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[2015] VSC 739
Supreme Court of Victoria
2015-12-17
LASRY J
Original judgment source is linked above.
CRIMINAL LAW - Murder - Sentence - Joint criminal enterprise - One plea of guilty - Two trials - Whether each intended to kill or cause really serious injury - Conclusion of that issue for sentence - Failed relationship - Family law litigation - Planning of abduction and killing - Concealment of body - Co-operation with police - Serious violent offender - No disproportionate sentence.
1 Robyn Jane Lindholm, Torsten Trabert and John Anthony Ryan, you are each to be sentenced for the murder of Wayne Amey on or about 11 December 2013. The murder of Mr Amey followed him being forcibly abducted from the car park of his apartment building in Hawthorn by you, Torsten Trabert, and you, John Ryan, at the instigation of you, Robyn Lindholm. He was taken away, killed and his body carefully concealed. The prosecution case was that you were each part of a joint criminal enterprise to murder Mr Amey.
2 You, Robyn Lindholm, pleaded guilty to the charge of murder in this Court on 25 May 2015. You, Torsten Trabert and John Ryan, both pleaded not guilty to murder and stood your trial. During the joint trial, which lasted for about a month, despite accepting you were present at various stages of the abduction and attack on Wayne Amey, you blamed each other for causing his death and effectively each claimed you had no murderous intention. On 26 June 2015, you were both found guilty of murder by the jury. A question for me to determine arises as to what the intention of each of you was when you entered into the joint criminal enterprise. I will come to that issue directly.
3 The maximum penalty for murder is life imprisonment. On 16 September 2015, I heard submissions from the Chief Crown Prosecutor and from your individual counsel. It is now my responsibility to sentence each of you for that offence.
4 You each involved yourselves in this most serious of murders. You, Robyn Lindholm, were the instigator following a failed relationship with the deceased which left you angry and vengeful over joint property, and I have concluded that for some time you were wanting the deceased man killed. What transpired involved each of you planning the abduction and killing of another human, to be followed by the careful attempt to conceal that crime with a series of measures. They culminated in the callous dumping of the body in a place where, but for the eventual co-operation of one of you, that body might never have been discovered. The Ford Falcon vehicle that was obtained for the purpose of committing this offence was deliberately destroyed by fire by you. In my opinion, your offending is very high on the scale for the offence of murder.
5 Yet again, and to the extent there is a need to highlight this feature, the offending in this case is linked to the consumption by each of you of methylamphetamine more commonly known as 'ice'. For years my judicial colleagues and I have watched as this problem has developed to become an almost indispensable feature to some extraordinarily violent criminal behaviour. This case is but one more example. I wonder how strong the will of executive government really is in this area to inhibit and reduce the trade and consumption of this terrible drug.
6 In about 2005, the deceased man, Wayne Amey, and you, Robyn Lindholm, began a relationship. During that relationship the two of you purchased a property of about 10 acres at Bittern, a short distance south of Hastings. You were tenants-in-common of that property. You apparently already owned a 74 acre property at Glenhope, some distance north-east of Kyneton, which it was then planned would be sold.
7 There were difficulties in selling that property and there was a substantial mortgage on the Bittern property.
8 In 2010, the relationship between you and Wayne Amey began to fall apart and he engaged lawyers to resolve the issues that had arisen mainly in relation to the property at Bittern. Mr Amey instructed Craig Henderson from the firm Lander and Rogers, who gave evidence about the matter during the course of the trial. He gave evidence that the breakdown of the relationship followed upon you having another relationship. It was proposed that since the relationship had broken down, the property at Bittern was to be sold. Mr Henderson also gave evidence about being informed by Mr Amey about threats that had been made against him if the family law proceeding was continued.
9 On any view, the break down between you and Amey was bitter and it became clear that Mr Amey was anxious about his own safety. During the trial, Kyle Elliott gave evidence and described his relationship with you, Robyn Lindholm, commencing at the end of 2011 until March 2012 when he was imprisoned. He was aware of your previous relationship with Wayne Amey and he threatened Amey a couple of times. You told him what sort of a man you thought Wayne Amey was, and Elliott said he ended up hating him. He said you asked him to kill Amey quite a few times and you often argued on the subject.
10 On 15 June 2013, Elliott was again released on parole and was staying at his sister's house with you. During that time there were more frantic requests directed at Elliot by you to kill Amey or to get someone else to kill him. In June/July 2013, Elliott knew there were court proceedings on foot. He said that during that period, the killing of Wayne Amey was discussed with you every day. He said that on several occasions he told you he refused to kill Wayne Amey and you became very upset.
11 In addition, the witness Aaron Ardley also described being in a separate relationship with you, Robyn Lindholm, commencing around August 2012 for a period of time and similarly was asked by you to kill Wayne Amey. He said he agreed to do it and went into physical training for that purpose, though never actually made an attempt to carry out any plan to kill him. He did go to the Hawthorn apartment and into the car park because you, Robyn Lindholm, had given him the security card. He also conducted other surveillance, including in the vicinity of a restaurant that the deceased man was known to patronise.
12 During mid-2013, you, Robyn Lindholm, moved into a flat in Eric Street, Preston, because you had known Mr Edward Carey for some time. It was here that you and Trabert began a relationship and commenced living together at those premises. You, Torsten Trabert, had a wife and family from whom you were living separately. You, Robyn Lindholm, also knew you, John Ryan, and so it was at this time you all became known to each other. I am willing to accept that this occurred against a background of excessive use of methyl amphetamine.
13 As I said, the Crown case was that each of you were part of a joint criminal enterprise to kill Wayne Amey. The person with the motivation for Amey to be killed was you, Robyn Lindholm. You did not participate in the abduction and killing itself, though you did provide the swipe card to the other two which enabled them to access the secure car park in Mr Amey's apartment building. The killing of Amey was done by you, Torsten Trabert, and you, John Ryan. All of you were later involved in disposing of his body.
14 The issue that was raised by each of your counsel during the plea to which I have already referred was whether the intent of each of you at the time the deceased was killed was an intent to kill Amey or, the lesser state of mind, intent to cause him really serious injury. So far as you are concerned, Robyn Lindholm, the evidence I have already mentioned concerning your requests of other men is relevant. However, it is also necessary to examine the circumstances arising before the killing of Wayne Amey, the killing itself and what followed to resolve that issue of intent in relation to each of you.
15 In the evening of 10 December 2013, having been with you, Robyn Lindholm, you, Torsten Trabert, and you, John Ryan, drove the borrowed Ford Falcon vehicle belonging to Rosa Franze to the home of the deceased in Hawthorn. Rosa Franze understood she had lent the car to you for the purpose of it being repaired.
16 On the way to Hawthorn, you encountered the witness Aquil Ali. You, John Ryan, spoke with him and told him you were on your way 'to fix someone up' over some property and asked him to go along. He declined to become involved, but gave you a pen gun. Ultimately, that weapon played no part in the death of Wayne Amey.
17 You arrived at the apartment building of the accused at about 10:25pm and, using the swipe card provided by you, Robyn Lindholm, went into the car park but, upon becoming aware that the deceased man's vehicle was not there, left shortly afterwards. A few minutes later you returned and waited for the deceased. At 10:29 pm you, Trabert, rang you, Lindholm. At this stage you were in the car park. At 11:20pm, the deceased arrived in the car park. He can be seen arriving on the CCTV system. Very shortly after that he was attacked by you, Torsten Trabert, and you, John Ryan, and was then placed in the boot of the Falcon. At that stage, the deceased was still alive. You also took his red Toyota Hilux and left the car park in convoy. At 11:52pm you, Trabert, rang you, Lindholm, and no doubt reported what you had done. That call was made from the Kew area as you both drove back to Preston in separate vehicles, being the Falcon and the deceased man's Toyota Hilux.
18 Shortly afterwards, you arrived at the flats at 15 Eric Street, Preston. As I said, you, Trabert, and Lindholm were living there at the time. You, Torsten Trabert, went to the flat of the witness Edward Carey and asked him for some water in a jar. You told Carey that it was acid in the jar. Carey then went outside and to the vicinity of Rosa Franze's car, where he wiped something from the back of it, which was apparently blood, and then heard something moving and mumbling from under the boot lid. He heard the voice from the boot saying, 'you don't have to go this far, I'll do anything'. By this time the deceased had already been injured in the initial attack in the car park. Both of you, Trabert and Ryan, had claimed that the plan had been only to give him a physical 'hiding'. That had clearly been achieved by this stage. Consistent with such an intention he could have been released from the boot of the vehicle. Instead he was later killed.
19 Indeed, you, Torsten Trabert, asked Carey to give you a hand to 'finish it' but Carey refused to be involved.
20 Early the following morning, you, Trabert and Ryan, travelled to Broadford, Kilmore and Romsey and made several attempts to withdraw money from the deceased's Bank of Queensland ATM card along the way. Later that morning, utilising the Ford Falcon, the deceased's Toyota was left at a service station in Melton. Obviously by this stage the deceased had been killed. I am unable to determine on the evidence which of the two of you inflicted the fatal wounds. The body was moved from the Falcon and left covered in the rear of the Toyota. You, Trabert and Ryan, both then went to a car wash in Deer Park and thoroughly cleaned the Falcon. The thorough cleaning of the vehicle was also captured on CCTV, and that was played during the trial.
21 At 3:00am the next morning, all three of you went to where the Toyota had been left with the body of the deceased in the rear. You all then left the service station and ultimately went to Mt Korong via Kyneton, Taradale and Chewton. During that day, the body of the deceased was dumped at Mt Korong. From there you all went to the Empire State Hotel at Inglewood where you spent some hours drinking and purchasing a Keno ticket. Later in the day, more attempts were made by you to obtain cash from the ATM card taken from the deceased man, including at 4.54pm from a Westpac teller machine outside the Collins Newsagency at 95 Mollison Street Kyneton, where CCTV captured you, Trabert, and you, Ryan, attempting to make a withdrawal of $300.
22 At about 8:30pm on Thursday 12 December, you all went to the home of Leanne Soccio and you, John Ryan, told her you wanted to leave a red utility - which was Amey's vehicle - at her place. She noted that whilst there, the number plates on the vehicle were being changed.
23 The next day at 4:30am, you, Robyn Lindholm, and you, John Ryan, knocked on Leanne Soccio's lounge room window and woke her up. You went inside and, according to her evidence, you, Ryan, said, 'we've murdered someone', and requested to borrow her car. It was necessary for the two of you to drive Soccio to work before taking her car, and that event is captured on part of the CCTV footage that was played during the trial to the jury. In the course of the drive, Soccio said that you, John Ryan, told her 'I stabbed someone twice and choked them'.
24 Later in the morning, the three of you went to an area near Baynton and destroyed Rosa Franze's car by fire.
25 Later that day you, Lindholm, and you, Trabert, were arrested in the Toyota Hilux after a pursuit in Brunswick West. You were found in a drain up to your necks in water by police dogs and were arrested. You, John Ryan, were arrested on Wednesday 18 December.
26 Each of you made records of interview after your arrest. It is perhaps sufficient to say that what each of you said in those records of interview was inconsistent with your plea of guilty, Robyn Lindholm, and the verdicts of guilty that the jury delivered in relation to you, Torsten Trabert and John Ryan.
27 However, it should be acknowledged that it was after being assisted by you, Torsten Trabert, that police located the body of Wayne Amey on Wednesday 18 December 2013, wedged between two granite boulders and covered by sheets and rubble, his limbs hog tied with rope.
28 The post-mortem performed the following day revealed, among other things, four stab wounds to the chest and a number of blunt force injuries to the head. There were fractured ribs which occurred while the deceased was still alive. Death occurred as a result of those injuries. The stab wounds and fractured ribs may have been associated with a collapsed lung.
29 In examining the circumstances, I am satisfied that the object of the joint criminal enterprise was that Wayne Amey be killed, not simply be really seriously injured, and that when each of you entered into the joint criminal enterprise, that was your intention.
30 On behalf of each you, counsel have argued that the limit of the intent that I could find beyond reasonable doubt was an intention to cause really serious injury.
31 Mr Kelly on behalf of you, Robyn Lindholm, submitted that your state of mind was that Mr Amey was going to be 'flogged', rather than killed. He urged me not to accept the evidence of Elliot and Ardley, and suggested that you were consuming a large amount of methylamphetamine. However, I am satisfied that you made a request of both men to kill the deceased, and that is what you intended would happen.
32 Mr Tehan, on behalf of you, Torsten Trabert, also submitted that I could not conclude that you intended to kill Amey as opposed to really seriously injure him. He submitted that an intention only to cause really serious injury seemed to be consistent with the intercepted phone calls between Elliot and Lindholm, for which you were also present.
33 Mr Hallowes, on behalf of you, John Ryan, argued that one thing I should pay attention to is that you came to the arrangement late in the piece. He urged me to conclude that you, Trabert, and you, Ryan, did not go further than Lindholm's original intent. I accept that submission, but I am satisfied that Lindholm's intention at the time the joint criminal enterprise was entered into was an intention that Amey be killed.
34 It is implicit in counsel's submissions that the death of Mr Amey must have gone beyond what was intended by any of the three of you. As I have said, I reject that submission. The reasons for that conclusion can be summarised to the following:
35 Dealing separately with the intercepted prison calls between you, Robyn Lindholm, and Elliott for which you, Tortsen Trabert, were present, I note that in the call on 21 November 2013, you, Lindholm, told Elliott, in relation to the farm, that Amey was taking you to court on 11 December, but 'Toots is going to go around and visit him'. You, Trabert, said 'I am planning that he doesn't make it'. On 10 December 2013, you, Trabert, tell Elliott that 'the deed gonna be with Robyn that's today'. In the later calls, there is discussion about Amey not having gone to court and expressing feigned concern that he is all right when it was well known he was not. The phone calls do not in any sense demonstrate an intention on the part of you, Lindholm, or you, Trabert, which is less than an intention to kill Wayne Amey.
36 I am therefore satisfied beyond reasonable doubt that you, Robyn Lindholm, set out to find someone who would murder Wayne Amey on your behalf. Eventually you, Torsten Trabert, became more than willing to carry out that task and you, John Ryan, joined the enterprise. In my opinion, each of you intended that Amey be killed, rather than really seriously injured, and I sentence each of you on that basis.
37 Six victim impact statements were offered in evidence during the course of the plea proceedings, and they were from the following:
As is always the case in such cases, the victim impact statements highlight the rippling tragedy that the three of you have caused in murdering Wayne Amey. He is deceased, but as we have seen listening to those statements, his family and friends now must carry a burden of loss, probably for the rest of their lives. The circumstances in which you killed Wayne Amey and the way these innocent people imagine how that must have occurred is a source of horror for them.
38 As always, the killing itself was so futile and unnecessary, and the impact it had on these people so easily avoidable. I have taken these statements into account in fixing the sentence I will impose on each of you.
39 Robyn Lindholm, you are 42 years of age. Your parents are both still alive and I am told by Mr Kelly that they both still support you and visit you in custody.
40 You had a good secondary education and on completion you began a science degree at Monash University. You did not complete the first year of study and instead moved to a TAFE college to study animal husbandry. Your two sporting interests were ice skating, in which you achieved some competitive success, and horses and horse riding.
41 In your working life you were employed by car dealerships, Crown casino and in some part time work as a stripper. In 1993 at the age of 20 you purchased a 73 acre property at Glenhope to further your interest in horses. The property was purchased with the help of a considerable mortgage.
42 You had a series of relationships, none of which succeeded, and are not particularly relevant for my purposes. However, they included a relationship with Mr George Teazis, who is now deceased. That relationship broke down in part due to the use of drugs.
43 You apparently met Wayne Amey in 2003 and the relationship with him began more intensively in 2005 when you commenced lived with him. He provided you with work at his gym. The idea of buying another rural property between you and Amey begun in around 2006, and the ten acre property at Bittern was acquired before you were able to sell your farm at Glenhope, which you did at a very poor price. The property at Bittern later become central to the hostility you had toward Wayne Amey.
44 Mr Kelly detailed the difficulties that arose in your relationship with Wayne Amey, including some of your grievances about his conduct. No doubt there is more than one side to the debate about what went wrong and why you felt the hostility you did toward him.
45 However, those events having occurred, you formed several other relationships beyond Mr Amey and managed to maintain your hostility toward him, mainly in connection with the property dispute. By 2011, the relationship with Amey was over, and in 2012 you formed a relationship with Kyle Elliott and then later with Aaron Ardley, which similarly turned violent. It is asserted that both you and he were using methylamphetamine frequently. In late 2012, Mr Amey obtained intervention orders which prevented you from residing at the Bittern property.
46 In mid-2013, your relationship with Kyle Elliott resumed after his release from custody. Nonetheless, your hostility toward Wayne Amey continued and the issue of the Bittern property was at the time before the Federal Magistrates Court.
47 However, Mr Elliott went back into custody and you began a relationship with the accused man, Torsten Trabert, and commenced residing with him at the flat in Eric Street in Preston.
48 It hardly needs to be stated that your grievances with Wayne Amey may in some sense explain your anger, but can in no way whatsoever justify the bizarre action you ultimately decided to take. Your desire that he be killed persisted over a significant period and is to be utterly condemned.
49 As to your more recent circumstances, it would seem that you have made the best of your time in custody. You are completing a horticulture course. You are supported by visits from your family.
50 On your behalf, Mr Kelly submitted that I should conclude that your prospects of rehabilitation were reasonable. Bearing in mind your activities since you have been in custody, coupled with the continuing support you have received from your parents, that is a reasonable conclusion.
51 At the conclusion of pre-trial argument you indicated that you would plead guilty. Mr Kelly submitted that your plea was of significant utilitarian value and I am of course willing to accept that.
52 The more difficult question is whether that plea represents any form of remorse or regret. The prosecutor has submitted that the evidence does not support me concluding that you are remorseful. I am sure you are ashamed and embarrassed, but the real question is whether you genuinely regret what you have done. I frankly do not see any sign of that. I am sure you regret the circumstances you are now in, but I doubt very much whether your regret is for the wrong you have committed.
53 Robyn Lindholm, you have some prior criminal history. All offences were dealt with in the Magistrates Court and involved theft, going equipped to steal, criminal damage, alcohol and drug offences. Relative to this matter, they are not significant matters and I treat them accordingly.
54 Torsten Trabert, you are now aged 46 years, having been born of parents who came to Australia from Germany in 1970. You have five siblings. Your three sisters have been, and remain, supportive of you. You grew up in the Reservoir/Preston area with your secondary education ending at year 10 level. Your working life involved a variety of jobs, but much of your working life has been involved with driving heavy trucks. You married in 1999 and there are two children of the marriage, now aged 12 and 8. You separated from your wife for a period of time between 2005 and 2007. In 2006 you were involved in a serious motor vehicle accident which stopped you from working for 18 months or so.
55 Sadly, in 2003 your mother died as the result of suicide. That event had, I am told, a significant effect on you emotionally. More recently, in 2010 you were first diagnosed with depression and in 2012 you attempted suicide. By this stage your life was in turmoil. You were separated from your family. At around this time, you meet Robyn Lindholm, and you and she lived for a time in the flat at Eric Street, Preston. As I have said, you and she were both using methylamphetamine.
56 Following your arrest you have been in custody. During that time you have been in protection for some of the time and were locked down during the prison riots. Your IQ is apparently low and you have cognitive deficiency caused by the consumption of drugs, in particular methylamphetamine. I am satisfied that your depressive condition preceded your offending and I am prepared to accept that condition will add to the difficulties you face in serving your sentence.
57 Your criminal history is restricted to one conviction for dishonestly undertake and retain stolen goods for which you were fined with conviction. The offence actually occurred in 2012. As I indicated to Mr Tehan during the his plea on your behalf, that conviction is of no significance in the sentence that I will shortly impose on you.
58 John Ryan, you were born on 27 April 1977 and are now 38 years of age. Your family have supported you during this trial. From what I am told, they are a law-abiding and hard-working family. You are one of five siblings. You grew up in the northern suburbs of Melbourne. Your education finished at year 10. You have worked in manual labouring jobs and your first conviction for offences occurred when you were 17 years of age.
59 Your involvement in criminal activity is attributed by your counsel to your use of drugs.
60 You formed a relationship with a lady named Kirsty Robinson and there are two children as a result who are now aged 15 and 13 years. You and Ms Robinson moved to Queensland, but the relocation proved unsuccessful and subsequently the relationship failed. Whilst in Queensland, you began your use of methylamphetamine and moved back to Melbourne. You have no relationship with your two children. On returning to Melbourne, you formed another relationship with Melissa Penner, which produced another child. You were living at Kilmore. That relationship was troubled and led to you committing a number of the family violence offences of which you have been convicted and which I will shortly come to.
61 After that relationship you came back to Melbourne, lived at Meadow Heights and engaged in some paid work. However, you descended into drug use and ultimately became involved in these matters, despite lacking any particular motivation to do harm to Wayne Amey.
62 Since being in custody you have had a difficult time, mainly due to the manner in which you and Trabert conducted the trial. In addition, there are difficulties in visits by your parents and it has been some time since you saw them, though there is some phone contact.
63 John Ryan, your criminal history began in 1995 with offences including assault, resulting in a fine without conviction. From 2010 until 2012 your convictions were concerned with family violence matters, which were all serious and involved your relationship with Ms Melissa Penner with whom you have a child. These offences include not only breaches of intervention orders but wilful damage, assault, making threats to kill and failures to answer bail. They are very serious and Mr Hallowes on your behalf did not suggest otherwise.
64 The result of your convictions on 12 December 2011 and 27 March 2012 for making threats to kill and the sentences of imprisonment that were imposed is that pursuant to s 6D and 6F of the Sentencing Act you are now to be sentenced as a serious violent offender, though the prosecutor did not submit that should result in the imposition of a disproportionately high sentence and I do not propose to impose one.
65 Your future looks difficult. You will spend considerable time in prison and on your release you will be a much older man. Age itself may cause change in you, but as your counsel accepted, much will depend on your ability to avoid the consumption of drugs and make something of your life when you are released. Your parents' support is, I suspect, one of your most valuable assets at present, but that has its limits. Your willingness to be involved in this appalling crime leaves me with little optimism, but ultimately it is up to you. Whether you can make something positive of your time in custody and beyond is a very significant challenge.
66 As I began by saying, this is very serious offending. Because of how carefully planned and callously the crime was carried out and then sought to be concealed by various elaborate measures, including the crude dumping of the deceased's body, the sentencing considerations of general and specific deterrence as well as denunciation are of particular significance.
67 You, Robyn Lindholm, are entitled to a recognition of your plea of guilty in the sentence I impose on you, though, as I have said, I do not accept that you are remorseful for what you have done.
68 You, Torsten Trabert, are entitled to have your lack of relevant prior convictions recognised in the sentence I impose on you, together with your assistance to the police in locating the body of the deceased, albeit that I doubt you offered that assistance out of a sense of remorse as opposed to the hope that you would gain some tangible sentencing benefit from doing so.
69 You, John Ryan, have a more serious criminal history and, as I have already noted, you must be sentenced as a serious violent offender. I direct that that be entered into the records of the Court. The consequence of sentencing you as a serious offender is that the sentencing consideration of protection of the community achieves a greater significance.
70 The result will be that for the murder of Wayne Amey, you, Robyn Jane Lindholm, will be sentenced to be imprisoned for a period of 25 years. I direct that you serve a period of 21 years before you are eligible to apply for release on parole. I declare that pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charge of murder I would have sentenced you to a period of 28 years imprisonment and directed that you serve a period of 24 years before you became eligible to apply for release on parole.
71 I declare that your pre-sentence detention is 644 days including this day, and direct that period be reckoned as time already served and such determination by entered into the records of the Court.
72 For the murder of Wayne Amey, you, Torsten Trabert, will be sentenced to be imprisoned for a period of 28 years. I direct that you serve a period of 23 years before you are eligible to apply for release on parole. I declare that your pre-sentence detention is 734 days including this day, and direct that period be reckoned as time already served and such determination by entered into the records of the Court.
73 For the murder of Wayne Amey, you, John Anthony Ryan, will be sentenced to be imprisoned for a period of 31 years. I direct that you serve a period of 26 years before you are eligible to apply for release on parole. I declare that your pre-sentence detention is 729 days including this day, and direct that period be reckoned as time already served and such determination be entered into the records of the Court.
The Queen
Lindholm, Trabert and Ryan [2015] VSC 739