The Queen v Hague [2018] VSC 323

2 It is now my responsibility to sentence you for the charge of the murder of Ricky Balcombe.

3 The murder of Ricky Balcombe occurred shortly after 3.20pm on the afternoon of Friday 5 May 1995. Balcombe, who was then aged 16, died as a result of being stabbed multiple times by you. The incident occurred in the corridor leading to the Geelong Mall in Little Malop Street, Geelong. Balcombe was later transported by ambulance to Geelong Hospital but was pronounced dead at 4.14pm that day.

4 At the time of the offence you were 21 years of age, having been born on 27 June 1973.

5 As the prosecution put its case, which the jury can be taken to have accepted, relevant events began two weeks earlier at about 10.30pm on the night of Friday 21 April 1995. At that time, Ricky Balcombe and his friend Nick Munn, who were both members of the street gang known as the 'Mainstream Criminals', were walking in Malop Street, Geelong when approached by a group of people, including you. There is no evidence to indicate that you were a member of any street gang.

6 There was a verbal altercation, following which you pursued Ricky Balcombe and having caught him, attacked him causing injuries to his face and a cut to his leg. The particular circumstances of this incident were described by your friend Nathan O'Neil during the course of his evidence before the jury. Other than being relevant to evidence of motive and part of the context for what later occurred, I make it clear that this incident and your attack on Balcombe plays no other part in the sentence which I will impose on you.

7 As a result of this incident Balcombe and his friends, who were members of the 'Mainstream Criminals', determined that they would obtain revenge and a large number of them then travelled back to Malop Street sometime after the incident. They observed you at Kev's car park, a place where people went to meet, in a brown-coloured Holden Kingswood sedan which was owned by an associate of yours, John Nelis.

8 A number of those people, who were carrying weapons, attacked the car and in all likelihood that occurred at about 1.25am. You were seated in the driver's seat of the vehicle and whilst you were there a machete was used to smash the driver's side window. The result of that was that you received a small cut to your neck and the machete was in fact left inside the vehicle. On the evidence it seems that Balcombe, whilst the reason for the attack on the car, did not himself take part in this attack.

9 As a result of the attack, you drove the vehicle out of the area and you and David Lewin, who had driven the car earlier, were later reunited. Lewin had been taken to a police station for matters unrelated to this case.

10 The prosecution case was that you believed the attack on the vehicle was connected with your earlier assault that day on Ricky Balcombe and thus gave you a motive to respond.

11 The events of 5 May 1995 leading to the death of Ricky Balcombe can be summarised as follows. Ricky Balcombe went to the Geelong Mall that day as he regularly did; spending time at the Golden Cue amusement parlour with his friends including Paul Bellia, who was a witness to the attack on Ricky Balcombe.

12 On that day you had been at your home at St Georges Road, Corio. At some stage, at around lunchtime, you and David Lewin had gone to Geelong Grammar School to see your friend Nathan O'Neil. O'Neil and his father were tradesmen working at the school. Whilst there you assisted the O'Neils with the unloading of a truck. Sometime after that David Lewin took you back to your residence in Corio. Consistent with the jury's verdict, it follows that you went from there into the Geelong CBD. It is unclear as to how you arrived at the CBD. Whilst in the CBD, the evidence indicates that you were seen by Leigh Witcombe, who was a 15-year-old boy and the brother of your then girlfriend. There was some exchange of greeting between the two of you according to his evidence.

13 Shortly after 3.00pm Christopher Lawson, who was a friend of Ricky Balcombe and who was also a member of the 'Mainstream Criminals', was walking along Little Malop Street to the east with his brother Michael Lawson when he saw you leaning up against a pillar near the loading dock at Market Square. According to Christopher Lawson's evidence you are alleged to have said to the Lawson brothers, 'you're fucked, you fucking dogs'. Though there was a risk of an altercation between you and Christopher Lawson, Michael Lawson's interference prevented it. I note that although Michael Lawson gave evidence at your trial, he had no particular recollection of this incident.

14 The evidence of Paul Bellia indicated that sometime after this, he and Ricky Balcombe were proposing to go to the Bay City Plaza, which was across Malop Street, from Market Square. They were seen together by Christopher Lawson. As they neared the lifts you approached them and were seen by Bellia. According to Bellia you said, 'do you remember me motherfucker?'. You then reached for the knife you were carrying and repeatedly stabbed Ricky Balcombe with it. Balcombe fell to the ground and you are alleged to have then gone after Bellia, who ran out into the Mall and across to the Golden Cue. A large number of people saw the incident but Bellia is the only one who identified you as the assailant. Ricky Balcombe moved a few steps before falling to the ground. The witness, Phong Huynh, walked to the passageway leading into the shopping centre and saw you holding the knife. He told you to drop it and you threw the knife onto the floor. Huynh kicked it into the corner. You then ran from the scene along the Mall, along Little Malop Street, in the direction of Yarra Street.

15 Balcombe was treated at the scene and taken to the Geelong Hospital, arriving there at 3.45pm. He was declared deceased, as I have already said, at 4.14pm.

16 In the subsequent autopsy carried out by Dr Matthew Lynch, three stab wounds were located; one to the left hand side of the back, one to the shoulder blade and one to his left calf. The cause of death was determined to be stab injuries to the chest and neck.

17 The Homicide Squad began to investigate and that process continued until you stood trial for this matter commencing at the beginning of March of this year.

18 In the meantime, having left the scene, the prosecution case was that you went to a unit in Corio occupied by the witness Briony Eccles. She gave evidence at your trial. In straightforward terms, the purpose of you and David Lewin attending at that unit was said to be for you to change your clothing presumably because you were concerned traces from your offending were left on the clothing you were then wearing. I have to assume that the jury accepted that evidence and I therefore sentence you on the basis that part of your activities included a visit to Briony Eccles' place for the purpose of changing your clothing.

19 The evidence indicates that, having done that, you went home to your own residence and then, apparently riding a bicycle, you went next to your girlfriend Belinda Witcombe's place. Although the timing of your arrival was the matter of some significant dispute, on the prosecution's case you did not reach Belinda's residence until well after the time of Ricky Balcombe's death.

20 The witness Janelle Landy gave evidence that a couple of days after the death of Ricky Balcombe, she was in the Mall with a group of people, including yourself. The issue of the death of Ricky Balcombe was raised in conversation and according to Ms Landy you said, 'I stabbed him in the back, fuck him'. I assume the jury also accepted this evidence.

21 After some time had passed and the matter investigated by the Homicide Squad you were charged with the murder of Ricky Balcombe in 1996 and held in custody. Ultimately you did not face trial for your offending then as the prosecution filed a nolle prosequi.

22 During the time of your remand you were at Pentridge Prison and incarcerated with another prisoner, [redacted], who was then serving a sentence. [Redacted] gave evidence at your trial of a conversation he had with you in the course of which he asked you how Ricky Balcombe 'got bowled', to which you responded, according to his evidence, that you stabbed him. Again, in all likelihood, the jury accepted this evidence.

23 You were interviewed by police on a number of occasions and on each occasion you denied any involvement in the killing of Ricky Balcombe.

24 Likewise, your case at the trial on the charge of murder, during which you gave sworn evidence, was conducted on the basis that you were not present and did not cause Ricky Balcombe's death.

25 The murder of which you have been found guilty is obviously a most serious offence. The offence carries a maximum penalty, as previously stated, of life imprisonment.[2] The seriousness of your offending is illustrated by the fact that you sought out Ricky Balcombe, who was at the time five years your junior, and inflicted fatal stab wounds. Balcombe had no opportunity to defend himself. You brazenly stabbed Balcombe in a public place at a time when there were a large number of people in the vicinity who were witnesses to your actions. Having inflicted the fatal injuries you then fled the scene. This was therefore a deliberate and callous stabbing which you had thought about for some time, although on the evidence I cannot know for how long. Further, as the victim impact statements demonstrate your actions have had a profound effect on the lives of Ricky Balcombe's family, to which I will shortly turn.

26 During the plea an issue arose as to whether you should be sentenced on the basis that you intended to kill Ricky Balcombe or that you had the lesser intent to cause him really serious injury. It was put on your behalf that there was no evidence for me to infer the former beyond a reasonable doubt.

27 In my view the conclusions I can draw from the evidence and consistent with the jury's verdict on that issue are as follows:

(a) You were angry about the attack on the vehicle on 21 April 1995 and harboured some thoughts about retribution for that attack; though during that time you were never heard to say that you intended to kill Balcombe or anyone else;

(b) On Friday 5 May 1995, you went to Geelong Mall for a reason that I cannot specifically identify; I am not able to conclude that you went there knowing that Ricky Balcombe was there;

(c) When you went to the Mall you had a knife in your possession for reasons that are not obvious on the evidence;

(d) Whilst in the Mall you saw Ricky Balcombe with Paul Bellia and then decided to attack Balcombe using the knife you had in your possession.

28 I will return to these matters in concluding the sentence to be imposed on you but the result is that on the evidence I could not be satisfied beyond reasonable doubt that you went to the Mall with the intention of finding and killing Ricky Balcombe or that your intention at the moment you attacked him was to kill him as opposed to an intention to cause him really serious injury.

29 During the plea hearing on 2 May 2018 the Court was provided with four victim impact statements from Christine Loader, the mother of Ricky Balcombe; Graeme Loader, the step-father of Ricky Balcombe; Sandy Carroll, the sister of Ricky Balcombe and Corina Morgan, also the sister of Ricky Balcombe. These victim impact statements were read aloud to the Court by the prosecutor Ms Flynn QC. Each of the statements demonstrates not only the loss that these people have suffered as a result of your actions in murdering Ricky Balcombe but the extended trauma each of them has endured by the fact that finality in this matter has taken 23 years. The effect of your actions on these people will of course remain with them for the rest of their lives. It is indeed a tragedy that the life of one so young was taken in the circumstances in which it was. I have taken each of the victim impact statements into account in determining the sentence that I will impose on you.

30 You are now 44 years of age and were born in Geelong. At the time of this offence, as I have already said, you were in your twenties and at that stage, as was submitted, you had relatively few prior convictions.

31 You have a younger sister. According to a report provided by Carla Ferrari, a Consultant Psychologist, your childhood was difficult due to the young age of your parents when you were born and the fact that they struggled financially due to their age. You have claimed to Ms Ferrari that at the age of nine you were a victim of sexual interference by a neighbour and as a result the person concerned was charged and convicted. These matters still have an effect on you. You suffered a number of tragedies and losses as a young person with a friend's suicide by hanging, the death of your maternal grandmother when you were 16 and the loss of a cousin some short time later. You also lost a friend in a motor vehicle accident.

32 At the age of eight you were diagnosed with Attention Deficit Hyperactivity Disorder ('ADHD').

33 Your secondary education finished at Year 11 when you obtained an apprenticeship as a structural aircraft maintenance technician but you did not complete the apprenticeship. You have struggled to maintain employment over the years working in various skilled and unskilled positions. In more recent years it would appear that you have involved yourself in a number of self-employed positions including trade work and various other activities. You completed vocational courses in occupational health and safety and have acquired licences in relation to earthmoving equipment. You held a pilot's licence for about 12 years but an aircraft that you owned and two motor vehicles have been sold in order to fund your legal costs. In custody you have been employed in metal industries as a welder.

34 You have two children, now aged 14 and 22, with your first long-term partner. That relationship lasted about eight years. You maintain a relationship with your children. You then were involved in another relationship, which ended relatively recently and your current relationship is with a woman with three children of her own from a previous relationship. I am told and accept that this is a committed relationship. You have a good relationship with her children and she has supported you throughout these matters, including since your arrest in 2017 in relation to this matter.

35 During the plea, Ms Ferrari's report was produced. Ms Ferrari did not give evidence. There are aspects of that report that the prosecution do not accept.

36 The report discusses your ADHD diagnosis and that while you had a short course of treatment in childhood, which was stopped due to side effects, you recommenced treatment in adulthood. You are still affected by this condition and also suffer from depression and anxiety particularly in your present circumstances. Ms Ferrari expresses the opinion that you are at a 'low risk of similar offending in the future' and it is that assertion the prosecution take issue with. Bearing in mind that Ms Ferrari's evidence consisted only of her report, rather than sworn evidence, and also that you have sustained a number of serious convictions since 1996, I would be willing to accept the prosecution's position. Given your history, in my opinion, your prospects for rehabilitation are guarded at best although I acknowledge the apparently stable nature of your circumstances at the time of your most recent arrest.

37 Your criminal history began in 1990 when you were convicted of the offences of burglary, theft and theft of a motor vehicle and were placed on a suspended sentence. In 1992, you were again convicted of burglary and again placed on a suspended sentence. Later in that year you were convicted of effectively street offences in relation to language and behaving in an offensive manner and fined. In early 1993, you were convicted of traffic offences including driving whilst authorisation suspended and again placed on a suspended sentence. In November 1993, you were convicted of burglary, theft, damage to property, driving while disqualified, going equipped to steal, possessing a prescribed weapon, receiving stolen goods and other charges the result of which was a total effective sentence of 18 months with a non-parole period of 12 months. In January 1994, you were convicted again of theft, attempting to obtain property by deception, driving whilst authorisation suspended and sentenced to one month imprisonment on each charge concurrent.

38 The prosecution also point to offending in which you were engaged which was subsequent to the commission of this offence as being relevant to the raising of the issue of the quality of your prospects of rehabilitation. Since this offence of murder you have been convicted of various offences of dishonesty, traffic offences, reckless conduct endangering injury and, significantly, on 10 August 2011 in this Court,[3] two counts of reckless conduct endangering life and possession of an unregistered general category handgun for which the total effective sentence was four years' imprisonment with a non-parole period of two and a half years. You were released on parole on 3 March 2014 and that parole was cancelled on 16 April 2014 and you were required to serve the balance of your sentence.

39 This is not an enviable record, and the prosecution are right to be concerned that it raises significant doubts about your prospects for rehabilitation, though your employment history and your relationship history appear to have been relatively stable notwithstanding this criminal activity.

40 In a previous ruling on the admissibility of the evidence of Paul Bellia, I set out the history of this matter.[4] In summary I noted that:

In 1996 [you were] charged with the murder of Balcombe and in 1997 a committal proceeding occurred resulting in [you] being committed for trial on 8 May 1997. However a nolle prosequi was subsequently entered and so the trial did not commence. In 2017 another indictment was filed in this Court charging [you] with murder and [you were] taken into custody.[5]

41 The delay in this matter coming on for trial has no doubt been onerous for you and, as the authorities describe, potentially, a punishment in itself. As I understand it, your counsel did not rely on the delay but I should refer to it. In view of the verdict of the jury I must proceed on the basis that had you acknowledged your role in the killing of Ricky Balcombe there would obviously not have been a delay of 22 years. Clearly those who suffered most from the effects of that delay were the family and the friends of Ricky Balcombe.

42 Throughout the long history of this case you have always maintained that you were not the person who murdered Ricky Balcombe. I also note that during the period between 1996 and the present you have been regularly involved in committing other offences, several of which were very serious and to which I have already referred. It cannot therefore be said on your behalf that during that period of delay you led a law abiding life or turned your life around so far as rehabilitation is concerned. It is most unfortunate that the matter took so long to conclude but I do not consider it appropriate to take that into account as a mitigatory factor, even on the basis that during that time your rehabilitation was significantly advanced as, in view of your record, I am not persuaded it was.

43 It is also obvious that the circumstances include no element of remorse arising for consideration.

44 The other aspect of delay is the consideration of the sentencing practices for murder at the time of the offence as opposed to the present. As the Court of Appeal noted in Stalio v R:

It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time. [6]

45 The broad figures suggest that average head sentences for murder have increased by a factor of approximately four or more years since 2006.[7] Although these figures are of limited utility because of their generality, to the extent that I can I have taken them into account.

46 I am required to sentence you consistent with the verdict of the jury. I have already briefly referred to my conclusions.

47 For the purpose of sentencing you I find that the attack on the vehicle in which you were sitting on 21 April 1995 was an event which, unsurprisingly, caused you considerable aggravation. I am satisfied that, for the purpose of sentencing you, you knew that it was connected with the earlier incident in which you had attacked and assaulted Ricky Balcombe. I am of the view that you were sufficiently aggravated by the attack on 21 April 1995 to be determined to take some kind of retributive action. However the effect it had on you beyond that it is difficult to say.

48 There is no evidence that you spent any time between then and 5 May 1995 devising a plan for that retribution. For whatever reason, on 5 May 1995, having been at Geelong Grammar school and then having gone home, you must have gone into Geelong and at the time you were in there you were armed with the knife that you used to kill Ricky Balcombe. I am not able to say where that knife came from. I am not able to say whether you expected to see Ricky Balcombe on that day or not. I am also unable to say why you chose that day and that location to carry out the act you did which caused Ricky Balcombe's death. It seems to me that, on the evidence, an opportunity arose on that day when you saw Ricky Balcombe to exact revenge for what had occurred on 21 April 1995 and you took that opportunity, stabbing him to death. As I have already stated I could not be satisfied beyond reasonable doubt that your intention at the time you stabbed Balcombe was to kill him as opposed to cause him really serious injury.

49 Nevertheless this was a serious stabbing of a teenager, that occurred in broad daylight and in a well-populated area. It is clear that principles of denunciation and general and specific deterrence must be taken into account. The violence you resorted to must be denounced and condemned by this Court. General deterrence should be taken into account as it should be acknowledged that exacting revenge is never acceptable. Whist I note it would be open to me to reduce the weight given to general deterrence because of the effect of delay, I decline to do so here on the basis, as I have already said, that you have shown little prospect for rehabilitation in the subsequent years. You also need to be deterred yourself from any repeat of such behaviour in the future and the principle of specific deterrence remains significant.

50 In all the circumstances, the appropriate sentence to be imposed on you on the charge of murder is a sentence of 26 years' imprisonment.

51 I order that you serve a minimum of 20 years' imprisonment before being eligible to apply for release on parole.

52 I declare that the pre-sentence detention is 671 days including today and I direct that that be entered in the records of the Court and reckoned as time already served.

53 I have made the disposal order sought by the prosecution and not opposed by you.

[1] Crimes Act 1958 (Vic) s 3.

[3] R v Hague [2011] VSC 371.

[4] R v Hague [2018] VSC 26.

[6] Stalio v R [2012] VSCA 120; (2012) 46 VR 426, 441 [54].

[7] Sentencing Advisory Council: Sentencing Snapshot for murder September 2005 and April 2017. Note there are no Snapshots prior to the September 2005 Snapshot which takes into account trends for murder between 1998/99 and 2003/04.