R v Saunders [2007] VSC 298

3 En route Richardson told you, referring to Smith, that Ben had killed someone and they needed a hand to get rid of the body. You were shocked by that revelation and Smith confirmed it by saying:

"I've killed someone. We need a hand to get rid of the body. If you don't help me get rid of it, you and your missus are next."

Smith was holding a knife at your throat at the time he said this and thus you agreed to assist him.

4 At the flat you were shown your suitcase. You declined an invitation to look inside and you refused to help Smith and Richardson carry it to the car, which they both did, placing it in the boot. The three of you then drove back to your flat at Flemington and you permitted Smith and Richardson to stay the night.

5 The next day all three of you travelled to the You Yangs Regional Park to dispose of the body of Mr Young. The three of you removed the suitcase from the boot of the car and placed it in a shallow grave that had been dug by Richardson and Smith. The grave was covered with soil, sticks and branches, no doubt in an attempt to camouflage it and the three of you then returned to Melbourne.

6 Richardson gave you a mobile phone and a charger for permitting she and Smith to stay the night. That phone belonged to the deceased. You sold it to a vendor at the Victoria Market and subsequently the police were able to trace it back to you.

7 When you were spoken to by the police on 9 November, you made a statement making no reference to the murder or your activities, other than to say that Richardson and Smith had stayed at your flat and when driving in the car you had noticed and remarked upon a bad smell. Nonetheless, on that occasion you cooperated with the police by making two phone calls and speaking individually to Richardson and Smith telling them that you had been spoken to by the police about the mobile phone. Smith and Richardson were in fact under surveillance. Your calls prompted them to leave their flat and they were later arrested.

8 You were again spoken to by the police on 5 December 2005 at the Seaford caravan park where you had moved because you told the police you were in fear and feared for the safety of your wife and child. During a tape-recorded interview you admitted you had not told the police the whole truth previously because of your fears and you then went on to give the police an account of what you said was your involvement. The next day you accompanied the police to the You Yangs National Park and took them to the grave where the body of Brian Young was found inside the suitcase. You were that day charged with murder and remanded in custody.

9 You were subsequently discharged from that charge at the committal and released on bail on 5 October 2006, having served 304 days in custody. On 3 August 2007 you pleaded guilty to this present offence and on that day you made a further statement to the police detailing your involvement. Indeed, you expanded upon your involvement and gave an account at variance with your answers to the police in the field interview.

10 In the statement, which you have acknowledged before me is true and correct, you state that you and Smith grabbed the suitcase from the car and the three of you took turns dragging and carrying it to a suitable site for burial. It appears that Richardson and Smith dug the grave, the suitcase was placed in it and then covered over with the rocks, twigs and branches and then the three of you returned to South Yarra.

11 You made a further statement to the police on 7 August detailing your assistance and cooperation with them in making the two phone calls to Richardson and Smith on 9 November 2005.

12 You have before me given sworn evidence as to the truth and accuracy of those various statements and you have given an undertaking to the court to give evidence on behalf of the Crown in the case against Benjamin Smith consistently with the content of those statements.

13 You are 34 years old and have admitted 119 prior convictions from 19 court appearances. Your prior convictions include offences for dishonesty and drug-related matters for which you have received various dispositions, including sentences of imprisonment actually served. But you have no prior convictions for offences such as this and apart from two prior convictions for assault with intent to rob, no convictions for violence. You do, however, have an outstanding charge for theft relating to two milk drinks.

14 A report by psychologist, Warren Simmons, was tendered in evidence as Exhibit 1. In it Mr Simmons details your personal history and domestic circumstances which I accept, although I understand that your long-standing relationship with your de facto wife has now come to an end. Mr Simmons details your drug abuse over the years and opines that your past criminal conduct has been motivated by your drug use. You have had a difficult childhood with a strict and physically abusive father.

15 At the age of 13 you were present when your father and sister were shot dead and your mother injured by that sister's boyfriend. This tragic event led to a change in your relationship with your mother which ultimately led to your leaving home at the age of 16 and leading a somewhat itinerant life, ultimately revolving around crime and gaol.

16 You are not principally employed and, as I understand it, your principle income is Centrelink payments supplemented by busking and begging.

17 Since you were released on bail you have, as a condition of that bail, attended Turning Point, a drug and alcohol rehabilitation service, operated in conjunction with St Vincent's Hospital and you have engaged with the Aboriginal Liaison Program.

18 Ms Carter, the Magistrates' Court Aboriginal Liaison Coordinator, gave evidence on your behalf. She has had weekly or fortnightly contact with you whilst you have been on bail and she reports that you have done extremely well on the program. Ms Carter will continue to supervise you until the resolution of the outstanding theft charges.

19 Mr De Bomford, from Turning Point, also gave evidence on your behalf and stated that in his view your commitment to drug recovery extends beyond compliance with your bail conditions.

20 The informant, Detective Senior Constable Williams, gave evidence that you were under daily reporting conditions, that you travelled from Richmond to the Northcote Police Station to report and apart from instances when you have had a legitimate excuse, you have substantially complied with the daily reporting conditions.

21 The maximum penalty for assisting an offender is 20 years' imprisonment. Accordingly, it is properly to be regarded as a serious offence and, in my view, this is a serious example of it. You assisted in removing the body of Mr Young from the scene of the crime. You provided shelter to Mr Smith, knowing that he had killed Mr Young and you assisted him in the disposal of the body thereby assisting in the concealment of the crime and assisting Mr Smith to avoid apprehension.

22 I accept that you were fearful of the consequences to you and your family if you did not cooperate and, indeed, such fear appeared to be genuinely held by you for you expressed it often enough in your conversations with the police and gave that as your reason for moving to Seaford. Nonetheless, you still actively participated in a serious offence.

23 In sentencing you I must take into account the nature and gravity of the offence here committed and in that regard I also take into account the victim impact statements made by Mr Young's mother, brother and sister which each speak eloquently of the grief and loss that they have suffered. I also take into account your role in the actual offence and the need to pass a sentence which will act in denunciation of your conduct and seek to specifically deter you from reoffending in a like manner and signal to like-minded members of the community that if they assist others in the knowledge that a serious offence has been committed, they can expect condign punishment.

24 For all these reasons I am satisfied that a sentence of imprisonment is hereby warranted. However, I am also satisfied that exceptional circumstances here exist that warrant the confinement of such sentence of imprisonment to that actually served. This is so because, first and foremost, you are prepared to give evidence on behalf of the Crown in the case against Smith on his trial for murder. The value of such evidence and the risk to your personal safety by giving it should not be underestimated and the social utility in encouraging persons to come forward and give evidence against principals in the first degree should be encouraged and acted upon to a significant extent.

Secondly, your cooperation with the police in making the two phone calls on 9 November, the purpose of which was to generate incriminating evidence, should also be recognised, particularly as Smith was still at large at that time and presumably you were still fearful of him.

Thirdly, but for your cooperation with the police in taking them to where the body of Mr Young was buried, the grave may never have been located and the family of Mr Young would thereby have been deprived of being able to properly honour their loved one.

25 For these reasons I accept the submission of your counsel, Mr Hartnett, which submission is joined in by the Crown that you should not serve any longer than the period equal to your pre-sentence detention. Any longer period of imprisonment I might otherwise have imposed or any parole period or suspended sentence would, in my view, be likely to expose you to considerable risk if you were returned to gaol.

26 Further, I am satisfied that you have taken modest steps towards your rehabilitation as evidenced by your commitment to the Turning Point Program, your compliance with the strict bail conditions since your release last October and the fact that you will continue, at least in the near future, to be engaged with Ms Carter and the court integrated services, so it is that it cannot be said that your rehabilitation is not without hope.

27 Accordingly, in sentencing you I take into account your plea of guilty and give you a discount for it; your undertaking to give evidence on behalf of the Crown and your cooperation with the police, features which were absent in the case of Richardson and which therefore justified disparity of sentence with that imposed on your co-offender and I take into account also all matters which go in your favour and, without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to 304 days' imprisonment and I declare that you have already served, by way of pre-sentence detention a period of 304 days' imprisonment.