually to imprisonment on a regular basis for periods of up to three years' gaol. The most serious of those charges was one of kidnapping and robbery, although I accept, given the length of this sentence, that this was not as drastic a course of action as the charge might suggest. At the times that you have been the subject of suspended sentences you have, to use your counsel's words, "breached those sentences habitually". The longest term of imprisonment that you have served to date is a period between February 1999 and 18 December 2000. You were, during much of your young adult life, addicted to heroin and still use cannabis regularly.

48 Since 1998, you have been in receipt of a disability support pension because of a back condition.

49 On 9 October 2007, you were sentenced to six months' imprisonment for a range of driving and associated offences, which sentence was totally suspended. Your conviction for this offence will, I accept, mean that the Court will revisit this sentence.

50 Since you were released from prison in October 2004, you have lived with your mother and your de facto partner and her children; all of you reside at your mother's house.

51 You have apparently been able to "kick" your heroin habit, although you still consume marijuana regularly. As your counsel submitted, it does appear that there is now an element of stability, to some extent, in your life, although absent employment one wonders what will happen when you are released from prison.

52 Like Campbell, you say that Robinson exerted a significant degree of pressure upon you, notwithstanding that you, as with Campbell, participated in the plan to grow the cannabis plants hydroponically at the Coburns Road house.

53 The Crown does not allege that you had any knowledge of Robinson's intentions in relation to the killing of the deceased. However, it is clear that you participated in the removal of his body and the burying of his body at the gravesite. You also visited the site from time to time to ensure that the body was still secreted.

54 Mr Jeffrey Cummins, clinical psychologist, has provided a report dated 5 February of this year. He concludes:

"In my opinion his history indicates that, at best, he has a chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. ... He indicated at interview he is very concerned about the prospect of incarceration and additionally so because he realised he would most probably be held in protection."

55 Although it may be that you have now, at the age of 40, achieved a degree of stability in your life, your past record cannot give me any great confidence that you will not re-offend again in the future or that there is a real prospect of rehabilitation. I hope that I am wrong, but I do not rate this factor high in my sentencing considerations.

56 You are currently in protective custody and, like Campbell, I accept you have genuine fears of what might happen to you in prison, particularly given Robinson's prior history. This fact is also to be taken into account in your favour.

57 You have undertaken to give evidence at the trial and the committal against Robinson. As I have said with Campbell, this counts significantly in your favour. Similarly, your plea of guilty is to be taken into account. However, the level of your assistance to the police and the Crown is considerably different to that of Campbell. You initially did not disclose your true role in these events to the police and, indeed, deliberately misled them as to what had occurred that night and subsequently. It was only through Campbell's decision to inform the police that the true nature of your role and that of Robinson's crime became evident.

58 I am conscious of the principle of parity in determining your sentence, however this is not a case in which your sentence in relation to Count 2, the accessory after the fact charge, can be treated on a parity basis. Your role and that of Campbell in terms of cooperation with the police differ so markedly that it has no real application. Moreover, you took a far more active role than Campbell in the removal and burial of the body of the deceased. I repeat what I said in relation to Campbell in terms of the sentence that must be imposed. Assisting a person who has been involved in the killing of another is a very serious offence as reflected by the maximum term of imprisonment. It is necessary to denounce such conduct and to make it clear to others that anyone assisting a person who is engaged in such a dreadful crime will, in normal circumstances, face a period of imprisonment.

59 Your assistance to Robinson was significant; you helped him by placing the deceased's body in the vehicle, conveying it to the gravesite, and burying it at Toolern Vale. You also participated in the removal of evidence from the Coburns Road house, evidence which would have implicated it as being the place where the murder occurred. As I have said in relation to Campbell, any person who assists the person responsible for a killing to avoid detection for a crime such as murder commits a serious offence. I sentence you to three years and nine months' imprisonment on this count.

60 As I have said with Campbell, this was an embryonic enterprise and one which was abandoned after the death of the deceased. I sentence you to six months' imprisonment on this count.

61 I convict you on each of the counts. Count 2 is the head sentence, and I order that four months of Count 1 be served concurrently with Count 2. The total effective sentence is, therefore, three years and eleven months' imprisonment. I fix a non-parole period of two years and eleven months' imprisonment.

62 I direct that as at this date the period reckoned to be already served under the sentence I have imposed is 53 days to 29 May. I direct that this be noted in the Court's records.

63 I declare that, pursuant to s 6AA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of four years' and eleven months' imprisonment, with a non-parole period of three years and eleven months.

64 For the avoidance of any doubt I make it clear that pursuant to s. (5)(2AB) of the Sentencing Act 1991 in fixing the sentences imposed I have taken into account the undertakings given by Motta and Campbell to give evidence at the trial of Robinson. I direct that this be noted in the records of the Court and that the details of the undertakings also be noted therein

Impeding the apprehension, prosecution, conviction or punishment of Douglas Frederick Robinson.

Four charges of theft, attempted theft and going equipped to steal.

Driving licence cancelled and disqualified from obtaining a licence for 12 months.

Sentenced to 7 months imprisonment, such sentences being suspended for 12 months.

Sentenced to 1 month on charge 1, such sentence being wholly suspended for 12 months, being released on a community based order for 18 months. CBO cancelled for breach and sentenced to pay fines of $750 on all charges.

Sentenced for a term of detention of a youth training centre for 1 month. Disqualified from obtaining a licence for 4 years.

Sentenced to detention at a youth training centre TES 24 months.

Driving whilst under the influence of drugs or alcohol.

Sentenced for a term of detention at a youth training centre for 6 months.

Sentenced to an aggregate term of detention at a youth training centre for 9 months on all charges.

Sentenced to a term of detention at a youth training centre for 2 months.

Sentenced to TES 3 years imprisonment with a non parole period of 2 years.

Sentenced to a total of 123 months, all sentences to be served concurrently with charge 1 which is a 12 month imprisonment.

Sentenced to 4 months on charge 1, 1 month on charges 2 - 5, 4 days for charges 6 and 7, such sentences being suspended for 12 months and all sentences on charges 2 - 7 to be served concurrently with charge 1. On 15 November 1994 original sentence was restored, making a total effective sentence of 5 months.

Sentenced to 6 months on charges 1 - 3, to be served concurrently and fined $400.

Sentenced to 4 months on each charge to be served concurrently. Intensive Corrections Order.

Sentenced to 6 months on charge 1, disqualified from driving for 12 months, and 3 months on charge 2, to be served concurrently.

Sentenced to 2 months on each charge to be served concurrently.

Sentenced to 9 months on charges 1 - 5, 6 months on charges 6 and 7, 2 months on charges 9 - 11, 14 days on charge 12, 4 months on charges 13 and 14 to be served concurrently, resulting in a total effective sentence of 10 months.

Sentenced to 3 months on charge 1, aggregate term of 6 months on charges 3 - 7, and 11 and 12, to be served concurrently, cancellation of driver's licence, and disqualified from obtaining a licence for 6 months.

Sentenced to 16 months with a non-parole period of 8 months.

Failing to give name and address to a member of police.

Sentenced to 6 months on charge 1 -3 , 3 months to be suspended for 12 months, remaining 3 months to be served concurrently; fined $500.

Sentenced to an aggregate term of 1 month on charges 1 - 4, to be wholly suspended for 12 months, fined $600.

Driving a motor vehicle whilst authorisation suspended.

Sentenced for 6 months, to be wholly suspended for 12 months.

[1] R v Welsh [1998] VSCA 138; (1999) 2 VR 62 [3].

[2] R v Hunter [2006] VSCA 129; (2006) 14 VR 336, DPP v Rongonui [2007] VSCA 274; (2007) 17 VR 571.

[3] R v Jolly [1982] 82 VR 46