The Queen v A C [2015] VSC 323

2 On 5 September 2014, after hearing a plea in mitigation, I adjourned the matter for further plea and sentence pending receipt of a pre-sentence report on AC's suitability for a youth supervision order or probation.

3 On 10 November 2014, having received the appropriate report, I released AC, without conviction, on a probation order for 12 months, with all of the standard conditions that attach to such an order plus a special condition that he undergo psychological counselling as directed by the Secretary. I gave ex tempore reasons for imposing that sentence.

4 In the particular circumstances of the case, which included AC's tender age and that two of his co-accused had outstanding trials, the parties accepted that, if I were to publish detailed reasons for sentence, that should not occur at least until after the conclusion of the proposed trials of the co-accused. Further, AC and those closely connected with him should have their names and any identifying details anonymized. The proceedings against the co-accused have now concluded. Hence the publication of these reasons today but as if at the time of sentence.

5 The following is a summary of the agreed facts on the plea:

6 In the early part of January 2013, AC, who was aged 14 at the time, was at Flinders Street Station with friends, when he was approached by Harvey Spence, a man he knew and to whom he was related. Mr Spence asked AC why he was at the station and then asked if he wanted to come with him. AC agreed to accompany Mr Spence. Together, they met Mr Spence's associate, WR.

7 It was arranged between them that WR would drive AC to a property he owned at Johnsonville (near Bairnsdale). The three departed from the station, with WR driving a Ford 250 utility carrying AC as a passenger and Mr Spence driving a gold Holden Calais that belonged to WR.

8 On the morning of 6 January 2013, Mr Spence, together with Todi Muja and Peter Mitchell, drove to Johnsonville in WR's Holden Calais. In the car with them was Nhan Ngoc ("Kevin") Doan. At some stage during the journey, Mr Doan was placed in the boot of the car.

9 Upon arriving at WR's property, Mr Doan was dragged from the boot of the vehicle and into a work shed. His hands were bound and duct tape was placed across his mouth. Mr Doan was bound, gagged, suffocated and strangled. After he was killed, Mr Doan's body was placed into a trailer and set on fire. The fire caused a lot of smoke and, as result, was put out by Mr Mitchell. Mr Spence then had a conversation with WR and left the property, taking a large sum of money with him to purchase drugs. Mr Mitchell and Mr Muja left sometime thereafter in WR's white utility.

AC becomes an accessory after the fact to the murder of Mr Doan

10 Following the departure of Messrs Spence, Mitchell and Muja, WR and AC went into the shed and found the body of the deceased lying partially burnt in the trailer. They moved the body from the trailer, out to the front of the shed, where they laid it on the grass. They placed wood on the grass and used petrol light it on fire. Once the fire was well established, WR and AC lifted the body onto the fire, which burnt until there was nothing left but ashes. The shed, the trailer and the area that had been burnt in the grass were all then cleaned up.

11 Following the clean-up, WR told AC that he had to return to his family. He gave him money for a train. AC caught country and suburban trains back to a Melbourne suburb and then walked home from the train station.

12 The offence of assisting an offender, by being an accessory after the fact to murder, is serious. It carries a maximum penalty of 20 years' imprisonment.[1]

13 In this case, the offence involved AC's participation in the destruction of a body for the purpose of impeding the apprehension, prosecution, conviction or punishment of Mr Spence, knowing or believing that Mr Spence had murdered Mr Doan.

14 Ordinarily, that would be a serious example of a serious crime, one warranting a gaol sentence for an adult offender. In this case, however, there are factors which place AC's offence in a different light.

15 Mr Moglia, who appeared for AC, explained that, at the relevant time, his client had been living not with his own family but in the care of the Department of Human Services ("DHS"). Mr Spence, who was related to and knew AC and his family, had come across him by chance at the train station in the city. He said he would allow AC to live with him and endeavour to see him returned to his family. In the interim, Mr Spence had AC taken to WR's place in the country. From AC's viewpoint, it was just happenstance that he was there when, without his foreknowledge or involvement, the horrible events that resulted in Mr Doan's death occurred.

16 The next day, as a boy who had just turned 14 and who was being assisted, he thought, by Mr Spence, AC was called upon by another adult associated with Mr Spence and at whose place he was staying, hundreds of kilometres from home, to assist in the gruesome task of burning a body. He was frightened of what might happen to him or his family if he did not assist.

17 While the offence is objectively serious, AC's moral culpability for his role in it was, in my view, comparatively very low. He was just a child placed in a very difficult situation by adults and without the moral guidance that should have been afforded him. He should have been shielded from such horror, not thrown into the midst of it in a grisly attempt to cover up the evil done by another.

18 In addition to the peculiar circumstances surrounding his part in the offence, there are several important mitigating factors related to AC and his subsequent behaviour.

19 First, when spoken to by police, AC made full admissions and also detailed written statements about the circumstances.

20 Secondly, he pleaded guilty at the earliest practical stage.

21 Thirdly, he gave a sworn undertaking before me to assist the authorities in the prosecution of others in this matter, if called upon to do so.

22 Mr Rochford QC, who appeared for the Director, accepted that the offer of assistance was material, that AC had done all he could in that regard and that the undertaking should carry significant weight in sentencing. I agree.

23 Fourthly, I accept that AC regrets his behaviour and is as remorseful as a 15-year-old reasonably can be.

24 He told Dr Walton, a consultant psychiatrist, whose report was tendered on the plea without objection, that he "regret[s] every minute of it"; that he wishes that he, not the deceased, had been killed; and that the deceased visits him in his dreams and asks him troubling questions. Additionally, Dr Walton opined that, "[w]hile [AC] is an emotionally immature adolescent, he does express regret about his involvement and what seems to be genuine victim empathy". I accept that evidence.

25 When regard is had also to his admissions, early plea of guilty, undertaking to assist the authorities and previous good character, the conclusion that AC is genuinely remorseful is all but inevitable.

26 Fifthly, AC has no prior convictions or findings of guilt.

27 Sixthly, AC was just 14 at the time of the offence and is still only 15 now. As I said earlier, he was, and is, just a boy.

28 Seventhly, I am satisfied that, despite the seriousness of the offence, AC has excellent prospects of rehabilitation.

29 He has been receiving therapeutic treatment with an organization that deals with children the subject of child protection applications and who have suffered trauma, neglect and disrupted attachment. He has been diagnosed with a complex post-traumatic stress disorder following the offence and is receiving clinical treatment for that condition.

30 Dr Walton opined that, while AC is "ill-educated", he is "fundamentally of normal intelligence". Dr Walton is also of the view that AC has benefited from the psychological counselling he has been receiving, as well as the more recent introduction of antidepressant medication.

31 Dr Walton also notes that AC is progressing well with alternative education and is hopeful of becoming a soldier one day, like several in his extended family.

32 While he has had a history of using cannabis and drinking alcohol, AC has ceased, or at least largely ceased, such behaviour, since his mother's request that he do so, from November 2013.

33 Since March 2014, AC has been returned to his mother's care.[2]

34 Thus, in view of the foregoing, as well as the unusual circumstances in which the offence occurred and his admissions, plea of guilty, undertaking to assist the authorities, remorse, previous good character and youth, I am satisfied that AC has excellent prospects of rehabilitation. I do not think there is any realistic prospect that he would offend in a similar manner again.

35 The sentencing of children is in some respects quite different from the sentencing of adults. For example, general deterrence is not a relevant sentencing purpose in sentencing a child whereas rehabilitation is usually the principal focus.

36 Further, s 362(1) of the Children, Youth and Families Act 2005 (Vic) sets out some specific considerations to which courts must have regard in sentencing a child:

(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to -

(a) the need to strengthen and preserve the relationship between the child and the child's family; and

(b) the desirability of allowing the child to live at home; and

(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(d) the need to minimise the stigma to the child resulting from a court determination; and

(e) the suitability of the sentence to the child; and

(f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

(g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.

37 Paragraphs (a) to (f) all contain considerations relevant in the present case.

38 I do not regard protection of the community (paragraph (g)) as a relevant consideration in the present case, except in so far as fostering and maximizing AC's rehabilitation is the best way of achieving that purpose.

39 A non-custodial disposition is the most appropriate disposition to meet the considerations listed in paragraphs (a), (b), (c) and (e).

40 While it is appropriate to ensure that AC is aware that he must bear a responsibility for any action by him against the law, the fact that he will forever wear the stain of a finding of guilt for such a serious offence, albeit that his moral culpability for the offence is very low, is more than enough to meet the requirements of paragraph (f).

41 The very fact that he will wear the stigma of a finding of guilt for an objectively serious offence (see paragraph (d)), but in circumstances where his moral culpability was low, is yet another reason why no conviction should be recorded.

42 AC was assessed by the authors of the pre-sentence report as suitable for a probation order. On such an order, he would be required to participate in supervision appointments with Youth Justice each week for the duration of the order.

43 The report also recommends that there be a special condition that AC participate in psychological counselling as directed in an attempt to address the trauma related to his offending. That, in my view, is a sensible recommendation.

44 Mr Moglia submitted, and Mr Rochford agreed, that a probation order, without the recording of a conviction, with a special condition as to psychological counselling, was open.

45 In my view, despite the objective seriousness of the offence, the circumstances of this case demand such a disposition. In particular, AC's low moral culpability, admissions, plea of guilty, undertaking to assist the authorities,[3] remorse, previous good character, youth and excellent prospects of rehabilitation, in combination, compel that outcome.

46 AC consented to the making of such an order.[4]

47 Thus my orders that, on the offence of assisting an offender by being an accessory after the fact to murder:

1. pursuant to s 380 of the Children, Youth and Families Act 2005 (Vic) ("the CYF Act"), without conviction, AC is placed on probation for a period of 12 months;
2. AC must comply with all of the conditions specified in s 381(1) of the CYF Act; and

1. pursuant to s 381(2) and (4)(f) of the CYF Act, there is a special condition that AC is to undergo psychological counselling as directed by the Secretary.

[1] See ss 325(1) and (4)(a) of the Crimes Act 1958 (Vic).

[2] The circumstances in which AC came to be removed from and then returned to his mother's care were explained to me in part by counsel and in the pre-sentence report prepared on behalf of the DHS. In my view, it would be inappropriate to detail those circumstances in these published reasons, even if they were described in such a way as to comply with the strictures of s 534 of the Children, Youth and Families Act 2005 (Vic).

[3] In accordance with s 362(5) of the Children, Youth and Families Act 2005 (Vic), I declare that the sentence is less severe than I otherwise would have imposed because of AC's undertaking.

[4] Section 380(2) of the Children, Youth and Families Act 2005 (Vic) provides that the Court may only make a probation order if the child has consented to the order being made.