R v Spark [2009] VSC 374

2 You Gordon Spark are 39 years of age having been born on 24 July 1970. You have admitted five prior convictions, all in the Magistrates' Court. The first three in 1989, 1990 and 1991 all relate to driving offences such as driving in a careless manner, exceeding 60 and exceeding the speed limit by 30 kilometres and have no relevance to the matters with which I am dealing. The two prior convictions that have any degree of relevance are, first, at the Magistrates' Court at Ringwood on 29 March 2005, which was 2 counts of breaching the terms and conditions of an intervention order and an unlawful assault and you were sentenced to pay an aggregate fine of $600 and, secondly, at the Magistrates' Court at Ringwood on 16 August 2005, breaching the terms and conditions of an intervention order, again, two charges and you were sentenced to pay an aggregate fine of $500.

3 The circumstances of the offending in this case are to a large degree complicated by the family relationships of your extended family. In July of 1970 you were born in Shepparton to your mother Elizabeth, who was 18 at the time, and an unknown male. You were "adopted" by your maternal grandparents and grew up as the equivalent of one of their children, in other words, as a brother to your mother. You were approximately eight years younger than the youngest of the nine children of your grandparents, Myrtle Spark and Hector Gordon Spark. Both of those persons are now deceased. Those siblings are John Spark, George Spark - the deceased in this matter, Lindsay Spark, Paul Spark, Elizabeth - your mother, Joan Bright, Susan Spark, Heather Osmay and Beverley Sly.

4 You remained close with some members of your family and not close with some others, losing touch with some altogether. Your uncle George Thomas Spark was aged 60 when he was killed. Around 1974 you, your grandparents and siblings moved to the Preston area. Ultimately, the deceased remained in Nagambie for some time but finally moved to Melbourne to live with his parents. After the death of your grandfather, George Spark and your grandmother - his mother, moved into rented premises at 100 Gower Street, Preston. In May of 2006 your grandmother died and George Spark continued living at the premises. He was in receipt of a disability pension and had become more and more withdrawn from society over time. He kept his money on his person and he was reluctant to socialise, even with family.

5 You had earlier married and were the father of two children, Joshua who was 14 and Benjamin 8. You and your wife were divorced and you became the primary carer of your children.

6 In 2007, after the death of your grandmother, you and your two children moved to Queensland, in an attempt to get to know your own natural mother, Elizabeth. This apparently did not work out and in November 2007 you returned to Melbourne.

7 Prior to returning to Melbourne, you actually contacted the deceased, George Spark , and asked if you could stay temporarily at his house until you could find permanent accommodation. He agreed, but was far from happy about the arrangement. You and the two children, had to sleep in the one bedroom.

8 George, became even more withdrawn after your arrival with the children at the end of November 2007. Arguments developed between yourself and the deceased, in regards to a number of matters, including, the treatment of your grandmother's dog, the deceased's treatment of your children, and the deceased's view on the behaviour of your children.

9 On Friday, 21 December 2007 you had taken your children to their maternal grandmother in Benalla for a pre-Christmas visit. You left the children there overnight and on your return you found that the deceased, George, had not left the house open and you had no keys. He had refused to provide keys to you, and you had to climb in through a window, to gain access.

10 The next morning you and George had an altercation and you have stated to the police, and clearly the Crown have accepted, that at this stage George threatened to treat your children in the same way as he had treated you in the past. That was a reference to the fact that, you stated you had been sexually abused by the deceased when you were aged between 8 to 14 years, which was approximately the age of your two children, at that time. You believed that to be a reference to the fact that George was threatening to abuse your children. You became enraged and you punched George, who fell onto the sofa, where he continued to make derogatory comments.

11 You told the police, that you walked out of the room and returned with a baseball bat. The deceased was still sitting on the couch. You then hit him a number of times, to the head, with the baseball bat. You then dragged the deceased onto the floor, into the middle bedroom, which was your grandmother's old bedroom. This was around 10 am in the morning of Saturday, 22 December. You left the deceased in the bedroom until late in the evening, when you placed him into the rear compartment of your station wagon. You then drove from Preston to Hughes Creek Road in Seymour, to a camping and barbecue area with which you were quite familiar. You removed all the clothes and belongings from the deceased and burnt them in a fire that you had lit. According to your record of interview, the deceased man was carrying approximately $8,000 cash, which you kept. You dragged George to the side of the creek, removed an axe from your car and used it to dismember George Spark. You then placed the head, torso and legs into three different wombat holes, on the opposite side of the creek, and covered the holes with bracken and twigs. You drove from Seymour to Benalla to collect your children and subsequently returned to Preston.

12 You later contacted the sister to whom you are closest, Beverley Sly, and told her that George had gone missing. The process of treating George Spark as a missing person, started on that day, and continued on for many months.

13 You ultimately moved with your sons to other premises in Lilydale utilising, it would appear, the money that you had taken from the deceased man, to enable you to pay the bond and rent on your new apartment. Police made many enquiries as to the whereabouts of George Spark and there was, of course, no sign of him or any activity on his part. The matter was handed to the homicide squad and on 14 June 2008, forensic officers attended at the premises in Preston and found a bloodstained couch and other items. You were present and then made a full confession and took the police to the area in which you had disposed of the body. A post-mortem showed that blunt force injury to the head had occurred, which is consistent with what you told the police.

14 This matter initially commenced as a trial, with the Crown proceeding with a charge of murder, and your counsel putting to the jury, that you were indeed the person who had killed George Spark, but that you had done so on the basis of defensive homicide, due to the threats to your children, as you perceived them.

15 Shortly after the trial commenced and the witness Beverly Sly gave her evidence, it became clear that there was material that may in fact be capable of corroborating your version of the sexual assaults, that had occurred upon you by the deceased, when you were a young child. An adjournment was granted for a period of a day and, ultimately, the Crown accepted your plea of guilty to defensive homicide and the jury were dismissed.

16 I received three victim impact statements, being Exhibit 2. One from Heather Osmay, one from Paul Sparks and one from Beverley Sly - they were all siblings of the deceased man George Spark. I have read those victim impact statements and I take into account only the relevant parts, particularly in respect of the victim impact statement given by your brother Paul. The situation, in which the family find themselves, is very well summed up in the victim impact statement of Beverley Sly when she said:

I lost my brother George to a horrible death and I love him very much and always will but I also love my brother Gordon, but I can't change what has happened to me - I have lost two brothers and that's a lot to take on for one person.

17 The deceased George Spark was a difficult man in some respects; he was reclusive, argumentative, secretive, but he was also loved and cared about by his family, and it is clear that some members of the family will miss him for a very long time.

18 You, through your counsel, indicated at the end of the committal proceedings that you would be prepared to plead guilty to an appropriate presentment. Such appropriate presentment being, either manslaughter or defensive homicide. The first offer was made in writing in November of 2008, in regard to manslaughter which was rejected, and a later offer was made on 2 July, offering to plead guilty to defensive homicide, which was also rejected. You are entitled to a sentence reduction on the basis of your plea of guilty. It has saved the court and the community the time and expense of a trial.

19 Equally, I am of the view that it has demonstrated remorse. The reading of your record of interview clearly indicated your remorse, as did the report from the psychiatrist Dr Ruth Vine, dated 30 October 2008 (Exhibit 7). On page 4 of that report she states:

He had a restricted affect and was tearful, especially when talking about his boys and about details of the offence. He was able to describe his sense of disappointment in himself, his perplexity at his behaviour and his feelings of shame at having let down his family. He said "I know I have to live with this for the rest of my life". He denied feeling anger or hate towards George saying that he knew his actions were his responsibility and that he had to accept that.

20 I also have to take into account your personal circumstances. As I indicated earlier, you are the child of Elizabeth, born out of wedlock when she was 18. Your mother had another given birth to a child two years earlier than you, a son named Stephen, who was adopted out and you have never met.

21 You were raised as a sibling, amongst your nine aunts and uncles and I am told, that you were informed that Elizabeth was in fact your mother, when you were aged about 11. Your mother Elizabeth married a man by the name of Mervyn Thompson and lives in Queensland. She had three children from that marriage who are now 35, 33 and a child who died young, from a brain aneurism. Your grandfather, who raised you as if he was your father, died in 1979 when you were aged 8 or 9. You have very fond memories of him. He was confined to a wheelchair and suffered from diabetes and the effect of war wounds from the second world war. He was about 10 years older than your grandmother. Your mother came to visit the family when you were aged about 11 at Christmas-time, and on that occasion, you were in fact informed, that she was your mother.

22 You and the family initially lived at Wahring, north of Nagambie and you attended Nagambie Primary School. The family then moved to Preston, where you attended the Preston North East State School and when you were in grade 4 moved back to Seymour. You attended the Seymour State School for a year, the family then moved back to Collingwood. You remained there and attended the Collingwood Education Centre until Year 10 at the age of 16. You left school and began work as a trade assistant for approximately two years, then commenced an apprenticeship as an electroplater, which you didn't finish, worked in injection moulding and then, in time, a brake company. You did a number of other jobs and ended up working as a workshop manager at Eastland Suzuki, despite not having any trade qualifications.

23 Your employer made a statement, which was part of the depositions, in which he said that you were a particularly good, responsible and capable employee.

24 You left home at 16, when you became employed and initially lived with one of your sisters for a couple of years, and then with a girlfriend. You then met your wife. You lived together for 13 years, eight of which you were married. After the break up of the marriage you moved out and the children stayed with your wife, for about a month and then, they moved in with you in December of 2004. The children remained with you as the primary carer, until you were arrested for this matter. Your wife had access during school holidays and alternate weekends.

25 The prior convictions relating to breaching of the intervention order, related to a time when you and your wife were going through the initial throes of divorcing and it was far from amicable at that stage, but ultimately the relationship sorted itself out and the orders for custody for you, were by consent. Equally, it should be noted that, your wife wrote a lengthy and glowing character reference for you, in relation to this offence and I take that into account, when assessing your prior history.

26 You went to Queensland, as I indicated, to try to allow the boys to get to know their grandmother, but that did not work out and you returned to Melbourne, in the circumstances to which I have referred - moving in with the deceased George Spark. On your return to Melbourne, you regained employment where you had previously been employed, but it was on a part-time basis due to the amount of work available. You were endeavouring to save the money, so that you could rent a premises closer to employment and to where your sons were attending school, which was in the Lilydale area.

27 As a result of being arrested, your two sons now reside in the care of your former wife. You still maintain a good relationship with your children. You speak to them on the phone and they have been to visit you. I have received a reference from your ex-mother-in-law, Lynda Hart, in which she speaks highly of you. She also speaks extremely highly of you as a parent. She talks about the dysfunctional family from which you came, but states:

He desperately wants to develop himself and provide a work ethic and stable environment for himself and a forward prospective to bring up his sons. As his ex-mother-in-law I have faith in trusting Gordon to be the father he longs to be and will support him however I can.

28 Your former employer, Norman Deane, from Performance Tyres and Auto stated in his reference:

To the best of my knowledge Gordon has never had a drug nor alcohol problem. He has never been financial and never tried living as though he was. Gordon has been well liked in the workplace by staff, customers, suppliers always well spoken and polite. When I found out about the charges put against Gordon I spent two days in disbelief and still cannot believe it. You could only imagine that it would be in defence of his children as that was what he lived for and now his children are not with him. For a dad so in love with his kids this would be hurting more than anything. I would imagine anyone who knows Gordon would feel the same way as I do. What a sad thing to happen to such a great mate and work colleague.

29 All of those are matters which I will take into account in your favour, but equally I have to balance those matters against other facts and issues. One of those is the dismembering of the body and the taking of the $8,000 that the deceased was carrying. The circumstances were that the deceased was very frugal and spent very little money and, although on a disability pension, managed to accrue a sum of money which, you said to the police, was approximately $8,000. He did not trust banks and carried it on his person at all times. When you killed him and took him to the bush, you stripped him and removed the money. You used that money to rent premises, including paying the bond, rent in advance and for other purposes. This is not a circumstance that I treat as an aggravation of the offence, as it is a discreet and separate offence with which you could have been charged, and accordingly ought not be used to increase your penalty.

30 Equally, you dismembered and hid this body. You convinced everyone that he was a missing person and you kept up this deception for some months. I find that matter to be an aggravating circumstances that I take into account, when imposing the sentence.

31 Defensive homicide is a new offence and there have only been six sentences passed in relation to that offence. I have read all of those sentences[1]. There have been no sentences dealt with yet on appeal. Those sentences vary according to the circumstances of the offence, the level of remorse, the entry of the plea and other factors.

32 Balancing all of those matters to which I have referred, including your plea of guilty your remorse, your character prior to this offence, the circumstances under which the offending occurred, your prospects of rehabilitation which I find to be very good and taking into account those matters which are in aggravation of the penalty, you are hereby convicted of one count of defensive homicide and sentenced to be imprisoned for a period of 7 years. I direct that you are to serve a period of 4 years and 9 months before becoming eligible for parole.

33 This may be considered by some a merciful sentence, but the circumstances demonstrate that specific deterrence is not a key issue in your sentencing, as I find that your desire to be reunited and involved in your sons lives is a significant factor that mitigates strongly towards your rehabilitation.

34 Pursuant to section 6AAA of the Sentencing Act I am obliged to indicate the sentence that I would have passed but for your plea of guilty. Whilst that is an almost impossible task in circumstances such as this, doing the best that I can, I state that the sentence would have been 9 years with a minimum of 7.

35 I declare that you have spent four hundred and fifty four days in pre trial detention and that such should be noted in the records of the court.

36 Application for Retention of a forensic sample 464 ZFB(1) and the Disposal Order sought by the Crown are consented to.

[1] R v Smith [2008] VSC 87, R v Edwards [2008] VSC 297, R v Rosario Giammona [2008] VSC 376, R v Mahmoud Taiba [2008] VSC 589, R v Callum Zane Smith [2008] VSC 617, R v Jason Baxter [2009] VSC 178