The Queen v Lowe [2014] VSC 543

Supreme Court of Victoria|2014-10-27|Before: Macaulay J

CRIMINAL LAW - Sentence - Trafficking a drug of dependence in a large commercial quantity - Plea of guilty - Member of drug syndicate - Production of methylamphetamine and ephedrine at numerous locations - Principle of parity - Nature and gravity of offending.

CRIMINAL LAW - Sentence - Possession of firearms - Plea of guilty - Firearms Act 1996 s 145.

CRIMINAL LAW - Sentence - Murder - Kidnapping - Plea of not guilty - Joint criminal enterprise - Verdict of guilty of murder - Acquitted of kidnapping charge - Accused not necessarily present at killing - No allowance for delay as mitigatory factor - Good prospects of rehabilitation.

1 Matthew Lowe, on 31 October 2013, you were found guilty by a jury in this court of the murder of Yengo Faugere on or about 20 October 2011.[1] You were acquitted by the jury of a charge of kidnapping Faugere. On 3 October 2014, you pleaded guilty to the following charges: one charge of trafficking in a drug of dependence in not less than a large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981;[2] one charge of possessing an unregistered general category handgun contrary to s 7B(1) of the Firearms Act 1996;[3] two charges of possessing an unregistered category A longarm and one charge of possessing an unregistered category B longarm, each contrary to s 6A(1) of the Firearms Act.[4]

2 You pleaded not guilty to a further charge of possessing an unregistered general category handgun without a licence contrary to s 7B(1) of the Firearms Act.[5] No evidence was led by the prosecution in relation to that last mentioned charge so, pursuant to s 241 of the Criminal Procedure Act 2009, I directed that an entry of not guilty be made on the record in respect of that charge.

3 It is now my responsibility to sentence you for those offences for which you have either pleaded guilty or been found guilty.

4 The maximum penalty for the offence of murder is life imprisonment. Trafficking in a drug of dependence in not less than a large commercial quantity carries a maximum penalty of life imprisonment and, in addition to imprisonment, a penalty of not more than 5,000 penalty units. An offence under s 7B(1) of the Firearms Act carries a maximum penalty of seven years' imprisonment, or 600 penalty units for a first offence. An offence under s 6A(1) of the Firearms Act carries a maximum penalty of two years' imprisonment, or 120 penalty units for a first offence.

5 The jury found you guilty of murder on the basis that you participated in a joint criminal enterprise with Brok Seckold, your cousin Peter Tiberi and unidentified others to kill Faugere or cause him really serious injury. The drug trafficking charge arises from your participation in a trafficking ring, which included Seckold, Daniel Peter Martin, Scott Frankland, the deceased man Faugere and Kris Kaje.

6 In separate proceedings, Seckold,[6] Martin,[7] Kaje[8] and Frankland[9] all pleaded guilty to trafficking a commercial quantity of a drug of dependence - in Seckold's case, along with firearms charges - and have been sentenced accordingly. In addition, Seckold was found guilty by a jury in a separate proceeding for the kidnap and murder of Faugere, and he has been sentenced for those crimes, along with the drug and firearms charges mentioned above. Tiberi pleaded guilty to the kidnap of Faugere and to having intentionally caused him serious injury, for which he has also been sentenced in a separate proceeding. [10]

7 In all cases, those other offenders were sentenced by Lasry J of this court.

8 Because all other offenders have been sentenced, one of the key issues that arises for me in sentencing you is the extent to which the principle of parity - that is, that like should be treated alike[11] should guide the appropriate sentence to be given to you. Other issues that emerged from submissions or which otherwise arise in sentencing you are the following:

the nature and gravity of the offences;
your culpability and degree of responsibility for each of the offences having regard, amongst other things, to the role you played in them;
the impact of your crime upon victims;
your plea of guilty in relation to the drug and firearms charges and other factors personal to you; and
the identification of the applicable sentencing purposes to which I should have regard.[12]

9 In outlining the events and circumstances surrounding your offending it will be necessary that I broaden the description to encompass some events and circumstances in which you were not involved. That is so to better understand your role, relative to others, when it comes to the consideration of parity.

10 The charge of trafficking in a drug of dependence relates to your involvement in a drug syndicate established to manufacture and/or sell methylamphetamine (known colloquially as 'ice') and ephedrine (a precursor chemical for the manufacture of ice). It was alleged, and you accept, that your involvement spanned between 25 October 2011 and 7 February 2012 (the date of your arrest). Throughout the time of your involvement in the drug ring, the others who were also involved were Seckold, Martin and Kaje. However, Seckold's involvement in the group dated back to midMay 2011, and Martin and Kaje's involvement dated back to midJune 2011. Frankland, referred to above, had also been involved between May and early July 2011. Prior to your involvement in the syndicate, the deceased man, Faugere, had also been a participant in the drug group. Like Frankland, Faugere's involvement also ceased around 8 July 2011 in circumstances described below.

11 Each member of the drug group had a role. Seckold was the leader and organiser. He also financed the activities and recruited members to the group. Martin, a science graduate from Melbourne University, was the principal manufacturer ('cook') of the drugs and taught others, along with yourself, techniques for making methylamphetamine. Until Kaje took up the role, Frankland's role was essentially to do the running around and manual labour required by Seckold. That role included collecting chemicals, glassware and other equipment which had been ordered from overseas as they arrived, usually under a false name; arranging the renting of suitable properties for drug laboratory use; purchasing mobile phones for the group to use; and so on. In addition, Frankland was also Seckold's personal driver and he instructed and supervised Kaje in his role. When he was part of the team, Faugere was actively involved in the cooking process.

12 Before your involvement, the group used several drug laboratories which were described by Lasry J in sentencing Seckold. Both the Crown and your legal team each relied upon the facts as described by Lasry J in relation to the other participants for comparative purposes. For the purposes of context, I will set out what his Honour said had occurred up until around the time when you became involved. Speaking to Seckold, his Honour said:

In March 2011 you invited Martin to your home in Kew and showed him 10 litres of phenylacetone which is a precursor chemical used to make methylamphetamine. You wanted Martin to help you find a technique for making methylamphetamine from phenylacetone.

Martin eventually discovered a successful technique for doing that and he taught the technique to you. You, in turn, taught the deceased man Yengo Faugere. At your instigation, Faugere leased premises at 3/51 Rochester Road, Canterbury using a false name and by May 2011 a clandestine laboratory at those premises was under way. That laboratory operated for two to three months producing methylamphetamine.

By chance, police discovered this laboratory on 8 July 2011 when local police went to the premises with a real estate agent who was concerned about unpaid rent.

When they examined the premises, among other things, police located 14 glass jars which contained liquid methylamphetamine. It was later found on analysis that the liquid contained methylamphetamine in a total quantity of 976.8 grams. A large commercial quantity of methylamphetamine is 750 grams pure.

...

The discovery of this laboratory apparently received significant publicity which you saw. As a result of the police involvement, you decided that Scott Frankland should go overseas because it was thought that his fingerprints would be in the flat as he had not worn gloves on at least one occasion. He went to the Philippines and whilst there you arranged for $58,617 to be transferred to him via Western Union money transfers. ...

Before police discovered the Canterbury laboratory, you apparently already suspected that the deceased Faugere had been stealing some precursor chemicals from you and making his own methylamphetamine. Once the Canterbury laboratory had been discovered you concluded, wrongly, that Faugere had stolen the jars of liquid methylamphetamine that had been successfully manufactured at that laboratory. As I understand it that was because you did not see those jars in the media publicity about the discovery. You also concluded that having done that, that is to steal the chemicals, Faugere then informed the police about the laboratory. That reasoning formed a significant part of the motive you had to murder him and I will deal with that in due course.

You were, however, undeterred by the discovery of the Canterbury laboratory by police and you wanted to recommence manufacturing methylamphetamine. The difficulty was that you only had a small amount of phenylacetone left. You got Martin to experiment making ephedrine from benzaldehyde with the intention of then using the ephedrine to make methylamphetamine.

Your plan was to establish another laboratory and in relation to your accomplice Kris Kaje you arranged for him to lease virtual offices under a false name so that he could arrange for precursor chemicals and glassware to be delivered to those addresses without the items being able to be traced back to your names. You and Martin had a machine for making false identification papers and they were used to produce false driver's licences, bank statements, as well as references to allow Kaje to lease properties and virtual offices under false names.

With your approval, Kaje located premises at unit 2/111 Barkers Road, Kew and entered into a lease for those premises using a false name on 16 June 2011. A clandestine laboratory was then established at that address.

Once the Kew laboratory was established, Martin continued to try to make ephedrine using benzaldehyde but he was only able to make a small amount of methylamphetamine.

...

The next venue for your enterprise was at 3/11 Childer Street, Reservoir and when the police subsequently entered those premises they again found a large and sophisticated clandestine laboratory which was ready for use. There was also a large quantity of precursor chemicals in the flat. ...[13]

13 You commenced your involvement on about 25 October 2011 by assisting in the removal of items from the laboratory operating at 2/111 Barkers Road, Kew, to the house at 3/11 Chaleyer Street, Reservoir, where Martin was living. At that address, the group, including Seckold, Kaje, Martin and yourself, set about making methylamphetamine. By that time, you were living with Seckold at premises at 209/55 Cumberland Avenue, Maribyrnong. Like Frankland had done, one of your roles was to be Seckold's driver. You also supervised Kaje in some of his activities and you were taught how to participate in the chemical processes for making the drugs.

14 It was at the laboratory at Reservoir that Martin discovered a technique to make ephedrine. Towards the end of 2011, he had some success with that method and Seckold took 7 grams of the product to Newcastle to see if his contacts were happy with it. It was Seckold's intention at that time to make ephedrine to sell to his Newcastle contacts so they could make methylamphetamine.

15 Unbeknown to the group, the police had installed surveillance devices at the Reservoir property. They observed a large and sophisticated drugmaking laboratory in operation. You were heard to be discussing the manufacturing process with Martin. In addition, you discussed flying a plane to Sydney, that being a better option than travelling on a domestic flight because you would not be searched.

16 Part of your role in the enterprise was as a pilot. For that purpose, you had undertaken training to fly light aircraft. You made at least one flight with Seckold on 31 January 2012 to Newcastle to sell a kilogram of ephedrine which had been manufactured at a laboratory established at a property at St Leonards (discussed further below).

17 While still at the Reservoir premises, on 10 January 2012, Seckold, Martin and yourself were heard discussing 20 kilograms of methylamine, a precursor chemical that can be used in the production of methylamphetamine. You were also heard to discuss the purchase of mobile phones and the purchase of a machine, that would cost $7,000, to be used to produce false identification. You discussed moving everything to St Leonards during the week and being able to cook for eight days straight. Seckold talked about making 3 to 4 kilograms at the new laboratory, selling that product whilst then making more. He told you that he hoped to walk away with approximately $10 million.

18 After Christmas 2011, Martin made a further 100 grams of ephedrine with the intention that Seckold take it to Newcastle. On that occasion it was of poorer quality and it was not successful. Nevertheless, Martin was able to make some methylamphetamine from smaller amounts of chemical Seckold had been able to obtain, and proceeds from its sale financed further experiments to produce the ephedrine, and the establishment of the new laboratory on the Bellarine Peninsula at St Leonards. The move to those premises did not occur until 11 January 2012.

19 On 11 January 2012, you and Kaje removed items from the Reservoir premises and loaded them on to a truck to take them to the new premises at Manifold Road, St Leonards. You and Kaje discussed certain equipment which had been paid for which was coming through customs. You told Kaje that the heating mantles which were being held by customs were illegal and had to be labelled as soap makers destined for a company called 'Soap Dreams'.

20 Further surveillance devices were installed at St Leonards. Police observed a further large and sophisticated clandestine laboratory being set up together with large quantities of chemicals. Amongst other things, you were seen covering the windows in the premises and cleaning glassware and generally being present for extended periods of time while chemical processes were being undertaken. You participated in discussions with Seckold and Martin about the manufacturing process and the logistics of taking product to Newcastle.

21 When police eventually executed a search warrant at the St Leonards laboratory on 7 February 2012, they located substantial quantities of chemicals and other liquids commonly used in the manufacturing of methylamphetamine. They later seized 40 litres of hypophosphorous acid that members of the team had arranged to import into Australia under a false name. Estimates have been made by the Victorian Police Forensic Science Centre that the quantities of ephedrine and pseudoephedrine found at the premises, when combined with other precursor chemicals, was sufficient to make between 250 and 400 grams of methylamphetamine. However, a little over 150 litres of benzaldehyde was also located at the St Leonards premises. If sufficient quantities of hypophosphorous acid and iodine were available, that chemical was estimated to be capable of producing anywhere between 25 and 150 kilograms of pseudoephedrine/ephedrine which, in turn, was capable of producing in the order of 19 to 112 kilograms of methylamphetamine. As it was, the quantities of hypophosphorous acid and iodine found at the premises at the time of execution of the search warrant would have been capable of manufacturing approximately 6 kilograms of methylamphetamine. You did not dispute any of these estimates.

22 I have described these activities in some detail because they illustrate the scale of the enterprise and the scope and duration of your personal involvement. Your particular role within the group was described variously as being Seckold's 'righthand man' or his 'perfect sidekick'. Whether or not these descriptions were apt or accurate, there is no doubt that you played an indispensable role in the team.

23 After you were arrested, police located numerous firearms and a quantity of ammunition from the premises in Maribyrnong, which you shared with Seckold. Found in the premises were a Lorcin semiautomatic handgun; a 0.50 calibre black powder Italian Cabela rifle; 0.303 British calibre Lithgow brand rifle; and a Deer brand air rifle. Also found was a 0.32 calibre Browning semiautomatic pistol believed to be the gun Seckold used to kill Faugere (as described below). You have not been convicted of possession of that particular weapon.

24 In any proceeding for possession of firearms under the Firearms Act, evidence that a person occupies land or premises on which the firearm is found is, in the absence of evidence to the contrary, proof that the person possessed the firearm.[14] You did not offer any evidence to the contrary. Your counsel urged me to accept that 'in reality' the firearms were Seckold's. Given that you have pleaded guilty to the charges, it is not possible for me to accede to some submission that, in effect, is contradicted by your plea. There is no question, therefore, that you were in possession of each of the firearms the subject of the charges to which you have pleaded guilty.

25 On 7 February 2012, during the execution of the search warrant by the police at the St Leonards property, the partial remains of Yengo Faugere were found at the property, in a barrel, on the back of the white Nissan Navara utility parked in a padlocked garage.

26 As stated by Lasry J's when sentencing Seckold, quoted earlier, the Canterbury laboratory at which Faugere had been working was discovered by the police in July 2011 and Seckold formed the view that Faugere had stolen chemicals and perhaps even tipped off the police about it. Lasry J concluded that, after the Canterbury premises were raided by police, Seckold embarked on a plan to kill Faugere and commenced to make preparations to do so. His Honour concluded that various purchases made on Seckold's behalf by Tiberi from a Bunnings store on 17 October 2011 signified the commencement of steps taken toward the kidnap and murder of Faugere.

27 The Crown case against you in respect of murder was that you were a member of a joint criminal enterprise to kidnap and murder Yengo Faugere. However, as already mentioned, the jury was not persuaded that you were involved in any kidnap. The jury's finding on the murder charge meant it was satisfied beyond reasonable doubt that:

(a) you agreed with others to kill or cause really serious injury to Yengo Faugere,

(b) you participated in the enterprise to do so in some way;

(c) in accordance with that agreement, parties to it did kill Yengo Faugere, intending to do so or at least cause him really serious injury without any lawful justification; and

(d) when you entered the agreement you intended that he be killed or that really serious injury was caused to him.

28 Recognising that the jury found that you had that state of mind at the time of entering that agreement with Seckold and others, I will now summarise the acts in which you participated.

29 On 17 October 2011, you purchased the white 1992 Nissan Navara utility for $1,500 cash from a couple in Seymour, producing a fake New South Wales drivers licence to do so. The next day, along with Tiberi, you rented a white 2010 Toyota HiAce van from a rental company in Moonee Ponds. Unbeknown to you or Tiberi, the HiAce was fitted with a GPS tracking device, used by the company to ensure it recovered its vehicles. Readings from data produced by that device later enabled the police to track where it went, and at what times, over the next several days.

30 The HiAce van made several visits to the premises at which Faugere was residing in Maribyrnong. At some time after 4.00 am on 20 October, Faugere left the Maribyrnong premises and was taken in the HiAce van out of the metropolitan area and ultimately to the Mansfield-Woods Point Road at Mansfield more than 200 kilometres away. The HiAce van and the Nissan Navara you had purchased were observed parked together for several hours on the morning of 20 October on the Mansfield-Woods Point Road.

31 It was the Crown case that Faugere was murdered in that vicinity.

32 The HiAce van left the Mansfield area at about 2.40 pm and returned to Melbourne, arriving in the late afternoon in the vicinity of the apartment where you and Seckold lived together. It was then driven through the Melbourne CBD and was parked in the vicinity of Tiberi's home in Glen Iris.

33 The following afternoon it was taken from near Tiberi's house to a car wash in Glen Iris and was washed inside and out. Later in the day, it was parked adjacent to the Target department store in Camberwell. Receipt records from the Target store, later found in the Nissan Navara, showed that between 6.10 pm and 6.52 pm on that afternoon members of the Seckold crew purchased clothing and other items to the value of $487: enough for several people.

34 Thereafter, CityLink records revealed that the HiAce van and your black BMW passed through various gantries on the CityLink tollway (in convoy) between Camberwell and Racecourse Road, Flemington. The HiAce van was ultimately parked in the street adjacent to yours and Seckold's apartment in Cumberland Drive, Maribyrnong soon after exiting the tollway at Flemington.

35 That same evening, after the HiAce van was washed and returned to the apartment where you were living with Seckold, a number of telephone calls were made to a man who had advertised the sale of a boat. At about 10.30 pm that night, a number of males arrived at the man's residence in Caroline Springs. Two of them negotiated the purchase of a boat for $7,500 in cash. A handwritten receipt signed by the seller was later found in the Nissan Navara. Importantly, an envelope containing a handwritten note of the seller's name and address, also discovered in the Nissan Navara, appeared to have been written by you. It was the Crown case that the boat was purchased for use in the disposal of Faugere's body after it had been brought back from the Mansfield area.

36 When the partial remains of Faugere's body were found in the Nissan Navara at the St Leonards property in February 2012, there was evidence that his left and right wrists had been bound. Striations detected on sections of bone fragments found in the barrel were consistent with the cutting up of his body. The evidence also indicated it had been partially burnt.

37 Forensic evidence indicated the very high probability that it was your DNA that was found on a number of clothing items located in the Nissan Navara which held Faugere's remains, including items purchased from Target on 21 October 2011. It was the Crown case that the clothing purchased at Target had been purchased for those involved in the cleanup operation to wear after the killing of Faugere.

38 When arrested, you made a nocomment interview and you gave no evidence at the trial.

39 To find you guilty of murder by joint criminal enterprise, I believe the jury was at least satisfied -

(a) that you purchased the Nissan Navara and assisted in the renting of the HiAce van as steps in the preparation for killing or causing really serious injury to Yengo Faugere;

(b) that you were present while the HiAce van was being cleaned in Camberwell after Faugere was killed and when the Target clothing was purchased; and

(c) that you were involved in the purchase of the boat on the evening of 21 October, and that the purchase of the clothing and the boat formed part of a sequence of steps taken by the team to attempt to dispose of the body of Faugere and to clean up after the event in an attempt to conceal the crime.

40 Beyond that, in terms of aggravating factors, I cannot, however, be satisfied beyond reasonable doubt that you were necessarily present at Mansfield when Faugere was killed, or that you played any part in the dismemberment of his body. Although those inferences might reasonably be drawn from the evidence, they are not the only reasonable inferences which could be drawn. In the trial of Seckold, the jury had the benefit of admissions and direct evidence that Seckold shot Faugere at Mansfield. Tiberi himself pleaded guilty to having intentionally caused serious injury to Faugere. There was no equivalent evidence in relation to you. Although the Crown urged the jury to find that you had been involved in Faugere's kidnapping and were present at Mansfield when he was killed, the jury acquitted you of kidnapping and the prosecution case for murder did not require the jury to find beyond reasonable doubt that either of those things were true. Rather, the Crown's case for murder relied upon the evidence of your participation in the acts that I have described before and after the Mansfield event as proof of your involvement in the joint criminal enterprise.

41 In summary, I will sentence you on the basis that, pursuant to the agreement and with the state of mind I described, you were involved in the preparatory acts of purchasing the Nissan, hiring the HiAce and, later, assisting in the cleanup and attempted disposition of Faugere's body in the ways I have described. But I do not sentence you on the basis that you were involved in the forcible removal of Faugere from his premises, nor that you were present for his actual killing or the dismemberment of his body.

42 Much analysis was undertaken by Mr Sheales, counsel on your behalf, of the relative roles of the participants in the drug manufacturing enterprise and in relation to the murder.

43 In relation to the drug operation, Seckold was the financier, organiser, leader and recruiter for the whole period from May 2011 through to February 2012. Martin was the chemist with the scientific know-how who, with Seckold, was also involved in the group for about the same period of time. Kaje, likewise, was involved for most of the time from May 2011 to February 2012 in an administrative assistant capacity as I have already described. Frankland personally assisted Seckold and taught Kaje the administrative work, but his involvement was for a period of about two months only, finishing around early/midJuly 2011.

44 For your part, you were a close associate of Seckold, his driver and you actively assisted in numerous facets of the drug operation from 25 October 2011 and onwards. Unlike the other three who had involvement at the Canterbury and Kew laboratories, your involvement was confined to the Reservoir and St Leonards laboratories. You engaged in the cooking activity and general physical work. Your unique contribution was that of pilot.

45 Undoubtedly, Seckold played the principal role however you were evidently very close to him, living with him for a period of four or five months. In terms of duration and the number of laboratories in which you participated, both yourself and Frankland played a lesser role than Kaje and Martin who were, like Seckold, involved for the whole period. However, as already indicated, each of you performed specialist functions.

46 In respect of the murder of Faugere, you plainly had a lesser role than that of Seckold. Being the financier and organiser of the drug enterprise, Seckold was principally motivated by a sense of revenge and punishment against Faugere. You were not part of the group when the Canterbury lab was raided. In my view, you cannot be attributed with the same motivation that Seckold had. Further, not being an active participant in the drug trafficking group at that stage, it is difficult to attribute to you the motivation of protecting a drug enterprise when participating in the joint enterprise to kill Faugere.

47 I conclude that you participated in the murder of Faugere out of some sense of loyalty to or control by Seckold. Nevertheless, your involvement was considered, planned and undertaken with quite a degree of organisation. It spanned many days - probably the whole of the week commencing Monday 17 October 2011.

48 Further, it cannot be doubted that you knew what had become of Faugere and how his body had been treated, even though you may not have been involved in its dismemberment. Lasry J said of the crime, when considering the full, horrendous details, '[m]ore serious cases of murder are few and far between'.[15] Of course, that comment was made in the context of Seckold's involvement, taking account of his particular motivation and his involvement in the direct killing of Faugere. Nevertheless, you are to be sentenced for your involvement in the joint criminal enterprise to commit the same murder. While some account should be taken of your lesser role and involvement, when you entered this enterprise you joined yourself with others and became jointly responsible for the consequences that followed.

49 Mr Sheales rightly relied upon the principle that where two or more offenders are sentenced for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in sentences imposed should be explained.[16]

50 In this case, the application of that principle arguably requires a consideration of your culpability and personal factors against those of Seckold, Martin, Kaje and Frankland, in relation to the trafficking a drug of dependence charge, and against that of Seckold in relation to the murder charge.

51 The sentences imposed on your co-offenders are set out in the following tables. The first table compares sentences given in respect of the charge of trafficking a commercial quantity of a drug of dependence. The second compares the sentences given to Seckold and Tiberi, incorporating Seckold's sentences on the drugs and firearms charges.

52 Although the tables differentiate charges and pleas, they do not depict differences in roles, activity and other relevant circumstances as previously noted or as revealed in Lasry J's sentencing remarks for each other offender. At the risk of some repetition, they are in summary:

Seckold was the principal, Martin the chemist, Frankland the driver and supervisory assistant, and Kaje an assistant. Your role could be compared to Frankland, with the addition of you being the pilot.
Seckold and Martin were involved from the outset, Kaje for most of the time, and Frankland for only about 2 months. You were involved for about 3½ months.
Seckold and Martin were involved in all four clandestine laboratories (Canterbury, Kew, Reservoir and St Leonards) Kaje in three, and Frankland in only one. You were involved in the last two.
Martin gave a high degree of cooperation to the Crown in making a statement and undertaking to give evidence, Kaje and Frankland also provided cooperation but of less value and degree than Martin, and Seckold gave none. Neither did you.
Other than Seckold, all were relatively young, in their midtwenties, and were serious drug users. Seckold was a little older with no prominent drug use.
Other than Frankland, noone had any previous convictions. Frankland's seemed to be mostly related to charges that had arisen since his association with Seckold.

53 While there are numerous points of similarity and dissimilarity, Lasry J imposed exactly the same sentence on all offenders other than Seckold. As pointed out by the Crown, the difficulty in reliably comparing sentences is not only because of the dissimilarities as listed above, but also because it is difficult to quantify the discount given to the offenders other than Seckold for their respective degrees of cooperation.[17] Although Lasry J quantified the allowance for the guilty pleas of Martin et al as 2½ years, his Honour recognised the artificiality in divorcing that allowance from the allowance also given for assisting law enforcement authorities.[18] So, ultimately, the four year difference in sentences, after the pleas of guilty were taken into account, given to Seckold and the sentences given to the others must take account of the more serious role of Seckold than the others, on the one hand, and, on the other, the cooperation given by the other three offenders.

54 You are similarly entitled to be compared more favourably than Seckold in terms of role, but, unlike the other three, you are not entitled to any favour for having assisted authorities. In my view, given the close assistance you gave to Seckold as his personal driver and supervisory assistant and the strategic importance of your role as pilot, I consider your role to be no less significant than that of Martin's in the enterprise although more significant than that of Frankland and Kaje. But, although your sentence will reflect an allowance for your guilty plea, your relative youth and your prospects of rehabilitation (factors you share with the other three), it will not reflect any reduction for assistance to authorities.

55 Turning to the count of murder, Mr Sheales had an elaborate argument to the effect that the ratio of Seckold's sentence for murder to your sentence for murder should parallel the ratio of Seckold's sentence for kidnap to Tiberi's sentence for kidnap. He sought to justify that submission by saying that the element that must account for the significant difference in the sentences imposed on Seckold and Tiberi for kidnapping is the same element that, in effect, distinguishes Seckold and yourself in respect of the charge of murder. That feature, he argued, was the difference in the roles you all played.

56 Whereas it might be assumed, Mr Sheales submitted, that Seckold and Tiberi each joined in performing the same essential acts in connection with the kidnapping, it was really only Seckold who was motivated for revenge and protection of the drug business and he was the organiser, financier and the recruiter. Tiberi lacked those particular aggravating characteristics. In the same way, he argued that whereas Seckold had that same motive and played that same orchestrating role in relation to the murder of Faugere, the case against you did not rely upon or establish the same characteristics.

57 I agree with the Crown submission that this analysis is, in effect, too remote to serve as an appropriate sentencing guide for you. The roles of the participants to the kidnapping cannot usefully be analogised to the roles of participants to the murder either generally, or in the particular circumstances of this case. Nor can Tiberi's and Seckold's respective sentences be readily segmented into identifiable parts that can be said to either apply or not apply, by analogy, to you in relation to the different offence of murder.

58 Having said that, I accept that, as a general reference point for thinking about the proportionality of your role, an analogy can be drawn between the role Tiberi played in the kidnapping relative to Seckold's role, and the role you played in the murder relative to Seckold's role. Beyond that, I find it more useful to concentrate on my own instinctive synthesis of the range of considerations I have already discussed and others I will mention shortly.

59 There is one further argument to specifically address. Mr Sheales argued I should recognise as a 'powerful mitigatory factor' the extent of the delay in having your trial and sentencing finalised. Delay can constitute a mitigatory factor when it can properly be described as 'inordinate' and where it is necessary to recognise the progress of rehabilitation already made and the unfairness of being left in a state of uncertainty.[19]

60 You were arrested and charged on 7 February 2012. The case against you was circumstantial and some others were not arrested until mid2012. Your committal proceeding was heard in March 2013 when you were committed to stand trial. You and Seckold were initially to be tried together, but as a result of pretrial argument heard and determined in August 2013, Seckold was tried first, in September and concluding on 10 October 2013, and you were tried between 14 and 31 October 2013.

61 Through your counsel you have steadfastly insisted on being sentenced after Seckold was sentenced. That position was also preferred by the Crown. The court was prepared to accede to this until after Easter this year when, on 22 May, it brought the parties back to court with a view to having your sentence go ahead and no longer await Seckold's sentencing. Your counsel opposed that course. The court expressed the view it was not necessary to have your sentence postponed until after Seckold's. Part of the reason given by your counsel for delaying until Seckold was sentenced was because it was said that Lasry J would be sentencing you on the drug offences. That did not ultimately eventuate. In any event, your counsel suggested that whatever further time you would be serving would not be 'dead time'. When the court said that its concern for your interests went beyond that consideration because of the uncertainty that attends delay, your position through your counsel remained that you preferred to await Seckold's sentence.

62 Seckold's sentencing hearing apparently experienced some delays after May due to issues created by Seckold himself. He was ultimately sentenced on 12 September 2014 after a sentencing hearing on 15 August 2014. Your sentence hearing followed soon thereafter.

63 I am not satisfied that there was inordinate delay in bringing your case to trial. Nor, in the circumstances, do I consider that there has been any unfairness to you associated with the delay in the sentencing process. I am unable to assess whether any weight should be given to your rehabilitation to date as there is no evidence on that question. Overall, while it is unfortunate that there has been a period approaching 2 years and 9 months between your arrest and your sentence, I do not regard it as warranting any allowance as a mitigatory factor in your favour in the circumstances I have described.

64 There is a chilling permanence about murder. That permanence is starkly illustrated by a comparison between your family and the family of Yengo Faugere. Whereas your family will be deprived of your immediate presence for the period of the sentence I will impose upon you, the mother, father, brother, cousins, family and friends of Faugere, spread across communities in Australia and internationally, will never see him again. Certainly not in this life. Dying at 22 years of age, he otherwise had a lot ahead of him. Not only have you, with others, robbed him of his expectation of life, you have robbed his family and community of friends of their enjoyment of him - forever.

65 I have read the sad and personal accounts of his mother, Florence, and his brother Emile. I have viewed the film clip of Yengo as a youngster, provided with Mrs Pinto's victim impact statement. Graphically, they underscore that expectation of life and joy that has now been permanently removed. As the law requires, I have regard to the impact of your offending on those victims.

66 You were 22 at the time of your offending and you are now 25 years of age. Like you, none of your immediate family have any criminal history. Your sister is a nurse, one brother works in a bank and another is studying pharmacy.

67 You went to school at St Simons Primary School in Rowville and then to De La Salle Secondary College in Malvern. There you had a tight network of friends.

68 You left school at the end of Year 11, in 2006. Like your father, you wished to be an electrician. You studied at Swinburne for six months completing your trade school and were then employed in May 2007 as an apprentice electrician. You moved from principal to principal throughout 2007, 2008 and 2009. Apparently you then decided you no longer wished to be an electrician.

69 But, you did not inform your family of that fact. Unbeknown to them, you had commenced taking 'party drugs' at about the age of 17 or 18 and by 20 you were taking ice. By the time of your offending you were addicted. Living in the unreal world of ice addiction you practised a terrible deception on your family. You told them that you had moved to Newcastle where you were working as an electrician. In truth, you were living in Melbourne, unemployed and immersed in the drug culture. You went to considerable trouble to perpetrate that deception. It was against that background that you participated in the crimes for which you are to be sentenced.

70 I was told that a great number of references about 50 or 60 were obtained from friends and family who knew you. Only a selection (seven) were presented on your plea. I have read each of them carefully. Apart from your parents and your two brothers and sister I have mentioned, you have 23 aunts and uncles and 29 cousins. You come from a close family as well as a close school and sporting network. Your father attests to you being a caring, helpful and cheerful person. He says your offending is contrary to your upbringing, reputation and character. Clearly, you will be strongly supported by family upon your release from prison. He speaks of your remorse and sorrow for the impact of your offending on yourself and your family. Your family are clearly in shock and disbelief at learning of the crimes you committed.

71 A similar story and strong corroboration is found in the other references which come from:

A past De La Salle college captain
A past teacher
A friend and neighbour
A principal of a large business who has known your family for a long time
An aunt
The mother of one of your school friends who has observed you since the age of 12 or 13.

As a mother of two sons, now approaching 25 and 28 respectively I have had numerous teenagers, adolescents and young adults pass through my doors over that period of time and as a parent I am extremely grateful and proud of my sons' friendship choices in this regard. I have no hesitation in stating though, that the stand out amongst them has been Matthew Lowe.

As a teenage boy Matthew was always polite, helpful, communicative, and would happily converse with the adults and not just his peers and was a pleasure to have in my home. As he moved into young adulthood I witnessed in Matthew a good common sense and maturity coupled with an immense loyalty, which I honestly attribute to getting my own sons through some difficult periods in their transition to adulthood.

...

I believe Matthew Lowe is a person of extremely good character who is also lucky enough to come from a large, loving, strong and supportive family who are also of high morals and good character and who will be there to continue to support him at the conclusion of this chapter in his young life.

73 One searches for explanations for your decline into criminal activity. None are obvious. No psychologist report was tendered, as often happens to assist the court. One is left to assume that your immersion in the culture of drug taking removed from you your sense of perspective on life and value. But the law is clear. An altered state of mind induced by drug taking is not a mitigatory factor in sentencing.[20]

74 Recognising this, Mr Sheales, nevertheless submitted that the influence of drug taking in your case is relevant to the sentencing considerations: in particular, your ultimate prospects of rehabilitation. It is relevant, he submitted, because the effect of drug taking can, in your case, be viewed as the explanation for your decline into criminal activity. That being so, he submitted that with your family background, upbringing and promise of future support, there is a strong prospect that you will avoid returning to taking drugs and thus avoid any further criminal behaviour.

75 Because you pleaded guilty to the drug and firearm charges you are at least entitled to the benefit of a sentencing discount for the utilitarian benefit to the community. But I also accept that you have expressed genuine and complete remorse to your family and others for your involvement in the drug culture and with drug trafficking. Along with your family support, your contrition also bodes well for rehabilitation prospects.

76 By contrast, you have never accepted responsibility for involvement in the murder of Faugere. Accordingly, I cannot take into account any remorse or sense of accountability for your participation in that most serious crime.

77 On the whole, although you have demonstrated a capacity to practise the most blatant deception on those who otherwise support and care for you, I am prepared to accept that you do have good prospects for rehabilitation and for staying clear of criminal conduct in the future. There must be a certain guardedness about that prediction given that, despite coming from a strong family and having had the benefit of a good upbringing, you slid into the murky world that you did. Your capacity to resist the return to drug use when in the community remains to be tested. However, you were young and you will have a salutary period of imprisonment to evaluate the choices that you made.

78 Your offending involves crimes at the most serious end of the criminal spectrum and, in the case of the murder count, a particular instance of that crime that will horrify and offend any right thinking member of our community. It diminishes us all. Sentencing for your participation in it clearly attracts the purposes of punishment and denunciation. Notwithstanding that you did not have the same aggravating motive[21] that Seckold had, and may not have directly participated in the actual killing of Faugere or dismemberment of his body,[22] the whole enterprise depended on the participation of each member in performing their tasks. As I said earlier, you joined in the enterprise to kill or cause really serious injury to Faugere, and he was killed, and his body was callously and atrociously dismembered by your partners in the enterprise. With the others, you share in the full responsibility for the outcome.

79 Your sentence will reflect the community's outrage and denunciation, as well as its will to deter wouldbe participants in such activity.

80 You also shared with Seckold something of the brazen disregard for the law mentioned by Lasry J, illustrated by the movement of clandestine laboratories from one location to another as you developed concerns about detection. You were involved in two such moves over a period of months. Keeping that in mind, and also having regard to the risk that a return to the drug culture might lead you to return to crime generally, specific deterrence must also play a prominent role in my sentencing consideration.

81 Nonetheless, as mentioned, you are young, you have a robust family background and support network, you were previously of good reputation, and you have expressed remorse for some of your offending. In short, there are reasons to believe you have good prospects to rebuild your life after the imprisonment you must serve. That imprisonment will, of necessity, interrupt what would otherwise have been a prime period of your life. And so, the encouragement of rehabilitation is also a purpose that I have taken into account.

82 I have also reviewed the total effective sentence in accordance with the principle of totality to attempt to ensure it is just and appropriate for the whole of your offending.

On the charge of murder of Yengo Faugere you will be sentenced to be imprisoned for a period of 20 years (Charge A)
On the charge of trafficking in a drug of dependence not less than a large commercial quantity you will be sentenced to be imprisoned for a period of 4 years (Charge B)
On the charge of possession of an unregistered general category handgun you will be sentenced to be imprisoned for a period of 3 years (Charge C)
On the charge of possession of an unregistered category B long arm you will be sentenced to be imprisoned for a period of 12 months (Charge D)
On the charge of possession of an unregistered category A longarm you will be sentenced to be imprisoned for a period of 12 months (Charge E)
On the further charge of possession of an unregistered category A longarm you will be sentenced to be imprisoned for a period of 12 months (Charge F).

84 I direct that 20 months of the sentence on Charge B (trafficking) be served cumulatively upon the sentence on Charge A (murder). I direct that the sentences on Charges C, D, E and F (possess firearms) be served concurrently with the sentence on Charge A and all other charges.

85 That results in a total effective sentence of 21 years and 8 months imprisonment. I fix a period of 16 years before you are eligible to apply for release on parole.

86 I have determined that your presentence detention is a period of 994 days, including this day, and pursuant to s 18 of the Sentencing Act 1991 I declare that such a period is to be reckoned as a period of imprisonment already served under this sentence.

87 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the charges on indictment C10386636.A (drug and firearms offences), the total effective sentence I would have imposed on you would have been a period of imprisonment of 24 years and I would have fixed a minimum period of 19 years before you would have been eligible to apply for release on parole.

88 On 3 October 2014 the prosecutor sought disposal, retention and forfeiture orders which you have not opposed. I have made those orders.

[4] Charges 3, 4 and 5, Indictment C10386636.A.

[6] R v Seckold [201] VSC 441 ('Seckold').

[7] R v Martin [2013] VSC 60R ('Martin').

[9] R v Frankland [2013] VSC 356.

[10] R v Tiberi [2013] VSC 710.

[11] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ).

[13] Seckold [2014] VSC 441 [9]-[19], [22].

[15] Seckold [2014] VSC 441 [53].

[16] R v MacGowan (1986) 42 SASR 580, 582-583 (King CJ).

[17] Announced by Lasry J, in each case, in accordance with s 5(2AB) of the Sentencing Act.

[18] Martin [2013] VSC 60R [27].

[19] R v Merrett & Ors [2007] VSCA 1 [35], [36].

[20] R v Redenbach (1991) 52 A Crim R 95, 99; see also R v Howell [2007] VSCA 119; (2007) 16 VR 349, 355 and Hasan v The Queen [2010] VSCA 352 [23].

[21] DPP v Borg [2013] VSCA 181 [22].

[22] Wu v The Queen [2014] VSCA 79 [82].

Poisons and Controlled Substances Act 1981

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (3)