The Queen v Campbell [2017] VSC 227

2 On 1 May 2017, during your plea hearing before me, Mr Lewis, the Crown Prosecutor, presented an opening and made submissions as to the sentence to be imposed on you. Mr Sexton, of counsel, made the plea on your behalf. The maximum penalty for murder is life imprisonment and it is now my responsibility to sentence you for this crime.

3 It is alleged that you were involved in the killing of Joshua Kane with two accomplices, Lanie Snell and Samuel Worthy on 23 January 2016. Snell and Worthy have pleaded not guilty to the charge of murder brought against them and will stand their trial before me commencing on 8 May 2017. At that trial the prosecution proposes to call you as a witness and you have given a sworn undertaking to give evidence in accordance with a police statement you made on 7 April 2017.

4 Before that trial can proceed and before you can be called as a witness it is necessary for me to sentence you for this offence of murder. By your plea of guilty, and through your counsel, you admit that the facts contained in the prosecution opening and those that you have detailed in your statement, are accurate. Indeed, you have sworn as to the truth of your statement before me during the plea.

5 Joshua Kane was 20 years of age at the time of his death on 23 January 2016 and had lived in Hamilton in regional Victoria. He had been in a relationship with Emily Kenny which had ended. Kenny later commencing a new relationship with the accused man Worthy who ultimately caused Kane's death. The deceased was also friendly with the accused Lanie Snell and with you, whom he had met at a TAFE college during year 11.

6 Commencing on 4 May 2014, Joshua Kane had moved into a Hamilton caravan park and lived there until his death. Shortly afterwards you also moved into that caravan park but later moved out when you obtained a bursary to attend the Monivae Catholic boarding school in Hamilton. The accused Snell also moved into the caravan park on 16 September 2014. There were difficulties in the relationship between the deceased and Snell and her children and in October 2015 she moved out of the park. Snell and the deceased were not on speaking terms and that seemed to be connected with the way the deceased had spoken to, or treated, her children and the language he had used. It is alleged that may be a relevant motivation for Joshua Kane to be later murdered at least so far as Snell and Worthy were concerned.

7 On 10 December 2015 you and Worthy went to a store in Warrnambool and purchased a machete which was later used in the killing of Kane. The machete was purchased for you by Worthy as a Christmas present. That is significant because it became the murder weapon.

8 From mid-January 2016 onwards you knew Worthy wanted to harm Kane because he told you so. In further discussions about this, Snell is alleged to have encouraged Worthy to harm Kane. Also, at about this time you and Snell began a sexual relationship. At this stage, according to your account of your own situation, you were using cannabis, amphetamines, alcohol and valium.

9 On 22 January 2016 Worthy and Snell were heard by witnesses discussing the prospect of killing the deceased. Also on that day Worthy said that he had arranged to take Kane for a drive. You knew that and agreed to be part of the trip but refused to be part of any assault on the deceased. You were important to Worthy's plan because if you did not go, Kane would not have agreed to go.

10 On Saturday 23 January 2016 you, Snell and Worthy were at Snell's house. Worthy had collected you and had asked you for the machete that had been purchased in December. Further preparations were made for the drive with the deceased including the taking of a change of clothing and a plastic bottle of bleach, which made it obvious to you that what was proposed was more than just an assault. At about 7:14pm. Worthy is alleged to have rung Joshua Kane and asked him to go for a drive. He agreed. The three of you went to the caravan park and collected him in Snell's car, a black Mitsubishi sedan.

11 Worthy was driving the car and after collecting Kane and going via a supermarket so Kane could purchase a drink, you all went to the Mt Eccles National Park. In the course of travelling to where the attack ultimately occurred you realised that Joshua Kane was to be killed and you knew it was going to happen.

12 After parking the car you all walked along a track leading to Lake Surprise. During that walk, Worthy attacked the deceased man with your machete striking him several times and causing very serious injuries. At this point, despite hearing the screams of Joshua Kane, you turned and walked back down the path. You then saw Snell and Worthy on the path. Worthy had the machete and it was covered in blood. There was a brief discussion with Worthy saying he "could not do it". Snell and Worthy then walked back in the direction of the deceased but returned to where you were standing when they could not locate him. The three of you then returned to the car park. Once there you heard Kane calling out for help. You stayed at the car park while Worthy and Snell went off to find Kane. There was then more screaming which stopped suddenly.

13 Worthy and Snell then returned to the car park. You were told to clean the machete and you did so using the bleach. It was then discovered Snell's vehicle had a flat battery and Snell telephoned Myssie Andrews requesting her assistance. Myssie Andrews drove with David Andrews, her brother, to the Mount Eccles car park and assisted in jump starting the car.

14 You say, and the prosecution accept, that you played no part in the attack on the deceased but you have pleaded guilty to murder on the basis that you accept you entered into an agreement to participate in a physical attack on Kane and you were aware that it was probable that he would be murdered in the course of that attack occurring.[1]

15 On the drive back to Hamilton, you all discussed what you would say if asked about your contact with Joshua Kane on that day. It was agreed that you would take the blame for killing Kane on the basis that you did not have children whereas Worthy and Snell did.

16 The following day you all went back to the area to collect incriminating evidence including the mobile phone and caravan keys of the deceased that had been left at a ranger's station. Later that night you returned and looked for the body of the deceased but did not find it.

17 On 26 January 2016 you and Snell moved back to the caravan park and collected the mobile phone of the deceased and a set of keys as well as a singlet. On Worthy's instruction you removed the SIM card from the deceased's phone and broke it.

18 Joshua Kane was reported missing to the police by his sister on 28 January 2016. That same day police spoke to Worthy who gave a false account of when he had last seen the deceased.

19 On Friday 29 January 2016 Myssie and David Andrews attended at the Hamilton Police Station after learning of Kane's disappearance through his sister. They then accompanied police to the location where Snell's car had been jump started. A crime scene was established and the deceased body found shortly thereafter approximately 70-80 metres down a subsidiary track leading off from the main walking track.

20 The following day the three of you were arrested and interviewed by police. You all maintained that after taking the deceased to the supermarket you had returned him to the caravan park. Later that story changed and conflicting accounts were given including your account that you had attacked the deceased - an account the police rejected.

21 A post-mortem examination was conducted on 31 January 2016 by Dr Linda Illes. During the post-mortem the deceased's advanced state of decomposition was noted. Dr Illes concluded the cause of death to be multiple sharp force and chopping type injuries consistent with the deceased having been struck with a heavy instrument with a sharp edge such as a machete, axe or cleaver.

22 It was appropriate for your counsel to concede the seriousness of this offence. It was brutal, unprovoked and, to a degree at least, was planned. The deceased was completely unsuspecting and he had done nothing to cause any of the events that led to his death. The murder weapon was yours and you facilitated the event by being present and therefore encouraging the deceased to go on the fatal trip. You also took part in the post-offence concealment of the offence for a number of days after the murder had occurred.

23 Three victim impact statements were presented to the Court by the prosecutor. They came from Garry Foley, the father of the deceased, Janine Kane, the mother of the deceased and Samara Foley, his sister. These statements describe the devastating loss of their family member. As they rightly point out, their suffering as a result of the death of Joshua Kane is for life. There is little the Court can do to alleviate that suffering and feeling of loss beyond making it clear that the impact of this crime on them has been taken into account in the sentence which I will shortly impose on you.

24 You are now aged 20 years of age and, apart from your parents, you have two brothers. Your childhood featured a degree of family discord characterized by family violence of which you were a victim. That apparently resulted in the breakdown of your parent's marriage.

25 During your primary education you were diagnosed with dyslexia. At the end of year 9 during your secondary education you left school and attempted a course at TAFE but were hindered by your worsening drug and alcohol problems. By your teenage years you developed a significant drug habit. You began with cannabis and also used methylamphetamine and amphetamines. Your cannabis use led to a diagnosis of Cannabis Use Disorder by the psychologist Mr Mathew Barth. Notwithstanding these difficulties, you persisted as a member of the Venturer Scout movement in which you participated as recently as 2014 prior your family's move to Hamilton. The leader of that group, Ms Faye Linnell, has written very positively on your behalf about your scouting involvement.

26 In Hamilton, as a result of being awarded a bursary, you returned to your education at Monivae College and completed the Victorian Certificate of Applied Learning. I have received references from the principal of that school and from the co-ordinator of the VCAL programme at that school. They both speak well of you and of your abilities despite your dyslexic difficulties. You were a boarder at that school and apparently fitted in well to that aspect. The principal, Mr Mark McGinnity, gave evidence during the plea and, importantly, expressed the school's intention to maintain contact with you and at some stage use you as resource to educate students at the school on the perils of drugs and their link with crime.

27 However, despite this progress, employment had been a challenge for you due to your abuse of drugs and alcohol, though I note that while you have been in custody you have apparently applied yourself to courses and to work that is available to you. Nevertheless, by January 2016 when this offence occurred, you had veered a long way off course.

28 You have no prior convictions which obviously stands to your credit.

29 The material before me indicates that you were treated by Dr Paul Robertson, who is a child and adolescent psychiatrist, from the age of eight years. Dr Robertson diagnosed depression, learning difficulties and emotional difficulties. The learning difficulties involved an impediment to reading and writing. Your treatment was also focussed towards treating your substance abuse issues. Dr Robertson's connection with you ended in 2015.

30 I have already mentioned the report of Mr Mathew Barth. He has assessed you and concluded that you have a major depressive disorder in partial remission. You are observed to have some propensity for violent behaviour that will need to be dealt with psychologically. You are in the early stages of dealing with your severe drug addiction and your insight into that problem is limited. Substance abuse treatment will be necessary.

31 Your mental state is not relied on as being a cause of your offending. There was nothing involuntary about your participation in this murder. However it is a relevant part of your circumstances and will have an effect on the difficulties you face in serving your sentence.

Plea of guilty, cooperation and undertaking to give evidence

32 As I have already mentioned you pleaded guilty on 20 April 2017 having offered to do so on 20 March 2017. You entered your plea on the day after the original trial of you and your accomplices was to commence. That followed a committal proceeding at the Warrnambool Magistrates' Court and three earlier directions hearings in this Court occurring on 15 November 2016, 9 March 2017 and 6 April 2017.

33 During your plea hearing you gave a sworn undertaking to give evidence in the trial of your co-accused. As I have earlier described you have made a statement to police which sets out the evidence you will give at the trial of your two accomplices and you have sworn the contents of the statement are true and correct.

34 There is no question that you are entitled to a substantial discount on your sentence for the information you have provided in your statement and for your willingness to give evidence in the forthcoming trial. The quality of the information you have given is apparently significant. The Crown do not contend otherwise. Prior to you making your statement, the Crown case was circumstantial as to what might have actually occurred when Joshua Kane was attacked, though I do not mean to suggest it was a weak case. However, you have provided detail in relation to the sequence of events which is clearly valuable evidence. No doubt you will be seriously challenged in the witness box.

35 Also by giving that information, you have exposed yourself and your family to risks. As a prisoner you are at significant risk due to the somewhat hollow and hypocritical code that prevails in prisons concerning those who assist the authorities. Your prospects for rehabilitation, which I accept are reasonably good, will in fact be prejudiced by the removal of opportunities while you are in custody due to the need to protect you from those risks.

36 Further, the Court will unhesitatingly reward those who, despite the consequences for themselves, are prepared to give evidence against their accomplices.[2] That principle clearly applies in this case.

37 In those circumstances, you are therefore entitled pursuant to s 5(2AB) of the Sentencing Act 1991 (Vic) to a sentencing discount and I declare accordingly that I am imposing a less severe sentence than otherwise would have been imposed because of the undertaking you have given to assist after you have been sentenced, and I direct that the undertaking you gave to give such assistance be noted in the records of the Court. In the event you do not properly comply with the undertaking you have given to give evidence when called upon, an application can be made that you be brought back to this Court and a consequence of that in all likelihood will be that a different and heavier sentence will be imposed on you.

38 It is important to understand that in circumstances like these a mere examination of the sentence imposed in numerical terms may give the impression of inadequacy. However, in order to give effect to the principles I have just referred to, the sentence needs to be viewed in the proper context.

39 I also accept that your plea of guilty and willingness to give that evidence is a sign of your remorse for what you have done. I recognise the effect of you giving such evidence on the conditions in which you will serve your sentence. It will be a sentence served under significantly more difficult circumstances.

40 At the time of this offence you were just over 19 years. You are now 20 years and fall within the definition of young offender in s 3 of the Sentencing Act 1991 (Vic). That is relied on as another mitigating factor. Your rehabilitation prospects are said to be positive based on your lack of a prior criminal history, your time in custody so far and the support you have from your family.

41 Your mother has written a reference and provided it to the Court. She obviously proposes to be a significant support for you through the difficulties you now face. There are a number of others who will also support you and that stands both to your credit and to your benefit.

42 The report of Mr Barth, psychologist, refers to this topic. He express some concern about your lack of insight into your behaviour yet noted you do not seem to endorse violent behaviour despite your actions here where, by not intervening, you appeared to do so. You have expressed a desire to use your time in custody positively. You are young and there remains time for you to recover from these most difficult circumstances. You will require mental health and substance abuse assistance. You have the support of your family and you have expressed a positive attitude to treatment.

43 As I have said, I would regard your prospects as reasonably good.

44 This was a planned and calculated killing of Joshua Kane and you played a significant role in it. The deceased was enticed into going with you and your accomplices with no idea of what might occur. By the time the drive to the national park commenced you knew what was going to happen. You must surely have wondered why such a catastrophic attack was necessary. Once it happened you did nothing to intervene or assist Joshua Kane. You then assisted the concealment. The killing itself was also cowardly and done with a vicious weapon. The considerations of general and specific deterrence are both significant.

45 On the other hand, I have had to give weight to your plea of guilty; your co-operation which the prosecution accept is significant and important; your youth and lack of prior convictions and, although to some extent lacking in specificity, your prospects for rehabilitation which are reasonably good. In those circumstances, and in accordance with principle, it is appropriate to moderate your sentence significantly.

46 For the murder of the Joshua Kane, you are sentenced to be imprisoned for 12 years and I fix a minimum period of nine years that you are required to serve before you become eligible to make an application for parole.

47 Pursuant to s 18 of the Sentencing Act 1991 (Vic) I declare that your presentence detention is a period of 459 days not including today and I direct that that be entered into the records of the Court and be reckoned as time already served.

Section 6AAA of the Sentencing Act

48 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I am required to declare the sentence that I would have imposed on you had you not pleaded guilty to this offence. Albeit that this is a thoroughly artificial exercise because none of the other mitigatory considerations would be available without a plea of guilty, I indicate that had you not pleaded guilty and provided the co-operation you have in relation to your accomplices, the sentence I would have imposed would have been a period of 21 years' imprisonment. I would have fixed a period of 17 years before you would have become eligible to apply for release on parole.

49 Finally, pursuant to s 78(1) of the Confiscation Act 1997 I order the disposal of certain property sought by the Crown and not opposed on your behalf.

[1] Crimes Act 1958 s 323(1)(d).

[2] See per Weinberg JA in Cottee v DPP [2010] VSCA 285 at para [25].