Ryan, Trabert and Lindholm v The Queen [2016] VSCA 255

Court of Appeal (Vic)|2016-10-20|Before: Mr J, Weinberg JA, Whelan JA, Priest JA

R v Lindholm [2015] VSC 739 (Lasry J)

CRIMINAL LAW - Application for leave to appeal against sentence - Manifest excess - Murder - Applicants co-offenders - Applicant Ryan sentenced to 31 years imprisonment with 26 years non-parole period - Applicant Lindholm sentenced to 25 years imprisonment with 21 years non-parole period - Applicant Trabert sentenced to 28 years imprisonment with 23 years non-parole period - Sentences not manifestly excessive - Leave to appeal refused.

CRIMINAL LAW - Application for leave to appeal against sentence - Parity - Co-offender Lindholm pleaded guilty to murder - Applicants Ryan and Trabert pleaded not guilty - No arguable basis that principle infringed - Sentencing differential reasonably open - Disparity insufficiently marked or manifest - Leave granted - Appeal dismissed.

1 On Wednesday 11 December 2013, Wayne Amey and Robyn Lindholm were due in court in relation to a property dispute between them. Neither of them appeared. This was because Lindholm had arranged for Amey to be murdered the night before by Torsten Trabert and John Ryan.

2 Lindholm had been actively seeking to procure Amey's murder for some two years. At the time of the murder Trabert was in a relationship with Lindholm. She persuaded him to kill Amey. The reason she wanted Amey dead was the property dispute and the legal proceeding in relation to it.

3 Lindholm and Amey commenced their relationship in about 2003 and they began living together in August 2005. They purchased a property together at Bittern. In 2010 the relationship began to break down. Amey engaged lawyers who proposed that the Bittern property be sold. This led to a bitter property dispute between Amey and Lindholm.

4 Lindholm began expressing the desire to have Amey murdered, and began taking steps to bring that about, from late 2011 or early 2012. She tried to persuade associates of hers to kill Amey, and Amey was threatened. She and others conducted surveillance on Amey's movements. In April 2012 she broke into Amey's apartment. She had a swipe card which she could have used to gain entry but she did not use it because, she told an associate, if something happened in the future it would look like she did not have access to the property.

5 In about the middle of 2013 Lindholm began a relationship with Trabert. One feature of their relationship was frequent methylamphetamine abuse.

6 On 21 November 2013 Lindholm, Trabert, and an associate of Lindholm's in prison, spoke on the telephone. The call was recorded. In that call, after Lindholm specifically referred to the court hearing on 11 December 2013, Trabert said he was planning that Amey would not make it to the hearing and Lindholm emphasised that what they were proposing to do in relation to Amey had got to be done before that date.

7 Ryan was introduced to Trabert by Lindholm. Ryan was also a frequent abuser of methylamphetamine.

8 On the evening of Tuesday 10 December 2013, the night before the court proceeding was listed, Trabert and Ryan, at Lindholm's instigation, went in a borrowed car to the apartment block where Amey lived and used the swipe-card, given to them by Lindholm, to access the carpark. The sentencing judge found beyond reasonable doubt that the intention of all three of them was that Amey should be killed.

9 Trabert and Ryan lay in wait for Amey who returned to the carpark late that night. As Amey got out of his car and walked towards the elevator he was attacked by them. He was struck on the head with a baseball bat and was kicked. Blood stains left on the floor of the carpark were seen by his son the next day. Still alive, Amey was placed in the boot of the car Trabert and Ryan had borrowed, and that car and Amey's own car were driven from the underground carpark.

10 After leaving the underground carpark, Trabert attempted to enlist the assistance of another person in 'finishing off' Amey. That person refused to be involved. Amey was heard begging for his life from the boot of the borrowed vehicle.

11 Trabert and Ryan then murdered Amey. His body was hidden at a remote bush location. Subsequently, Trabert led police to that location. Post-mortem examination revealed that Amey had multiple stab injuries to his chest, fractured ribs, pallor and furrow to the left side of his neck in association with a rope, and multiple lacerations to his scalp. The opinion of the forensic pathologist was that Amey's death was a result of one or more of these injuries. The evidence was that it was difficult to determine which of the injuries led directly to the death but that there were a number of possibilities including that the stab injuries or fractured ribs could have been associated with a pneumothorax (collapsed lung), that the rope found around the deceased's neck had caused death by neck compression, and that blunt force injuries to the deceased's head had caused diffuse brain injury.

12 The three offenders used Amey's cards to attempt to obtain cash, and they destroyed the borrowed vehicle by setting it alight. They were all apprehended within days of the murder.

13 Lindholm pleaded guilty to murder at the conclusion of pre-empanelment argument on her trial. Trabert and Ryan pleaded not guilty, each maintaining that the other was the one who had killed Amey. The jury found each of them guilty of murder.

14 Following a plea hearing on 16 September 2015, on 17 December 2015 the sentencing judge imposed the following sentences:

Other orders: Sentenced as a serious violent offender

15 Each of Lindholm, Trabert and Ryan now seek leave to appeal their respective sentences. Lindholm seeks to argue the sentence imposed upon her is manifestly excessive. Trabert and Ryan each seek to argue their respective sentences are manifestly excessive and that there was a failure to give effect to the principles of parity. The applications were argued on the basis that if leave were granted the Court would determine the appeals forthwith.

16 The sentencing judge set out the circumstances of the offending in greater detail than we have done. He characterised the offending as 'very high on the scale for the offence of murder'.[1] He enumerated 15 reasons why he concluded that each of the offenders had intended that Amey be killed.[2] There is no challenge to that conclusion.

17 The sentencing judge referred to Lindholm's personal circumstances. At the time of sentence she was 42 years of age. She had had a good secondary education and had begun a science degree at Monash University. She later moved to a TAFE College to study animal husbandry. She had been actively involved in ice-skating, where she had achieved some competitive success, and in horse-riding. Her parents were still alive at the date of sentence, and they supported her and had visited her in custody.

18 Lindholm had been employed in a variety of occupations. She bought a property at Glenhope in 1993. When she began her relationship with Amey, the Glenhope property was sold, at what was seen as a very poor price. The two of them then bought the property at Bittern together.

19 After her relationship with Amey broke down she formed two further relationships before beginning her relationship with Trabert. At least one of those relationships was characterised by frequent methylamphetamine abuse.

20 The sentencing judge recorded that Lindholm had pleaded guilty at the conclusion of pre-empanelment argument. He accepted that the plea was of significant utilitarian value.[3] The sentencing judge observed that he was sure that Lindholm regretted the circumstances in which she found herself but said he doubted very much whether her regret was for the wrong which she had committed.[4]

21 The sentencing judge referred to Lindholm's prior criminal history. She had convictions in the Magistrates' Court for offences of theft, going equipped to steal, criminal damage, and alcohol and drug offences. The sentencing judge found that they were not significant matters in the context of the offence for which he was sentencing her.[5]

22 The sentencing judge then set out Trabert's personal circumstances. He was aged 46 years at the time of sentence. He had finished his secondary education at Year 10 level and had worked in a variety of jobs, most commonly driving heavy trucks. He had been married and was separated.

23 In 2003 Trabert's mother had committed suicide which, the sentencing judge was told, had had a significant effect upon him emotionally. The sentencing judge found that Trabert suffered from depression. He had attempted suicide. The sentencing judge recorded that Trabert's IQ was apparently low and that he had cognitive deficiency caused by consumption of drugs, in particular methylamphetamine. The sentencing judge found:

I am satisfied that your depressive condition preceded your offending and I am prepared to accept that condition will add to the difficulties you face in serving your sentence.[6]

24 Trabert had one prior court appearance which the sentencing judge accepted was of no significance in the context of the offence for which he was sentencing him.

25 The sentencing judge set out Ryan's personal circumstances. He was 38 years of age at the time of sentence. He came from a law-abiding, hardworking family who still supported him. His education had also finished at Year 10 level. He had worked in manual labouring jobs.

26 Ryan had formed relationships with two women and had had children with each of them. These relationships had failed. Ryan had been an abuser of drugs for many years.

27 The sentencing judge recorded that Ryan had a criminal history beginning in 1995 which included assaults, contraventions of family violence intervention orders, and making threats to kill. As a consequence of his prior offending, and the sentences which had been imposed, Ryan was to be sentenced for the offence of murder as a serious violent offender pursuant to s 6D and s 6F of the Sentencing Act 1991.[7]

28 In his conclusions the sentencing judge said that this had been a carefully planned and callous crime.[8] He indicated that the sentencing considerations of general and specific deterrence as well as denunciation were of particular importance.[9]

29 The sentencing judge said that Lindholm was entitled to recognition of her guilty plea but that he did not accept that she was remorseful.[10]

30 He said that Trabert was entitled to have his lack of relevant prior convictions recognised in the sentence and also the assistance which he had given the police in locating Amey's body.[11] The sentencing judge said that he doubted that that assistance had been offered out of a sense of remorse as opposed to the hope that he would gain some tangible sentencing benefit from doing so.[12]

31 The sentencing judge said that Ryan had a more serious criminal history and was to be sentenced as a serious violent offender.[13]

32 The sentencing judge then imposed the sentences to which we referred earlier.

33 On Ryan's behalf it was submitted that whilst the offending was a serious example of murder it was not at the 'highest end', and that the sentence imposed was manifestly excessive having regard to the extent of Ryan's personal involvement, and to his personal circumstances. It was submitted that there was little evidence about Ryan's involvement prior to the day of the murder but that that involvement was 'very late' compared to the others. It was accepted that Ryan knew what was going to happen when he left with Trabert on the night of the murder. In relation to his prior convictions it was submitted that they had all been dealt with in the Magistrates' Court and that the offences had generally been committed over a short period in his life.

34 As articulated in the oral submissions, the submission on behalf of Ryan as to parity was that the sentence imposed on him ought to have been very close to the sentence imposed on Lindholm. Although she had pleaded guilty, it was submitted that Lindholm's culpability was significantly greater than Ryan's. In relation to Trabert, the submission was that the disparity was 'not so stark'. It was submitted that their roles in the offending could not be distinguished. It was accepted that Trabert could rely upon matters upon which Ryan could not rely; being, his assistance to authorities, his mental state, and the absence of relevant prior convictions.

35 On behalf of Lindholm it was submitted that the sentence imposed on her was well above the median sentence for murder and that the circumstances did not warrant that. Reference was made to a series of sentences in other cases which were said to show that the sentence which had been imposed on Lindholm was 'unmistakably outside the range'.[14] It was submitted that the sentencing judge must have given insufficient weight to Lindholm's guilty plea, undue weight to Lindholm's role as instigator of the murder, and undue weight to Lindholm's conduct in seeking to persuade others to undertake the murder prior to convincing Trabert to do so. It was submitted that whilst this was a pre-meditated killing properly seen as very high on the scale of murder, some features of the worst forms of murder were absent, such as torture, destruction or mutilation of the corpse, extreme violence, or a very young or otherwise vulnerable victim.

36 On behalf of Trabert it was submitted that the disparity between the sentence imposed on Trabert and that imposed on Lindholm was not reasonably open. It was submitted that this disparity must have been produced by a failure on the part of the sentencing judge to give proper weight to the assistance which Trabert had provided in leading the police to Amey's body, Trabert's objectively less serious role in the offending compared to that of Lindholm, and Trabert's mental disorder.

37 The same matters were relied upon in relation to the proposed ground that the sentence imposed on Trabert was manifestly excessive, and in that context counsel for Trabert also relied upon his personal circumstances, the fact his sentence was being served in protection, and the absence of relevant prior convictions.

38 On behalf of the Crown, it was submitted that this murder was one approaching the worst category. It was submitted that this had been a violent, callous killing of a person in order to prevent him exercising his legal rights at a court hearing the following day. Insofar as statistics had been relied upon by the applicants, it was submitted that this murder was in a cohort of cases which would include life sentences that were not reflected in the statistics. In relation to the roles of the offenders, it was submitted that, whilst they were all different, a meaningful distinction in culpability could not be made between the instigator and the two perpetrators. Particular reliance was placed upon the fact that the motivation was to prevent the exercise of legal rights, and it was submitted that this murder was relevantly analogous to a contract killing.

39 On behalf of the Crown, it was submitted that the sentence imposed upon Ryan was within range, and that a life sentence could have been imposed upon him. It was submitted that the sentences imposed upon Lindholm and Trabert were also within range. In relation to parity, it was submitted that Trabert properly received a lower sentence than Ryan, given the assistance which he had rendered, his mental condition and his absence of relevant prior convictions. It was submitted that Lindholm's sentence was lower than those of Trabert and Ryan because of her guilty plea. Emphasis was placed upon the importance of there being a demonstrable discount for a plea of guilty even where the guilty plea did not evidence remorse. It was submitted that in the context of murder sentences the non-parole periods ordered were unremarkable.

40 Lindholm was charged with offences as a result of the incident in April 2012 when she broke into Amey's apartment. On the hearing of the application for leave to appeal counsel informed the Court that those offences had been dealt with by the imposition of a community correction order of 12 months' duration at the Frankston Magistrates' Court on 18 July 2013. On the plea, counsel for Lindholm had informed the sentencing judge that an intervention order had been made against Lindholm which she had breached, specific reference being made to an incident on the Bittern property in February 2013. Lindholm was charged with offences committed in that regard which were pending at the time of the plea. On the application for leave to appeal the Court was informed that Lindholm had been sentenced to a term of three months' imprisonment, to be served concurrently with the sentence imposed for the murder, for three offences of breach of a family violence intervention order and one offence of assault at the Melbourne Magistrates' Court on 15 January 2016.

41 The proposed ground of manifest excess is a stringent ground which is difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong. The sentence in question must be shown to be wholly outside the range of sentencing options available.[15]

42 As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be 'marked' or 'manifest'.[16] No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[17] Where the co-offender's sentence is itself inappropriately low, parity cannot be relied upon so as to reduce a sentence under appeal to a point where it too is manifestly inadequate.[18]

43 This was a truly terrible crime. Lindholm sought to bring about Amey's murder for two years. She tried to persuade others to kill him for her, and eventually she persuaded Trabert to do it. She did so in response to a property dispute, and because Amey took legal proceedings to resolve it. Trabert and Ryan callously, ruthlessly and violently carried out her wishes.

44 Lindholm relies upon a number of sentences imposed in other cases to support the proposition that the sentence imposed on her is unmistakably outside the range.

45 This crime has a characteristic which was not present in any of the sentences relied upon by Lindholm. That is that Lindholm's motivation to have Amey killed was a response to his recourse to legal proceedings in order to resolve the property dispute between them. In that respect, this case has some relevant similarity to two cases relied upon by the Crown where a murder was committed in response to pending court proceedings, being R v Parsons[19] and R v DJH[20]. In R v Parsons a term of life imprisonment was imposed after a trial. In R v DJH this Court indicated that a sentence of 24 years' imprisonment in relation to an offender who had pleaded guilty was not manifestly excessive and where two of the three members of the Court indicated that had they been the sentencing judge a term of life imprisonment would have been imposed.

46 It is difficult to overstate Lindholm's moral culpability for this crime. She pleaded guilty but the judge found that she was not remorseful. In view of what this Court was told on the hearing of the application for leave to appeal, the judge's treatment of Lindholm's prior criminal history was a markedly favourable one to her. She persisted in seeking to procure Amey's murder after being placed on a community correction order for offences against him, and, it seems, while further charges for assault and breaches of an intervention order were pending.

47 Lindholm was entitled to recognition of the utilitarian value of her guilty plea and the sentence imposed certainly does that. In our view, the sentence imposed upon her was a merciful one in the circumstances. We do not consider that her proposed ground of appeal is reasonably arguable and we would not grant her leave to appeal.

48 Trabert's moral culpability is perhaps less than that of Lindholm, but he could not rely upon the mitigating effect of the utilitarian value of a guilty plea. It is true that he assisted police, and he was entitled to have that recognised, but the sentencing judge found that he was not motivated in the assistance he gave by remorse for what he had done. He had no relevant prior convictions and he was also entitled to have that taken into account in mitigation. Likewise, his mental condition, recognised by the sentencing judge, had to be taken into account. He was acting at Lindholm's request but he knew the reason she wanted him killed. He was the one who, with Ryan, actually carried out this violent, callous and ruthless murder. We do not consider that the sentence imposed upon him is arguably manifestly excessive. We would refuse him leave to appeal on that proposed ground.

49 Ryan's involvement in the planning of the murder was less than the other two. Unlike Lindholm, he could not rely on the utilitarian value of a guilty plea. He and Trabert carried out the violent murder. Unlike Trabert, he had relevant prior convictions and was to be sentenced as a serious violent offender. In the circumstances, in our view it is not reasonably arguable that the sentence imposed on him is manifestly excessive. We would refuse him leave to appeal on that ground.

50 Insofar as Ryan seeks to rely upon disparity with the sentence imposed on Trabert, we do not consider the proposed ground to have any merit. The difference in their criminal history alone means that it was clearly open to the sentencing judge to differentiate between them in the way in which he did.

51 Trabert and Ryan's proposed reliance upon disparity with the sentence imposed on Lindholm does have more substance. Lindholm might well be seen as having greater moral culpability than them. On the other hand, Lindholm pleaded guilty and they did not, and they were the ones who actually carried out the killing.

52 In all the circumstances, whilst we would consider the parity grounds insofar as they concern Lindholm to be arguable, we would nevertheless dismiss Ryan and Trabert's respective appeals on that ground. This is because, in our view, it cannot be said that it was not open to the sentencing judge to differentiate between them in the way in which he did given the fact that Lindholm had pleaded guilty, and because such disparity as may be seen to exist between the sentences imposed on Trabert and Ryan on the one hand and the sentence imposed on Lindholm on the other is insufficiently marked or manifest to warrant appellate intervention.

53 Leave to appeal will be refused in relation to all three applicants on the respective proposed manifest excess grounds. On the parity grounds sought to be relied upon by Trabert and Ryan, we grant leave but dismiss the appeals.

[1] R v Lindholm [2015] VSC 739 [4].

[7] A disproportionately higher sentence was not sought and the sentencing judge indicated that he did not propose to impose one: Ibid [64].

[14] The cases cited were Wu v The Queen [2014] VSCA 79; Giles v The Queen [2014] VSCA 183; R v Cavkic (No 2); R v Athanasi (No 2) (2009) 28 VR 341; Armour v The Queen [2012] VSCA 188; Meade v The Queen [2015] VSCA 171; R v Kerr [2015] VSC 249; Barbour v The Queen [2013] VSCA 94; R v Terdputham [2015] VSC 740; R v Spence [2015] VSC 321; R v Seckold [2014] VSC 441; R v Henderson [2015] VSC 653; R v Constantinou [2013] VSC 474. In response the prosecution cited R v Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495; R v Parsons [2000] VSCA 15; (2000) 1 VR 161; R v DJH [1998] VSCA 108.

[15] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384; Ayol v The Queen [2014] VSCA 151 [30].

[16] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5.

[17] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5; McCloskey-Sharp v The Queen [2015] VSCA 87 [17].

[18] Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140, 147-8; Taleb v The Queen [2014] VSCA 96; (2014) 42 VR 666, 677.

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