R v Sumner [2008] VSC 176

3 Shortly before Anzac Day 2005, Daniel was admitted to a psychiatric hospital suffering from acute psychosis and depression the result of smoking cannabis. Two days before Anzac Day, while still in hospital, he told your older brother, Stephen Sumner, that he had been anally raped while under the effects of benzodiazepines and cannabis. At the time of making that allegation, Daniel Sumner was distraught and thought to be at risk of suicide. He had been diagnosed as suffering from a serious drug induced psychosis with consequent florid delusions.

4 The Crown case at trial, which I take the jury to have accepted, was that news of the alleged rape spread rapidly through the Sumner family and by 24 April 2005 you knew of the allegation and knew that the culprit was alleged to be Raymond Allen. You were incensed by what you believed Raymond Allen to have done to Daniel and you resolved to find Raymond Allen and kill him. You learned from one of Daniel's friends that Raymond Allen had recently moved to Mooroopna to live with his father and, on the afternoon of 24 April 2005, you telephoned the Allen residence in Mooroopna and spoke briefly by telephone to Raymond Allen's grandmother. In that way, you confirmed that Raymond Allen lived there. You then telephoned one of your old friends, Shaun Benporath, who had also moved to live in Mooroopna, and told him that you were coming up to see him.

5 At approximately 9.00 pm that evening, you went to see your heroin dealer, Chi Dung Lien, at a park in Napoleon Street, Footscray and you purchased heroin from him. At that time, you told Lien that your younger brother had been raped by one of his friends and that he was so affected that he had attempted suicide and was in hospital. You also told Lien that you believed that the culprit lived in Shepparton and that you intended to find him and kill him.

6 Later that night, you drove to Mooroopna in your mother's Commodore motor car and spoke briefly to Shaun Benporath. Then you drove on a further 70km to Cobram to stay the night with your uncle.

7 The next morning, you drove back to Shepparton and spent the remainder of the day with Benporath, and during the day you made several mobile telephone calls to various people of the name of Allen. Possibly, you had lost or did not have with you the telephone number you had called the previous day, and you were seeking to identify it by a process of trial and error. Eventually, however, you contacted Raymond Allen on his mobile telephone at 2.58pm and spoke to him briefly. You asked him whether he had any marijuana and he told you that he did not, and that he did not expect to get any more until Wednesday or Thursday. A little later, he was seen in the local take-away food shop purchasing food and three soft drinks, although it is not known for whom he bought them.

8 At 4.53 pm you called Raymond Allen again on his mobile telephone and told him that you were in Shepparton. He said that he lived in Gange Street but you said that neither you nor Benporath, who was with you then, knew where that was. Raymond Allen mentioned the Bi-Lo supermarket in the Echuca Road and you said that Benporath knew where that was and that you were at that moment driving up the main road from Shepparton to Mooroopna, and that you would meet him at the Bi-Lo in about 15 minutes time. It is not known what else you said during that conversation, but it is to be inferred that you lured Raymond Allen to the meeting by means of some form of misrepresentation as to your purpose.

9 Raymond Allen left home a few moments later. He did not take anything with him apart from his mobile telephone; not even his wallet. He told his sister and grandmother that he was going to the Bi-Lo to meet you and that he would be back in an hour to an hour and a half.

10 I infer that he walked directly to the Bi-Lo supermarket by the shortest route. It took about 15 minutes and therefore he reached the Bi-Lo at around 6.00pm. He was seen crossing the road near the Bi-Lo at that time walking towards a car pulled up parallel to the kerb at the next intersection. It is probable that it was your car. According to telephone call charge records, you made another call to Raymond Allen's mobile telephone at 6.50 pm of one minute and thirty seconds duration, and it is possible that you were then still arranging to meet. But after that, the call charge records show that you did not make any more calls until 10.30 pm.

11 The Crown case at trial, which I take the jury to have accepted, was that at some time after 6.00 pm or perhaps after 6.50 pm you kidnapped Raymond Allen and subdued him with sufficient force to break his jaw. You then transported him in the back of your mother's Commodore motor car to a property in Christmas Hills where, if he were not already dead, you killed him and buried his body. Along the way, you arranged by mobile telephone for Lien to drive out to Somerton to supply you with more heroin. In accordance with your request, he met you at around midnight on a deserted side road off the Hume Highway near the Note Printing Works at Craigieburn. While there injecting yourself with heroin, Lien asked you whether you had found the boy who raped your brother and you said that you had. You implied that he was on the back seat in your car lying down because he had a broken jaw.

12 After concluding your business with Lien, you drove ahead of Lien's car for some distance north along the Hume Highway to a cross-over, and then south until you reached the intersection of the highway with Cooper Street. From there Lien continued south towards Melbourne and you turned east towards the Christmas Hills property where you killed Raymond Allen and buried his body.

13 The next night you met Lien again at the park in Napoleon Street in Footscray, to purchase more heroin. On that occasion, you told Lien that you had killed the boy by stabbing him repeatedly in the throat after he had begged for his life and that his body was in a concrete pipe either in the forest in the mountains or, as Lien said that he may have heard you say, in a pipe under the road in Melton. I doubt that you said 'Melton'. I think it more likely that Lien misheard you. But whether you said 'Melton' or not, Lien was clear that he heard you say you had killed the boy by stabbing him, and disposed of his body, and it is implicit in the verdict that the jury accepted that evidence.

14 Some days later you went to Lien again to purchase more heroin, on that occasion in a larger amount than usual. You drove to that meeting in your brother, Stephen Sumner's, Toyota High Ace van. You told Lien that the deceased's family had been in contact with members of your family and that you had to do something about the deceased's body because you feared that it could be found where it was. After concluding your business with Lien, you drove off in the van.

15 Days after that, you returned to Lien for more heroin, at which time it appeared to Lien that you were suffering badly from heroin deprivation. You told Lien that you had been to an area near the New South Wales border and that you had disposed of the deceased's body by burning it to dust. You also said that the van had become stuck in the mud in the forest and that you were fortunate that a man with a four-wheel drive had come along and was able to pull you out.

16 The man who pulled you out of the bog gave evidence at the trial. He confirmed that he had pulled a Toyota van out of the mud in the Barmah State Forest at about the time in question and he produced a composite FACE image of the driver of the van. Although he was unable to identify your photograph from a police photo board, the composite FACE image bore a striking resemblance to your appearance.

17 The nature and gravity of your offence are extreme. The jury has found that you intentionally killed Raymond Allen by repeatedly stabbing him in the neck after he begged you not to take his life. It is apparent that your motive was to exact vengeance for what you believed to have been the rape of your brother, Daniel. But as appellate courts have repeatedly made clear, the idea that individual citizens may take the law into their hands is quite mistaken.[1] Even if the allegation of rape were true, it would in no way lessen the gravity of your offence. In fact, however, as was emphasised at trial, there is no proof that the deceased ever raped Daniel Allen or otherwise sexually assaulted him, and there is every reason to suppose that he did not. They were close friends who used to ride push-bikes and play together during their time at school and later after they left school. Raymond Allen was a frequent visitor to the Sumner family home and Daniel was a visitor to the deceased's mother's home. The allegation of rape was made when Daniel was profoundly psychotic and experiencing a succession of bizarre delusions. And at various times Daniel made several versions of the allegation; in one of them accusing an unnamed adult sexual predator.

18 Your offence is aggravated by the fact that the killing was planned, pre-meditated, cold-blooded and committed in secret, and by your conduct in destroying the deceased's body in order to avoid detection.[2] You thereby denied him a funeral and deprived his family of the ability properly to mourn his passing. Your crime is made worse by the deceased's youth. For like Daniel, he was only sixteen years of age, albeit shortly to turn seventeen, and plainly he was a vulnerable victim. I judge your culpability and responsibility for this offence to be high.

19 Equally disturbing is the fact that you show no signs of remorse. You pleaded not guilty, as was your right and for which you are not to be punished.[3] But even now, in face of the jury's verdict, you continue to deny your involvement. As the deceased's grandmother and sister showed in their evidence at trial, and now appears more clearly in their victim impact statements, they are devastated by the deceased's death and the manner in which he was killed. It is probable that it will take a very long time for them to overcome their anguish. Yet, from all that appears, you do not have the slightest regret or contrition or empathy towards them.

20 Despite your continued denial of guilt, it was submitted in mitigation of penalty that, at the time of your offending, you were a daily heroin user and that your heroin addiction had led you to a life-style whereby you let your family down. Thus it was to be inferred, it was suggested, that your heroin addiction and attendant life style made you prone to extravagant displays of family allegiance as a means, in your mind, of redressing your shortcomings. So it could be inferred, it was submitted, that your offending was informed subconsciously by thinking of that kind.

21 I do not accept the submission. Although I allow that you were addicted to heroin, and that you had let down your family badly as a result of it, your refusal to accept the jury's verdict, and therefore not to instruct counsel as to what you had in mind when you murdered Raymond Allen, leaves me in the position where I can do no more than speculate as to whether there is anything in the analysis which counsel proffered. Whatever the effects of your heroin addiction may have been, there is nothing in the evidence sufficient to support the existence of mitigating circumstances of the kind suggested.[4] Nor is there anything to show that your thinking was compromised by the presence or absence of heroin in your system. Such evidence as there is suggests that the heroin which you took was likely to have made you feel and think normally for some hours after injecting; and it is to be noted that you injected with heroin at Somerton with Lien shortly before driving on to Christmas Hills to complete the killing.

22 Counsel further submitted on your behalf that your offending was to be seen as the result of a dysfunctional family life and the absence of an appropriate father figure. Your father was sent to gaol in 1987 when you were only nine years old and, as counsel explained, apart from a relatively short break he remained in gaol for a total of seven years. Consequently, your mother had considerable financial problems in simply keeping the family going and you were sent on occasion to live with your grandparents. That led to restlessness and truancy, time on the streets, some stealing and window breaking and other petty adolescent offences.

23 You left school at 14 years of age and got a job in Hungry Jack's restaurant. But you began to smoke marijuana in 1993, and in 1994 when you were 16 years of age you were brought before the Children's Court for several offences of unlicensed driving, obtaining property by deception, burglary, assaulting police, possession of cannabis, theft, making threats, theft of a motor vehicle and a variety of similar transgressions. The Children's Court attempted to provide guidance by subjecting you to a supervision order, and that led to your involvement in the 'Break the Cycle' programme and employment in Sizzlers restaurant in 1995. To your credit, you there advanced from kitchen hand to manager. But you lost that position in 1997 when Sizzlers became insolvent.

24 At the age of 18 you were introduced to heroin by a friend and in the same year you were found guilty of offences of stealing, using amphetamines and cannabis, burglary, going equipped to steal and criminal damage and driving offences. On that occasion, you were sentenced to a community based order.

25 In 1999 you obtained employment as a storeman with Magnafield, which I was told was a company that distributed and serviced computers, and in time you were promoted to sales and maintenance positions advancing to the level of assistant manager. But you left that work when you were unable any longer to cope because of your drug dependency.

26 By 2000 you had become a daily heroin user and in 2001 you were sentenced to a combined custody and treatment order. But regrettably, it had no more beneficial effect on you than the supervision order previously imposed by the Children's Court. In the years which followed until 2005, you committed and were repeatedly found guilty of an increasing range of offences of theft, cheating, possession of drugs, and driving while unlicensed. By that time, as counsel put it, you were spiralling out of control and continued to do so all the way up to the murder of Raymond Allen.

27 I accept that those are considerations which are relevant to the sentencing exercise albeit not of themselves a mitigating factor.[5]

28 Counsel argued on your behalf that since being arrested for this offence you have done something positive about turning your life around. You have remained drug free for the whole period in which you have been in gaol, as demonstrated by your voluntary subjection to regular urine testing throughout that period. You have completed courses in occupational health and safety, food handling, worker safety and kitchen hygiene, as well as drug education programmes and drug relapse prevention programmes, and you have been appointed a billet within the prison kitchen which means that you are a trusted prisoner. You have, too, mastered word processing to a level whereby you were able to deliver all your instructions to counsel in typed form. In counsel's submission, all these things auger well for your eventual rehabilitation.

29 I agree with that submission up to a point. Your change in attitude, your abstinence from drugs and the other significant steps which you have taken to improve yourself are commendable. But, in my view, until and unless you accept the jury's verdict and acknowledge your wrongdoing, your chances of rehabilitation will remain limited.[6]

30 The maximum penalty for murder is life imprisonment and, although I do not regard that as an appropriate penalty in your case, I consider that it is necessary to impose a lengthy sentence of imprisonment in order adequately to reflect the court's abhorrence and denunciation of your crime, to provide just punishment and to deter others from taking the law into their own hands in the way that you did. Your criminal history and failure to respond to previous therapeutic sentencing orders implies that there is also a need for a level of specific deterrence. I accept that, in view of the progress you have made in prison, the chances of you re-offending are less now than once they might have been. But your refusal to accept the jury's verdict and acknowledge your crime detract significantly from the weight which I am prepared to accord those improvements.

31 In imposing sentence, I am required to have regard to current sentencing practices. As is to be expected, sentences for murder vary significantly according to the circumstances of the case. But such trend as may be discerned is indicative of a total effective sentence of substantially more than 20 years of imprisonment for an offence of this nature and gravity and your level of moral culpability.[7]

32 Finally, I take into account for the purposes of totality that, at the time of your arrest on 19 December 2005, you were serving an aggregate sentence of 18 months' imprisonment imposed on you by the Magistrates' Court on 9 December 2005 in relation to other offences, and that it was not completed until 3 April 2007. That means that the sentence which I am about to impose on you is less than otherwise it would have been.

33 Balancing those considerations as best I may, and bearing in mind in particular the nature and gravity of your offence, your refusal to accept the jury's verdict and acknowledge your offending, your lack of remorse and your prospects of rehabilitation, I have determined that you should be sentenced to a term of imprisonment of twenty-two years with a non-parole period of eighteen years.

34 I shall also make orders pursuant to s.78(1) of the Confiscation Act 1997 for the forfeiture to the State of the items of personal property that were used or capable of being used in connection with the murder of the deceased.

35 Jamie Leslie Sumner, on the count of murder of Raymond Allen of which you have been convicted, I sentence you to twenty two (22) years' imprisonment. I set a non-parole period of eighteen (18) years. I declare that the period to be reckoned as already served under the sentence I have imposed on you is (417) days, inclusive of today's date. I direct that there be noted in the Court's records the fact that the declaration has been made and its details and I make the order for confiscation of property to which I have referred.

[1] In DPP v Whiteside and Dieber [2000] VSCA 142; (2000) 1 VR 331, 339[24] (Brooking JA); see also R v El-Ahmad [2004] VSCA 93[39].

[2] R v Kellisar [2001] VSCA 224[12].

[3] R v Gray [1977] VicRp 27; [1977] VR 225, 231; R v RND [2002] VSCA 192[19]-[26] (Ormiston JA).

[4] Cf R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276[32].

[5] R v Bernath [1997] 1 VR 271, 275-6; Douglas and Albone v R (1995) 56 FCR 465, 470; R v Henry & Ors (1999) 46 NSWLR 347, 382[174], 384[193]-[194], 398[276].

[6] R v Schioparlan and Georgescu (1991) 54 A Crim R 294, 301.

[7] See, for example, R v Mangione [2006] VSCA 34; R v Guthrie & Nuttal [2006] VSCA 192; R v Pyke [2006] VSCA 265; R v McCullagh (No 3) [2007] VSCA 293.