R v Prentice [2008] VSC 623

4 You met the deceased, Bryan Conyers, for the first time a few weeks prior to his death and you became aware that the deceased lived in a caravan at the back of his mother's house. Prior to the murder you were living at 13 Shaftesbury Avenue, Berwick with Matthew Johnson, Mark Morgan and four others. You had been separated from your wife for five months and had been staying there for approximately three months. The deceased's sister, Amy Miller, lived just a few houses away.

5 On an evening in May 2007, the deceased went to his mother's 50th birthday party in Cranbourne. After the party, he stayed with his sister, Amy.

6 On the following day in May 2007, you were driving along Shaftesbury Avenue when you saw the deceased standing in the street. You stopped and spoke to him, had a chat and the two of you decided to go for a drive together in the car. That was your utility.

7 You and the deceased bought some cannabis and drove back to where you were living. I was informed that following this meeting, the deceased attended your place on a regular basis and although he did not know most of the occupants of the house, he did meet and get to know Matthew Johnson and Mark Morgan.

8 The background facts to your actual offending are that in the early hours of Tuesday 22 May 2007, the deceased man was at your address in Berwick. Matthew Johnson gave him $50 and asked him to purchase a $20 deal of cannabis. One of the other occupants of the house dropped him at his home and Mr Johnson was expecting the deceased to return with the deal of cannabis later that day.

9 You returned home between 4 and 5 pm. Johnson was at the address and he was expressing anger at the deceased for not supplying the cannabis and because he thought that the deceased was not answering his phone in an attempt to avoid him.

10 At around 9 pm you, Johnson and Morgan drove to Frankston in your utility. As you were returning, Johnson suggested you drive to the Doveton address where the deceased lived with his mother, to see if he was at home.

11 Johnson got out of the car and the rest of you stayed in the vehicle. Johnson returned about 20 minutes later with the deceased and you all drove back to your home, arriving between 9.30 and 10.30 pm.

12 Johnson led the deceased out to the garage and Morgan went to another part of the house. You went to the garage after Johnson and saw the deceased sitting on a single sofa seat. Johnson was standing in front of him and was questioning him about the money and the cannabis he was expecting.

13 As the Crown stated in the opening which was taken from the statements that you made to the police "However, before the deceased could explain himself, Johnson pulled out a nine millimetre pistol and shot him in the chest. You described the deceased as shaking and gasping for air. You said the deceased did not really make any sound, he was moving his arms around and trying to clutch at his chest." The nine millimetre pistol was black with duct tape on the handle and was a gun that you had seen previously in the hands of Johnson.

14 You left the garage, you went inside and reassured the occupants that everything was alright and that a fire cracker had gone off. You returned to the garage and Morgan was also there at that stage with Johnson. The deceased man was laid out on a tarpaulin on the floor and they were both undressing him. There was a large amount of blood on the deceased's chest and you saw a stab wound to the chest which was in a position higher than the gunshot wound. The deceased man was stripped down to his boxer shorts and the remaining clothing put in a plastic bag.

15 In relation to the circumstances of your actual offending, the Crown put it into two categories; firstly, the disposing of the body and you performed a number of actions in relation to this.

16 Johnson and Morgan wrapped the deceased's body into the tarpaulin and you assisted them by using rope from your utility to secure the body. You backed your utility up to the garage door and helped carry the deceased over to that car. You suggested to them that they dispose of the deceased's body at a quarry in Pakenham.

17 You drove the ute, with the body of the deceased in the rear, accompanied by Johnson and Morgan to the Pakenham quarry. When you found the quarry locked, you drove to a side entrance in an attempt to still dispose of the body at the quarry.

18 After becoming bogged and being pushed back out onto the road by Johnson and Morgan, you suggested that they dispose of the body at a secluded disused house that you knew of at 15 Abrehart Road, Pakenham. You then drove Johnson, Morgan and the deceased's body to Pakenham.

19 The three of you searched the house and after determining no-one was there, you looked for a suitable place to dispose of the body. Johnson and Morgan decided to burn the deceased's body. It is said, that you suggested that they place the deceased on a wooden board on top of some brick piers, to allow the oxygen to circulate beneath the deceased's body, to ensure that it burnt properly. Although you disputed this, in evidence you gave before me, I do note that it is in the signed statement that you made.

20 What was not disputed was, that in order to move the body from the ute to the garage, you found a blue coloured wheelie bin to attempt to put the body in to move it. When Morgan and Johnson tried to fit the body in, it would not fit. You then used a furniture trolley, which you had brought with you and you assisted Johnson and Morgan to move the body.

21 You left the storeroom after the body was taken there and when you returned a short time later, you saw the deceased placed on boards which were on top of brick stacks. Johnson was kneeling over him and cutting into the deceased's abdomen with a six inch stainless steel knife. You believed it was so that Johnson could pour petrol into the deceased's abdomen, to ensure the body burnt.

22 You left the storeroom again and when you returned, you saw Johnson standing over the deceased's body with Morgan. They were pouring petrol into the deceased's mouth and then into his abdomen.

23 You left the storeroom and took the trolley back to the ute. When you returned, you said that you went to the garage and lit your cigarette lighter so that you could see what Johnson and Morgan were doing and that ignited the petrol vapour and started a fire. Johnson and Morgan had to run through the flames and Morgan's hair actually got burnt.

24 In relation to your other acts relating to assisting offenders, it relates to the disposing of other evidence. At the conclusion of the body being burnt, you, along with Johnson and Morgan, loaded the blue wheelie bin onto the ute as it was covered with the deceased's blood, as well as the trolley and then you drove Johnson and Morgan to a house in Doveton. Once there, Johnson spoke to the person living there, telling him they wanted to burn a few things in the steel drum. You and Johnson took the blue wheelie bin and the black plastic bag containing the deceased's clothing into the rear yard and Johnson then poured lighter fluid over both items and lit them.

25 You then drove Johnson and Morgan to the deceased's parents' address, as Johnson wanted to wipe down any surfaces he thought his fingerprints may be on. Johnson had previously been to the caravan and you and Morgan stayed in the utility while this was done. When Johnson returned to the ute, he had two suitcases full of the deceased's clothes and other items. You then drove them all back to the Berwick address where you lived.

26 Once at the Berwick address, the three of you sifted through the deceased's belongings. Johnson found an ATM card belonging to the deceased and a PIN number. This number turned out to be incorrect, then a further search turned up the correct number.

27 You drove Johnson, Morgan and another member of the household to the Bendigo Bank in Main Street, Berwick. The deceased's bank account turned out to only have $7 in it and you then drove all of the persons back to the Berwick address and you went to sleep.

28 Early Wednesday afternoon you dropped Morgan off in Narre Warren and then drove with Johnson to a commercial car wash, where you and Johnson washed the utility and disposed of a piece of carpet, which you had helped Johnson remove from the Berwick address, which contained the deceased's blood.

29 After picking up Morgan, you returned to the Berwick address and you slept until the early hours of Thursday, 24 May 2007. When you woke up you realised that they had left the tarpaulin on the ground after the deceased's body had been removed from it and it was covered in blood, so you returned to the disused house in Pakenham, located the tarpaulin, put it in the back of your ute, drove to a bridge along Bellarto Road between Cranbourne and Pakenham. You then took the tarpaulin out, put it beneath the bridge, doused it with accelerant and set it alight. You and the other member of the household with you, who was not one of the co-accused, then returned to the Berwick address and you went to sleep.

30 On a day shortly after 24 May 2007, you and another person, again not charged, drove to an area adjacent to the Cranbourne Golf Course and burnt the remainder of the deceased's belongings. You also searched the garage for the bullet that had been fired into the deceased and discovered a piece of lead that you believed was the bullet and also noticed that the tailgate on your utility had blood on it and removed it.

31 In your interview, you stated that a few days after Johnson and Morgan were arrested which was 24 May, you took both the bullet and the tailgate to your brother's house in Springvale North for safe-keeping.

32 The body was discovered on Wednesday 23 May 2007, when a security guard for the new estates in the Pakenham area, was informed by another security guard that he heard a smoke alarm going off, in the empty house.

33 At 7.40 a.m. the security guard checked the empty house, saw a blood trail which he followed into the garage and in the garage, he saw the burnt remains of Bryan Conyers and he rang the police and his employer.

34 A pathologist attended the crime scene where the extensively burnt remains of the deceased lay on bricks. The autopsy was later conducted at the Coronial Services Centre on 25 May and the cause of death was determined to be a gunshot wound to the chest. There was also evidence of multiple stab wounds.

35 You were arrested on 4 June 2007 and you immediately started telling the arresting officer the details surrounding the crime and your part in it. You took the police to your brother's house, where they located the piece of flattened lead and the tailgate to your utility. They later commenced a record of interview and during the suspension of the interview, you took the officers to various sites showing the burnt bin, the quarry site, the car wash, where you burnt the remains of the deceased's possessions and where you threw away the carpet and the burnt tarpaulin.

36 You were bailed on 8 June 2007 by the Magistrates' Court and you have, in total, spent 16 days in custody, prior to being remanded by me on the hearing of the plea. Those 16 days related to an arrest warrant I issued, when you failed to appear originally, on the date of your plea.

37 I have received six victim impact statements in this matter being from Bryan Conyers' father, his mother, three sisters and his ex partner on behalf of herself and her son. I hope that you have read them as they indicate quite clearly that this was a much loved son, brother, partner and father that has been so senselessly and so needlessly taken from them.

38 I will take into account the contents of those victim impact statements but nothing I, nor any court does or says, will ever measure in any way the value of this young man's life, that was so pointlessly destroyed.

39 Equally, I want to make it clear to those family members, that you are not pleading to his killing, but to the offence of assisting an offender, that offender being the one who was responsible for the killing. You have given sworn undertakings to give evidence in accordance with your statements, at any proceedings relating to your two alleged co-offenders.

40 I also have to take into account your personal circumstances. You are the middle of three boys born to your parents Lyn and David. Your parents separated when you were aged about 13 and this was said to have had a drastic effect upon all three boys. You attended Our Lady of Lourdes School in Bayswater and St Joseph's Secondary School in Ferntree Gully for part of Year 7, your parents removing you from that school after an incident in which you were bullied and physically hurt. You then attended Boronia Heights Secondary College until Year 10 when you left and commenced two years of a plumbing apprenticeship with your father. This apprenticeship ceased after that time, due to conflict with an older brother with whom you did not get along.

41 You then went to live with your mother and later worked with her second husband for three years as a roofing plumber. You then did some periods with subcontractors around the area, and then ultimately worked for BMG Plumbing for four years. Your services there were terminated just after Christmas 2006 due to you, as it is described in the report of Dr Paul Grech, clinical psychologist: "Going off the rails too many times".

42 It would appear that during your youth you were certainly what could be described as exceedingly difficult. You got involved in drugs, describing yourself as a long term user of cannabis and amphetamine, which appeared to change only at the time of the commencement of your romantic relationship with your estranged wife, Michelle. Your prior convictions relate to thefts in 1996, 1998 and 2001; handling stolen goods in 1996; breach of Community Based Order in 1997; use of cannabis and more concerningly robbery and assault in 1996. The penalty reflects it was not treated as a particularly serious form of robbery.

43 As I stated, it would appear that your offending ceased about the time of your relationship with Michelle, and she described you in the interview that she had with Dr Grech as "Bad boy made good." You met her when you were 16 and were friends for some years, and then became romantically involved. You have a four and a half year old son with her and that relationship broke down just prior to Christmas 2006.

44 You and Michelle were married in May of 2004 and paid for the wedding yourselves, with a little help from both parents. It would appear that you worked hard and your employer Mr Brad McGowan, who employed you for approximately four years, spoke quite highly of you as a worker. But as I indicated earlier, you had become unpredictable and a risk, and that is why he terminated your services.

45 You and your wife had purchased a house with virtually no equity, and as your mother stated in her letter to the court "Neither you nor Michelle were very good savers" and the pressure of the repayment was too much for you when you were removed from being an employee and made a subcontractor. This involved you having to buy a car, make GST payments and be financially more astute, which you were not able to manage. This placed a great deal of stress on your marriage and it did not survive.

46 Your mother described you as inconsolable and it is clear that you returned to the past that you knew which included, unfortunately, cannabis and amphetamine usage. You ended up moving into this house in which the offences occurred, and ultimately the co-offenders who you did not know previously, moved in and you became involved with them in this activity. Your involvement probably initially came due to your shared drug usage. I do believe that you have some prospects of rehabilitation, but you must learn to live without the crutch of drugs and alcohol. You also need to straighten out aspects of your life, including your temper.

47 You are most fortunate that you have the love and support of your family and friends, and also your ex-partner, who all came to court to support you. You have a child that will need your guidance and assistance as he grows. All of those matters give me some encouragement that you do have prospects of rehabilitation, as I stated.

48 You must realise that your offending in this case was of a high level in terms of the type of offence. You were not a parent protecting a child, or a brother protecting a brother or a sister. This was in relation to people who were virtual strangers to you. Whilst there may be some fear that you had of Johnson, and I accept the evidence of Detective Ronke as to the violent tendencies of Johnson, your participation was, in my view, far too extensive to be explained merely as fear. Most people will rush away from what you observed and you gave no indication that Johnson threatened you, to make you comply with his requests. It is equally clear that you provided many of the suggestions as to the locations and the moving of the body. It was put to me that you were only concerned with getting the body off the premises.

49 As I said, whilst I do accept you had certain fears of Johnson which are legitimate, you also had ample opportunity to cease your involvement as it continued on for days, well after any initial shock may have worn off. You were able to sleep and therefore reflect upon this, one would think, a little more calmly but despite that, your involvement continued, as I said, for some days.

50 Counsel submitted that the time you served of 16 days would have been sufficient in term of time to be actually served. I disagreed then and I still disagree. A sentence of that nature would not be appropriate in any way for the offence to which you have pleaded guilty, even with the discount on the sentence that I intend to make. I do not consider that a suspended sentence is appropriate in this case, or even a partially suspended sentence, as I believe you may well need the assistance that the Parole Board can provide on your release.

51 You will receive a significant discount for the co-operation that you have provided and will continue to provide in terms of your statement and your oath to give evidence in accordance with those statements, but there are many factors that have to be balanced in the sentence that the court imposes and there is still the aspect of general deterrence and specific deterrence that have to play a part in the sentencing process. The community equally has a right to expect that the sentence will reflect the criminality involved. This is not a case that falls within the lower range of offences of this nature but is towards the middle or higher middle range of this type of offence.

52 I do take into account your co-operation and your early plea and the fact that your time in custody will be more difficult, due to the fact that you are giving evidence against persons who are clearly violent and dangerous offenders.

53 Balancing all of those factors, for the offence of assisting an offender, you are convicted and sentenced to be imprisoned for a period of three years and I direct that you not be eligible for release upon parole for a period of 18 months. I make the order pursuant to s.464ZF.

54 HER HONOUR: I declare that you have spent 39 days in pre-sentence detention and such be noted on the records of the court.