The Queen v Boroviak [2018] VSC 793

2 On 18 January 2015, you killed Ms Martell by strangling or suffocating her at a property in Rosalie Avenue, Dromana on the Mornington Peninsula.

3 The remains of her body were located in thick scrub, approximately three to four metres off a walking track near Diamond Bay on 13 January 2017.

4 At the time of her death, Ms Martell was 43 years old. She had two children, a son born in 1991 and a daughter in 2002. In 2012, following a broken relationship, Ms Martell lost custody of her children and began moving from house to house on the Mornington Peninsula. During this time, she developed addictions to methylamphetamine and cannabis. In early 2015, Ms Martell moved in with a friend at Rosalie Avenue, where she slept on a mattress on the floor of a rear bedroom. She was known as a friendly person, who lived a nomadic and chaotic lifestyle.

5 You first moved into the house at Rosalie Avenue in late 2014. Across 2015, you were only staying there periodically.

6 On 18 January 2015, you and another occupant of the Rosalie Avenue house went to Rye, where you obtained and used a quantity of methamphetamine. You then returned to the house, at which point you were affected by the drug. When you arrived, Ms Martell was sitting on a lounge, waiting for you and the other person to supply her with cannabis.

7 Later that evening, Ms Martell was in her bedroom, sitting on a mattress on the floor. Another occupant of the house, Renee Desmond, went into her bedroom, shut the door and sat down, and they both smoked cannabis. While they sat there, the door flew open and you stood in the doorway. You asked the two women what they were doing, then came in and crouched in front of Ms Martell.

8 At this point, an argument began. You jumped on Ms Martell and knocked her onto her back. You were much larger and more powerful than her. Before Ms Martell could say anything, you were on top of her, with your hands on her face and around her neck. You applied significant pressure and killed Ms Martell, either by strangling or suffocating her. These acts constitute the offence of manslaughter.

9 After a time, you let go of Ms Martell. While you were still on top of her, you shook her by the shoulders and said words to the effect, 'She's gone', or, 'She's dead'. She did not move or respond. Ms Desmond was still seated on the floor, in shock at having witnessed the death of Ms Martell. You said to her, 'If you ever breath a word of this, I will fucking kill you'. You then got off Ms Martell and walked out of the room.

10 Ms Desmond followed you into the lounge room, where you said to Nicholas Baggott, who was also at the house, 'I've got something to tell you, I've killed Jo'. You told him you had strangled Ms Martell and you needed help to move the body. He said he did not want anything to do with it, but you threatened him and Ms Desmond, saying you had lots of friends capable of killing them. When you said this, you had a knife in your hand. You further threatened that you would have Mr Baggott killed or have his neck broken if he told police what happened.

11 You again asked for help to move the body, and Mr Baggott called Evandro Marchetto. Mr Baggott asked him if he would come to the crime scene and he arrived shortly after. You then confessed to Mr Marchetto that you had killed Ms Martell by strangling her, demonstrating an action with your hands. Mr Marchetto said he did not want anything to do with it and left straight away.

12 After he left, you dragged Ms Martell's body into the bathroom and scrubbed it down with bleach. Ms Desmond again refused to help you. You put two hoodie jumpers on Ms Martell, pulling the drawstrings tight on the external jumper to conceal her face, and wrapped her in a red bedsheet.

13 Around 10.00pm that night, you contacted your son, Cameron Bandera, and told him you needed his help with something important. He was reluctant to come late at night, but eventually agreed to do so. You used Ms Desmond's car to drive to Mr Bandera's house in Rosebud, picked him up and returned to Rosalie Avenue. You told Mr Bandera that, 'shit had gone down', and that it was serious.

14 After you arrived at Rosalie Avenue you went to the rear of the property and returned to the car shortly after, dragging Ms Martell's body wrapped in the sheet. It had knots tied just above the ankles and the neck area to contain her body. You put Ms Martell's body in the boot of the car, and Mr Bandera then drove under your direction to Diamond Bay. During the trip, you told Mr Bandera that someone had pulled a knife on you and you had acted in self-defence. That assertion was untrue.

15 When you reached Diamond Bay, you followed the road to a carpark that accessed the beach. You and Mr Bandera lifted Ms Martell's body out of the boot and, together, carried her up a dirt walking track. After a short distance, Mr Bandera put his end of the body down and told you he could not do it. He then left you with the body and returned to the vehicle.

16 You continued up the track, carrying Ms Martell's body for a distance of about 150 metres. You dumped it in scrub approximately three to four metres off a dirt track, removed the sheet from Ms Martell and returned to the vehicle. You then dropped Mr Bandera home and returned to Rosalie Avenue in the car.

17 While these events were occurring, Mr Baggott had told another person, David Bambridge, what had happened and that Ms Martell was dead. After he made some inquiries, Mr Bambridge became sufficiently concerned about Ms Martell that he went to the Rosebud Police Station and reported what he had been told. The Homicide Squad were informed.

18 Ms Martell's body was not located at that time. While you went about your life, a protracted police investigation took place. This led to the arrest of your son Mr Bandera in early 2017. He soon after disclosed his involvement in the events concerning Ms Martell's death, and told police the approximate location of her body.

19 Following an extensive ground search, on 13 January 2017, Ms Martell's remains were located in the area indicated by Mr Bandera. This was almost two years after her death.

20 You were arrested shortly after and interviewed by police in mid-February 2017. At that time, you referred to a statement you made to the police in late 2015 alleging an assault and sexual offence had been committed against you. You otherwise made no comment about the events concerning Ms Martell.

21 The remains found at Diamond Bay were identified as Ms Martell's by use of DNA comparison. Due to the poor condition of her body, the cause of death was unable to be determined. Her body was found to be wearing black and white street style shoes and denim jean shorts, consistent with the description provided by Ms Desmond.

22 During the hearing, I received victim impact statements from friends of Ms Martell, Tania Dandridge and Cynthia Ellul; her sister, Sharon Bennett; her brother-in-law, Simon Bennett; her nephew and niece, Brendan Bennett and Zoe Bennett; and her son, Gage Baker.

23 Ms Dandrige, a very close friend who knew Ms Martell from early childhood, described her as a 'light in the room', with a heart of gold. She said Ms Martell was there for her during the best and worst times, and that she was a beautiful free spirit. She described the traumatic effect of learning Ms Martell had disappeared, and spoke of her efforts to contact and search for her. She described her grief for the loss of Ms Martell, questioning why this had happened to her.

24 Ms Ellul described Ms Martell as a very close family friend who she looked to as a sister. She spoke of the good times they had together with her late husband and children. She spoke of missing Ms Martell's infectious laugh and unconditional friendship, and said she had to move away from the Mornington Peninsula because of upsetting thoughts of her friend's loss. She described feeling a roller coaster of emotions since Ms Martell's death, and that she felt numb and mentally and emotionally scarred.

25 Sharon Bennett described how the events of her sister's death have deeply impacted her life. She described feeling tormented and consumed by thoughts of her sister's final moments, and the unbearable pain of her loss. She spoke of her enduring grief, depression and anxiety, and inability to escape what had happened. She said Ms Martell had a difficult life but, before her death, had the opportunity to live more happily and peacefully, and was looking forward to spending more time with her children. Ms Bennett described the act of violence as having torn the fabric of their tightknit family, severely impacting positive relationships.

26 Simon Bennett described how his life has been tested and tortured by what happened to Ms Martell. He described every day as a stressful battle, and said he has strong memories of her body lying in bushland on the coast. He said the trauma of reliving the heinous crime is a constant pain, and expressed how appalled he is that his parents have to endure it as well. He described how the impact of her death affects his ability to talk to family and friends, the loss he feels at having incomplete family celebrations, and that writing his victim impact statement was torture.

27 Brendan Bennett described how he regrets his last meeting with Ms Martell, as they parted in a rush. He said the loss of his aunt has affected his work ethic, and that emotions run high at home. He described the emotional impact of going to the scene where her body was located and revisiting the events in his own mind. He said he broke down when bottled up emotions spilled out. He described Ms Martell as a kind and loving person, who was taken away from his family too early.

28 Zoe Bennett said the death of her aunt put an enormous emotional strain on her and her family. She described her mother, Joanne's sister, as deeply affected by the loss, and the family's inability to grieve whilst court proceedings dragged on. She described experiencing stress and anxiety, and taking out her anger and grief upon herself. She described the strain it put on her university studies, as she is unable to concentrate and is tormented by the brutality of what happened. She described Ms Martell as a kind and gentle person, and said she had never seen her be aggressive or cruel to anyone.

29 In his victim impact statement, Gage Baker said he regrets not parting with his mother on the best of terms, and not communicating with her as much as he should have. He describes struggling to come to terms with the death of his mother and his inability to sleep most nights, as a complete sadness comes over him, from knowing he will never see or speak to her again. He said he would most miss her smile, and that she gave him a tight hug and kiss on the cheek when he saw her. He described how his mother meant the world to him, and he would especially miss her not being able to be at his wedding.

30 These statements all speak of tremendous pain and loss. No sentence I impose will be able to undo your actions or the widespread suffering you have caused.

31 You are 44 years old and were 40 when you killed Ms Martell. Your personal history has been described as traumatic, intensely difficult and troubled. You experienced significant physical and sexual abuse from a young age, and witnessed physical violence from your mother's male partners towards her. Your upbringing lacked stability; you and your mother moved frequently, and you attended numerous different schools. You have attempted suicide a number of times.

32 You left home when you were 14 years old and were at times homeless. By your mid-teens, you had started using cannabis. Despite these difficulties, you were able to complete Year 12.

33 In Year 12, you had a relationship and became pregnant with your first son. Two years later you gave birth to your second son, Cameron. That relationship broke down and your two sons lived with their father. You struggled with being separated from your children. You have two other children from a subsequent relationship with whom you do not currently have any contact. Your daughter is 17 years old and lives with your mother, and your youngest son is 13 and lives with his father.

34 You have struggled with drug abuse and addiction from a young age. After using cannabis, you became addicted to heroin from age 23 to 27. From age 27, you have used amphetamine and methamphetamine. At the time you killed Ms Martell, you were using methamphetamine and associating with drug users on a regular basis. You have remained drug-free since you went into custody in October 2016.

35 Around the time you killed Ms Martell, you were working as a kitchen hand. You obtained that job through the 'release for work' program, which commenced while you were in custody in 2014. In June 2015, while on a Community Corrections Order (CCO), you relapsed into the abuse of cannabis and methamphetamine. Over this period, you became depressed and self-medicated with drugs.

36 In late August 2015, you crashed a stolen car, leaving the scene of the accident. You attended hospital sometime after and were diagnosed with post-concussion syndrome. You described loss of memory, dizzy spells and a speech impairment.

37 Your criminal history was described as unenviable, and involves some examples of serious offending, committed when you were addicted to heroin. The most significant offending were armed robberies in 2003. Despite a number of instances of unlawful assaults, and summary offences for resisting and assaulting police, it was submitted on your behalf that you had no other charges involving serious violence. You have no previous convictions for matters involving causing of injury, and much of your past offending has been dealt with as summary offences.

38 In December 2015, you were the victim of a serious assault by two men who used a baseball bat to beat you. You allege you were also raped on that occasion, and that you lost consciousness and woke up wrapped in carpet in the back of a utility vehicle, with your hands tied together with cable ties. You say your attackers told you that they were going to throw you off a cliff and you thought you would be killed. Your attackers eventually dumped you on the roadside. A passer-by assisted and police and an ambulance were called. You were seriously injured by the attack, and were admitted to hospital with a fractured femur, bruising, and a laceration to your left ear. You required surgery as a result of these injuries and there is no doubt you were seriously assaulted.

39 On 20 December 2016, approximately one year after the alleged assaults, you made a lengthy police statement about the events, naming David Bambridge and Mark Shannahan as the men who assaulted you.

40 At the time of your plea in this matter, the assault was subject to an unresolved trial at the County Court, in which you were to give evidence. Mr Shannahan is to be tried in those proceedings, however Mr Bambridge has apparently disappeared. In the hearing before me, there was no dispute that you were seriously assaulted by both men, however, the prosecution are not pursuing the allegation of rape.

41 It was put on your behalf that the physical assaults and alleged rape were inflicted as 'payback' for killing Ms Martell, Mr Bambridge's former partner. It was submitted the assault occurred less than 12 months after you killed Ms Martell, and was committed due to Mr Bambridge's belief that you killed her.

42 It was argued on your behalf that, should I be satisfied these events occurred as a form of payback, they would constitute a significant mitigating factor in sentencing for your current offending. It was acknowledged that you must establish, on the balance of probabilities, that there was a direct connection between your killing of Ms Martell and the assault perpetrated against you.

43 Before me, you gave evidence about these matters, and swore that the contents of the statement you made to police on 20 December 2016 in respect of the assault were true and correct. In the statement, you reported that Mr Bambridge had said, 'You little cunt, I've been after you for a long time, I'm sick of you and the shit around town, why didn't you just leave, just fuck off'. However, in cross-examination, you noted the version of events you provided to police was not entirely truthful. You agreed there was nothing in the statement about Mr Bambridge accusing you of killing Ms Martell. You also conceded that your statement did not articulate a belief that the motive was payback.

44 You explained the reason for this was that you did not want to be implicated in Ms Martell's death. You also said you lied to police because you were terrified and fearful of the men who did these things to you.

45 In your evidence before me, you said that, at the time of the assault, Mr Bambridge said to you, 'You're a dirty dog. You're a sack of shit. You deserve everything that you get'; and, 'Say hello to Joanne Martell when you get to the other side'. You said that you understood Mr Bambridge to be talking about your involvement in the death of Ms Martell.

46 In cross-examination, it was put to you that these statements do not amount to a clear indication that the motive for the attack was your offending against Ms Martell. You responded that Mr Bambridge's remarks implies that he was aware that you killed Ms Martell. You said he 'never named anyone else. He named Jo Martell and it implies that I knew of that event'.

47 I am of the opinion that the evidence put before me does not sufficiently establish that the assault on you was committed as payback for your involvement in the death of Ms Martell. Not only was there no reference to this motive in your lengthy police statement, but your evidence in this court did not establish a direct connection between the assault and your killing of Ms Martell. At best, your evidence is that you understood that he said, by implication, that his assault upon you was payback. I further note the prosecution indicated that evidence as to this suggested motive would not be led in the trial in respect of the assault at the County Court.

48 In the absence of direct evidence on this issue, I am not prepared to draw the inference that the motive for the assault on you was payback.

49 Nonetheless, I am satisfied you were subjected to a serious assault and received significant injuries at the hands of Mr Shannahan and Mr Bambridge. While I do not take the assault into account as payback, I do consider it as part of your personal circumstances. I take into account that the violence perpetrated against you is likely to have been traumatic, and may well have aggravated the post-traumatic stress disorder (PTSD) that you suffer from.

50 Following this assault, you committed various offences. For some of this offending you were granted a series of CCOs, imposed in May 2015, June 2015 and February 2016. You also undertook physical rehabilitation for your broken leg and applied for a disability support pension.

51 In October 2016, you were sentenced to a term of imprisonment in the County Court for breaching an earlier CCO, and for further offending. In February 2017, you were charged with the murder of Ms Martell while serving that sentence, which was to expire in early March 2017. You have remained in custody on remand since the expiration of that sentence.

52 You have spent your time in custody productively. You have a role in prisoner liaison, for which you represent others in your unit. You are engaged with a weekly book club, and see a counsellor on a fortnightly basis to assist with your health issues. You see a psychiatrist monthly and are prescribed an anti-depressant, and you take methadone to manage the pain for the injuries from the 2015 assault. I was told you are not interested in returning to using drugs upon your eventual release from custody, and that you have a desire to live a quieter and more stable life. These matters are relevant to your prospects of rehabilitation.

53 I received a report from occupational and forensic psychiatrist, Dr Leon Turnbull, dated 7 September 2018. Dr Turnbull examined previous psychological reports of David Ball and Patrick Newton, and a previous psychiatric report of Dr Danny Sullivan dated August 2013. Dr Turnbull expressed the opinion that, in contrast to a lifetime of dysfunction, you were functioning reasonably well in the months leading up to your offending in January 2015. However, you were injecting methamphetamine on a daily basis, including on the day of your offending.

54 According to Dr Turnbull, you reported that you had only seen Ms Martell on one occasion prior to the date of her death and had had a civil discussion with her, in which you both noted having been previously beaten by men. On the day of your offending, after using methamphetamine, you found some drugs were missing from your bag. You concluded Ms Martell was responsible and determined to confront her. You told Dr Turnbull that you struck Ms Martell across the face, that it was Ms Martell who lost control, and that you responded by attempting to restrain her by grabbing her to shut her up. You said she then collapsed and you unsuccessfully attempted to wake her by shaking her. This contradicts the evidence provided by Ms Desmond, who witnessed the events, and whose version I accept.

55 Dr Turnbull describes that you presented to him as 'quite composed' and 'someone who responds well to support and treatment, albeit with ongoing ice use'. He noted you are vulnerable to finding yourself in unsavoury situations. He further noted, consistent with previous reports, that you have a lifetime tendency towards intense emotions, including rage, difficulty initiating and concluding relationships in a healthy way, and a highly variable sense of self that is dependent on your surroundings.

56 Dr Turnbull opined that you have an established diagnosis of borderline personality disorder, but no obvious intellectual deficits. He found you were not suicidal, though you suffer from PTSD with a propensity to emotionality, which preceded your offending. He found your subsequent alleged rape and bashing forms the main part of your ongoing PTSD. He describes your personality as inclining towards intense emotional and behavioural reactions to events. He notes the main factor in your offending was your intoxication with methamphetamine, which tended to disinhibit you and lessen your ability to think rationally, logically and sensibly. He notes that, on your account of events, you responded to your victim's rage by attempting to restrain and silence her, to resolve what you were confronted with, without an intention to harm her.

57 He described your need to permanently cease use of all illicit drugs as significant, and noted you are intellectually capable of rehabilitation.

58 Finally, Dr Turnbull indicated that because of the issues you have, you will find the serving of a custodial sentence 'moderately more difficult', although you are not likely to deteriorate mentally in the prison setting.

59 Your offending was inherently serious as you caused the death of another human being. There are factors which further aggravate its seriousness, including that:

• it occurred at close range, and was therefore very personal and physical, and must have been very traumatic for your victim;
• you subsequently washed Ms Martell's body with bleach and dumped it in bushland to conceal your offending, with the result that her family and friends did not know what had become of her for a substantial period; and
• you threatened witnesses and involved your son to help you. He was charged by police as a result, and appeared before this Court for the offence of assisting an offender. You should be ashamed at involving him in this way.

• your offending was not premeditated; it is more than likely it occurred as a spontaneous burst of anger, which you were unable to control;
• you pleaded guilty, which saved some trauma for the victim's family, and time and expense for the Court and community. This is of utilitarian value and facilitates the administration of justice. However, I note that your plea of guilty was not at the earliest opportunity given that it was entered at the time of pre-trial proceedings, at which your son had been called to give evidence for the prosecution;
• you are a person who has had a very difficult life, that your counsel described as 'impoverished personal circumstances and history'; and
• you have expressed remorse and appear to be developing insight into your offending.

61 In my opinion, your offending can be considered a mid-range example of manslaughter. I note that this assessment does not seek to minimise the significance of Ms Martell's death, and the immense suffering your actions have caused. Instead, I seek to explain this particular offending in the context of many other cases of manslaughter.

62 In reaching this conclusion, I have had regard to the factors outlined above. Your offending was spontaneous and the act of strangling or suffocating Ms Martell was brief. However, your actions that followed, namely the treatment and disposal of her body, enlisting the help of your son and threatening others, are all factors that elevate the gravity of your offending.

63 I acknowledge that you suffer from a long-standing borderline personality disorder and PTSD, which preceded your offending.

64 In assessing whether your condition was likely to have affected your mental functioning at the time of your offending, Dr Turnbull opined the main factor was your use of ice. As such, no argument was advanced that the principles articulated in R v Verdins applied to you.[2] While your counsel indicated your time in custody might be slightly more difficult, the point was not pressed.

65 I am unable to conclude that your conditions had any significant causal connection to your offending. However, I do accept that your conditions may lessen your moral culpability to a moderate extent, and I will make some allowance for that. I am also of the opinion that, to a moderate degree, you may find serving a custodial sentence somewhat more difficult than if you did not suffer these conditions.

66 Ms Martell was regarded as kind, generous, gentle and loving person to those that knew and loved her. Your offending has had serious and significant impacts on her family and friends.

67 While the offence of manslaughter is one of the more serious crimes known to the law, it can be committed in many different circumstances. Because of the degree of variation in this type of offending, it is difficult to identify past cases that have involved offending and offenders with closely comparable characteristics. As such, it is well understood that sentences for this type of offending can vary widely.

68 Your offending involved the killing of another human being. By definition, this is a serious offence, and general deterrence must be a primary sentencing consideration. The serious nature of your offending, and your degree of culpability, requires the court to strongly denounce your conduct. Your offending was physically violent and closely personal, and a very traumatic way for your victim to die.

69 Specific deterrence and the protection of the community are factors that must play a role in determining your appropriate sentence. Due to your prior convictions and your addiction to drugs, which appears connected to violent outbursts, the sentence I impose must acknowledge that you need to be personally deterred from committing future offences. Accordingly, I take this and the need to protect the community into account in my overall assessment.

70 I regard your prospects of rehabilitation as open. You have troubling prior convictions, including instances of violence. Dr Turnbull speaks of your behavioural reactions and notes you have difficulty in controlling your intense emotions, including a tendency towards rage. He highlights the need for you to permanently cease abusing drugs, but is of the opinion you are capable of rehabilitation. I accept this is the case.

71 Your offending was serious. Shortly after you killed Joanne Martell, you threatened witnesses against telling authorities what happened and they were scared of you. You washed her body with bleach to remove evidence, then moved her from the house to a bush location where you concealed and abandoned her. To do this, you enlisted your son's assistance. It was a cruel course of action that deprived her loved ones from knowing what happened until years later. The pain and uncertainty of that period is still raw. These actions aggravate your offending.

72 While your offending was serious, I accept it was spontaneous. At the time, you were affected by drugs, and your anger got the better of you. I view this behaviour in the context of diagnosis of a personality disorder and PTSD.

73 Your plea of guilty must also be taken into account. It is of utilitarian benefit to the justice system and, importantly, you have saved Ms Martell's family from enduring a contested trial. I accept this reflects some remorse on your part, which is supported by Dr Turnbull reporting that you 'feel for the girl', and hold a sense of sadness about what has occurred and feelings of guilt for the victim.

74 Taking all circumstances into account, I sentence you to nine years' imprisonment. I will order that you serve six years before becoming eligible for parole.

75 As you have pleaded guilty to the offence of manslaughter, I have imposed a less severe sentence than I otherwise would have. I declare that but for your plea of guilty to the charge, I would have sentenced you to 12 years' imprisonment with a non-parole period of nine years.

76 I declare that you have served 646 days of pre-sentence detention.

[1] Crimes Act 1958 (Vic) s 5.

[2] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').