The Queen v Girgis [2016] VSC 43

2 The charge is one of assisting an offender contrary to s 325 of the Crimes Act 1958. Because the offence which you believed Maybus and Walker to have committed was murder, the maximum penalty is 20 years, which marks the gravity of this kind of offending.

3 The victim of the murder you believed to have been committed was one Michael Strike. Commencing next week Maybus and Walker are to be tried before a jury for his murder. So far as the proceedings against them are concerned, they are presumed innocent but, as far as these proceedings against you are concerned, I must proceed on the basis that they committed that offence.

4 To properly convey the gravity of your offending, it is necessary to briefly describe the circumstances leading up to Strike's death and the immediate aftermath. This account is based largely on your statement to the police dated 8 February 2016.

5 On the afternoon of 24 May 2014, Strike, who was affected by alcohol and drugs, attended uninvited at the Brunswick clubhouse of the Melbourne Chapter of the Bandidos Outlaw Motorcycle Gang. He was not a member of the Bandidos or any other Outlaw Motorcycle Gang (OMCG). You, Maybus and Walker, who were all members of the Bandidos, were inside the clubhouse. According to your statement, Walker's dog "Trouble," who was outside, started barking at Strike. Walker opened the door and told Strike to leave but unfortunately he wouldn't. Walker dragged him inside the clubhouse. Strike was talking about a petrol bomb that had been thrown at the Dandenong clubhouse of the Bandidos and about knowing a former member of the Bandidos, a man named Michael Bogovic, whom you also knew. Maybus and Walker started punching Strike. You went into another room of the clubhouse to try and contact Bogovic. When you came back, you saw Walker wrestling with Strike and you saw Maybus hit Strike forcefully with a heavy metal bar, twice to the back and then to the head, which split his head open and knocked him out. A short time later, Strike recovered consciousness and was moaning for help. Instead of calling for an ambulance, Strike was wrapped in a blanket and the three of you placed him in the back of a van. Maybus drove off in the van, with Strike in the back, but instead of dropping him off near a hospital, he dropped him off on the side of a road near a cemetery and returned to the clubhouse. You and Walker were still at the clubhouse and, on Maybus' return, learned of Strike's fate. At that point, you believed Strike was dead and you believed Maybus and Walker to have murdered him. With the assistance of a club "prospect", you continued cleaning up the main area of the club house using bleach. There was a lot of blood to clean up. In the process you got blood on your club clothing. You put this bloodied clothing in a bag which, later that night, you gave to a lodger at your home to dispose of. It is these acts - the cleaning up of the blood at the clubhouse which took some hours and the disposal of the bloodied clothing - which are the acts by which you rendered assistance to Maybus and Walker at a time when you believed they had murdered Michael Strike.

6 Your counsel submitted that your offending was in the low to mid-range for the offence of assisting an offender. The prosecutor submitted it fell within the mid-range. In my view, the cleaning of the "whole main area"[1] of the clubhouse with bleach in circumstances where you had shortly before witnessed the brutal and wholly unjustified attack on Strike is inconsistent with this being a low range instance of the offence of assisting an offender. Your contribution to the attempted cover up of the murder was considerable, even though you failed to clean up all the blood, which, fortuitously, enabled crime scene investigators to find drops of blood containing Strike's DNA when they executed a search warrant at the clubhouse. I accept the prosecutor's submission that this offence falls in the mid-range for offences of this kind.

7 I have received, and read several times, victim impact statements from Mr Strike's mother Sandra, father Peter and sister Lisa. Words like "horror", "agony", and "unbearable" appear in those statements, though as they say, no words can do justice to what they feel. Understandably, their victim impact statements focus on Mr Strike's murder. It must be remembered that I am not sentencing you for that offence however the content of the victim impact statements underscores the seriousness of assisting an offender or offenders in the attempted cover up of a murder.

8 Your offending occurred at a time when you were on a Community Corrections Order (CCO). That is an aggravating factor. You were put on that 12 month CCO by Melbourne Magistrates Court on 4 March 2014 for possessing counterfeit money. On the same day, in respect of one charge of trafficking methylamphetamine and two charges of possessing a prohibited weapon, you were sentenced to an aggregate 90 days of imprisonment. There was a declaration that you had served 90 days by way of pre-sentence detention. It is very concerning that within a few months of serving your first term of immediate imprisonment and being put on a 12 month CCO, you committed the current offence. You will in due course have to face proceedings for the breach of that CCO.

9 In relation to other relevant priors, the County Court in June 2011 sentenced you to 18 months imprisonment, wholly suspended for 30 months, for trafficking a drug of dependence and fined you for trafficking pseudoephedrine. You successfully completed the operational period of the suspended sentence.

10 There are also a number of convictions and fines from Magistrates Courts in respect of possessing and using drugs dating back to 2006.

11 I wish to highlight a number of points about your antecedents. First, they are limited. Second, your prior history does not include any offences for actual violence. Third, you were 32 years of age before your first court appearance in 2006. That bears positively upon my assessment of your prospects of rehabilitation.

Plea of guilty and undertaking to assist prosecution

12 In terms of mitigating factors, the main considerations are your plea of guilty and your undertaking to assist the prosecution against Maybus and Walker. Both are significant matters but your undertaking to assist the prosecution, in particular, justifies a very substantial discount on your sentence. If you honour that undertaking, and give evidence in accord with your statement, it will be significant assistance given in relation to a brutal murder. It will be the only eyewitness account for the prosecution as to the infliction of the fatal injuries on Strike. In turning Crown witness against two members of an OMCG on such a serious charge, your life and the lives of your loved ones are placed at risk, indefinitely. You are currently in protective custody, locked down for 23 hours a day. Jail will be much harder for you than for prisoners who are not in protection and you will have to deal with the fear of reprisals not only whilst in jail but thereafter too, for the rest of your life. As the informant said in evidence, it is "very uncommon" for a former member of an OMCG to turn Crown witness. It is in the community's interest that such cooperation by you and others in the future be encouraged by the giving of significant sentencing discounts.

13 It was submitted that your plea of guilty, and your undertaking to assist the prosecution, is evidence which also supports a finding that you are remorseful. I hope that is the case but I balk at making such a finding. You were originally charged with the current offence when you were arrested in January 2015. You could have pleaded guilty to that charge throughout 2015 and thereby demonstrated remorse. The prosecution charged you with murder on 21 January 2016. That is what seems to have prompted a change of attitude on your part, not remorse. The deal you struck with the prosecution resulted in the dropping of the murder charge and reinstatement of the current charge. On the evidence available to me, I cannot find on the balance of probabilities that you are remorseful.

14 You were 40 at the time of the offence and are now nearly 42. Your parents and one sibling, a brother, are all deceased.

15 Your parents separated when you were five years of age. Your father returned to Egypt and you had no further contact with him. He was murdered there in 1994. Your brother drowned in 1997. Your mother died in 2007.

16 After completing Year 11, you went to work in the printing industry. You then did three years of a four year sheet mental apprenticeship. You worked in construction for 10 years. You became general manager of a labour hire company.

17 A motorcycle accident in March 2012 interrupted this steady work history. You were laid up for several months and couldn't work for two years.

18 In mid-2014 you resumed work, doing bike repairs.

19 In 2006 you began a long term relationship with your current partner Katherine. She has two young children from a previous relationship. You and Katherine have had two further children, who are aged six and four. Katherine did not attend the plea hearing. I was told there is tension in the relationship but that it is ongoing.

20 Although your criminal history is limited, your past association with OMCGs such as the Bandidos and the Finks to whom you "patched over" in late 2015 gives one pause. But in pleading guilty to the current offence and undertaking to assist the prosecution against Maybus and Walker for murder, you have in my view made a decisive break with OMCGs. You have a solid work history and a young family to consider. In other words, you appear to have the capacity and the motivation to lead a law abiding life. I am also told that you ceased illicit drug use in 2013. You will appreciate that staying off the drugs is critical to your future. In all the circumstances, I am prepared to find that you have reasonable prospects of rehabilitation.

21 Your counsel, relying on Boulton's case,[2] submitted that I should deal with you by way of a CCO. The Prosecutor submitted that such a disposition was open but that it was inappropriate for two reasons. First, he pointed to the complicating fact that you are on remand for extortion matters. By way of background, you admit that in late 2015 you "patched over" to the Finks OMCG. It is alleged that you were then involved in extortion. Your counsel told me it is alleged to relate to former members of the Finks who had not paid their "exit fees". You were arrested on those matters in December 2015 and remanded in custody. There is a committal mention scheduled for late April. The second reason the prosecutor submitted I should not put you on a CCO is that it may increase the risk of you coming into contact with persons who might be or might have contact with members of OMCGs.

22 My view is that a CCO is unsuitable for at least three reasons. First, there is the seriousness of the offence. As mentioned your acts included the cleaning of the actual crime scene, having witnessed the infliction of the fatal injuries. Second, the offence was committed shortly after you were placed on a CCO. Third, even if you are bailed on the extortion matters, being on a CCO may well increase the security risk for you.

23 In my view, the appropriate sentence is one of immediate imprisonment.

24 Accordingly, I sentence you to imprisonment for six months.

Section 5 (2AB) Sentencing Act 1991

25 Section 5(2AB) of the Sentencing Act 1991 requires me to state that I have passed a less severe sentence because of your undertaking to give evidence against Maybus and Walker, and I do so.

Section 6AAA Sentencing Act 1991

26 Section 6AAA of the Sentencing Act 1991 requires me to indicate the sentence I would have given you but for your plea of guilty. Because your plea of guilty and undertaking to assist the prosecution are interwoven, I propose to indicate the sentence I would have imposed but for that combination of mitigating factors.[3] I would have sentenced you to 24 months imprisonment with a non- parole period of 18 months.

27 I am also required to make a declaration in relation to presentence detention. You were arrested and charged with the current offence on 15 January 2015. You remained in custody until 18 February 2015, when you were released on bail. You were at liberty until 15 December 2015 when you were arrested in relation to the extortion matters. You were remanded in custody on those charges. The relevant period of pre-sentence detention on the current matter is therefore the period from 15 January 2015 until 18 February 2015, a period of 35 days.

[1] Statement of John Girgis dated 8 February 2016, p13 [44].

[2] R v Boulton [2014] VSCA 342.

[3] Cf R v Lewis [2015] VSC 252.