The Queen v Spence [2015] VSC 321

Supreme Court of Victoria|2015-07-13|Before: Croucher J

CRIMINAL LAW - Sentence - Murder - Accused suspected deceased of informing on him to police about illicit drug activities - Accused drove deceased, with others, to rural location on pretext - Accused dragged deceased into shed and directed PM to tape his hands behind his back and gag him with tape - At direction of accused, at gunpoint, TM placed plastic bag over deceased's head but refused to tie bag - PM instead tied plastic bag - Deceased suffocated to death - Intentional killing - Accused directed PM and TM to burn body, who did so only partly - Body ultimately burnt to ashes by WR and AC - Ashes disposed of by WR and others - Very serious example of murder - No remorse - No prior convictions for violence alleged - Moderate reduction in moral culpability on account of effects of acquired brain injury - Reasonable prospects of rehabilitation - Importance of general deterrence, specific deterrence, just punishment, denunciation and rehabilitation - Sentence of 27 years' imprisonment with non-parole period of 22 years.

2 On 6 January 2013, fixed with this suspicion, Mr Spence, on a pretext, drove Mr Doan, along with Peter Mitchell and Todi Muja, from Melbourne for several hours to a property in Johnsonville (which is near Bairnsdale). Along the way, Mr Spence called Mr Doan a "dog" and, during an early part of the journey, made him travel in the boot of the car.

3 After arriving at the property, which belonged to his associate "WR", Mr Spence dragged Mr Doan into a shed and directed Mr Mitchell to bind his hands and gag him with tape. Mr Spence again called Mr Doan a dog. WR entered the shed. Concerned he might not be able to breathe properly, WR removed the tape from Mr Doan's mouth. Mr Spence and Mr Mitchell immediately reapplied the tape. WR left and Mr Spence followed. Upon his return, Mr Spence had a rifle. He then persuaded Mr Muja, at the point of the gun, to place a plastic bag on Mr Doan's head, but Mr Muja refused Mr Spence's direction to pull the bag down and tie it around his neck. Mr Spence had Mr Mitchell do this instead, so that Mr Doan would suffocate to death, which he did. It must have been a horrible, terrifying death.

4 Before leaving the property, Mr Spence directed Mr Mitchell and Mr Muja to burn Mr Doan's body, which they did, but only partially, before they too left. Subsequently, WR, with the assistance a 14-year-old boy, "AC", burnt the body to ashes. On a later occasion, at least two other persons assisted WR by removing the deceased's ashes and dumping them in a nearby river.

5 On 25 March 2015, after a five-week trial and four-and-a-half days of deliberations, a jury of twelve found Mr Spence guilty of the murder of Mr Doan.

8 At trial, Mr Spence did not dispute that he drove with Mr Doan and the others from Melbourne to Johnsonville. Nor did he dispute that Mr Doan was killed at WR's premises. By his plea of not guilty and through his counsel, Mr Desmond, however, he denied any part in the killing of Mr Doan and suggested instead that one or more of the others at the premises killed him.

9 Following the verdict, Mr Spence, through Mr Desmond, maintained his innocence. He also challenged some of the sentencing facts alleged by the prosecution.

10 I now turn to a more detailed summary of those facts.

11 Having considered the way in which the prosecution and defence cases were put at trial, the evidence before the jury, the potential dangers in some of that evidence and the competing submissions of the parties on the plea, unless otherwise indicated, I am satisfied beyond reasonable doubt of the following matters and that these conclusions are consistent with the jury's verdict:

12 Kevin Doan was aged 37 at the time of his death. He had come to Australia from Vietnam as a child. After leaving university without completing a degree, Mr Doan worked in various occupations, including as a manager at a retail store and in his own business at a photography studio. He had two children from a previous relationship which had broken down. At the time of his death, his (second) former partner Michelle Nguyen had not long since ended their relationship because he had fallen into heavy use of illicit drugs, particularly methamphetamine or "ice".

13 In January 2013, Mr Doan was living with Mr Muja in an apartment in St Albans. They had known each other for about a year. Both men knew Mr Spence. All three knew each other through the world of illicit drugs. It appears that Mr Mitchell knew Mr Spence, also through illicit drug use, but that he did not know Mr Doan, Mr Muja or WR before the day of the killing. While WR and Mr Muja did not know each other before that time either, Mr Spence and WR were associates in the drug world, and WR already knew of Mr Doan.

14 In October 2012, Mr Spence and Mr Doan argued over drugs. The argument escalated to the point where Mr Spence hit Mr Doan to the face, knocking him off balance and causing either his lip or an area near his eye to bleed. He accused Mr Doan of stealing from him, and asserted that he had failed to cook "ice" for him as promised.

15 On 30 December 2012, Mr Spence was arrested while driving an associate Thomas Nguyen's car. Inside the car, police found an "ice pipe" and an amount of powder believed to be methamphetamines. Mr Spence was charged with (and later convicted of) possession of the drug. Mr Nguyen and Mr Doan were also associates. From that point, it appears that Mr Spence came to believe that Mr Doan or another had informed on him to police about his illicit drug activities.

16 And so it was that, on 6 January 2013, Mr Spence persuaded Mr Muja, Mr Doan and Mr Mitchell to go for what was said to be a drive in the country (from Melbourne) and to help with some cannabis plants. Mr Spence was driving WR's Holden Calais. WR owned the Johnsonville property to which Mr Spence was heading and at which he (WR) had grown cannabis, in his work shed. Mr Muja sat in the front passenger seat of the car; and Mr Doan and Mr Mitchell sat in the rear seats. Mr Doan was heavily drug-affected.

17 At some point during the trip, Mr Spence looked in the rear vision mirror and called Mr Doan a dog. Also during the trip, to Mr Spence's great annoyance, Mr Doan was singing and talking constantly. Eventually, fed up with his noise and as a portent of things to come, Mr Spence put Mr Doan in the boot of the car. But Mr Doan continued to sing.

18 Later, Mr Spence stopped the car in Pakenham at premises belonging to Boris Miletic. Mr Spence opened the boot of the car and said to Mr Miletic, "What do I do with this?" Mr Miletic noticed that Mr Doan was lying on his side, groggy, and that he appeared to be drug-affected. He told Mr Spence that he should not be driving with a person in the boot and said, "What if you have an accident and someone runs up the arse of you?" Mr Spence just shut the boot and drove off. This response shows the contempt Mr Spence had for Mr Doan at this time, because of his suspicions.

19 At some stage during the trip, Mr Spence stopped the car, released Mr Doan from the boot and took him into a chicken shop. After that break, Mr Spence allowed Mr Doan to resume his seat in the rear of the car, where he stayed for the rest of the trip.

20 At another point during the trip, Mr Spence took the mobile telephones of the others and put them at Mr Muja's feet.

Events immediately preceding the killing of Mr Doan

21 Upon arrival at WR's property in Johnsonville, Mr Spence parked the car between the house and a large work shed. He went inside the house. The other three men waited in the car. After returning to the car, Mr Spence dragged Mr Doan into the shed. Mr Spence put Mr Doan on the floor and held him down with his elbow on his neck. He said, "You fuckin' dog, you gave me up." Mr Muja questioned what Mr Spence was doing. Mr Spence said he was suspicious that Mr Doan and another "gave [him] up". Mr Muja said, "No, man. Hey, hey. What about this other one?"

22 Mr Mitchell then entered the shed. At the direction of Mr Spence, Mr Mitchell tied Mr Doan's hands behind his back with tape and put tape around his mouth as well. Mr Muja told him to take it easy and to "give him a chance to talk". Mr Spence said, "No, fuck the dog."

23 At that point, WR entered the shed. Mr Spence said, "Look at this piece of shit." WR said something to the effect that his judgment is not good as he had been up for four days. He saw that Mr Doan was struggling to breathe, so he took some scissors from a work bench and cut the tape from his mouth. Mr Spence, who had been at the toilet nearby, came rushing back and said, "What are you doing?" Mr Spence and Mr Mitchell then taped his mouth again. WR then left the shed, and Mr Spence followed. After they had gone, Mr Muja pleaded with Mr Doan to tell them the truth, but he could not talk and just started screaming.

24 A short while later, Mr Spence returned to the shed carrying a rifle. He said, "I'm going to blow his head up." Mr Muja then stepped in and said, "No, what are you doing, man?" Mr Spence pointed the gun at Mr Muja and said, "You stand for a dog, you'll go down like a dog. Put the bag on him." After Mr Muja resisted, Mr Spence moved closer to him and said, "Do it now. Do it." Mr Muja put the plastic bag on top of his head. Mr Spence told him, "No, put it [on] properly and tie it up." Mr Muja did not comply.

25 At that point, Mr Mitchell stepped in, pulled the bag over Mr Doan's head and tied it with tape around his neck. Mr Muja turned away. Mr Doan was unable to breathe or even scream. He suffocated to death. Mr Spence said, "Oh, he pissed himself, so he's dead." He then left the shed.

26 At some point during the night, Mr Spence returned to WR's house, which was next to the shed, and said, "It's done" or "I did it."

27 Not long after he left the shed, Mr Spence returned and told Mr Muja to help Mr Mitchell "just get rid of it", meaning Mr Doan's body. At some point, perhaps earlier, he also said, "No body, no crime." He left the shed again.

28 Mr Mitchell then found a large cardboard box in which he and Mr Muja put the body. Mr Mitchell taped up the box.

29 Mr Spence returned to the shed with "ice", which he and Mr Mitchell injected and Mr Muja smoked. Mr Spence said, "What's the point in hiding it because we all fuck up anyway?" (While I accept this, or something like it, was said, I do not understand what it means.) Mr Spence said he had to go back to Melbourne.

30 Before he left the property, Mr Spence again returned to the shed, this time with $1,000 in cash, which he gave to Mr Muja. He said to Mr Mitchell he would "look after" him afterwards. He told Mr Muja that he would "give [him] more ... Find anything you want ... and just get rid of it", which Mr Muja took to mean, burn the body.

31 After Mr Spence left, Mr Mitchell found a trailer and, with the assistance of Mr Muja, pulled it inside the shed and placed the cardboard box containing the body in it. Mr Mitchell placed wood in the trailer as well, and lit a fire in it. The fire produced smoke. Mr Muja said that the smoke would attract the fire brigade. So Mr Mitchell put out the fire with water from a hose.

32 The next morning, Mr Muja and Mr Mitchell left in WR's Holden utility. AC, a 14-year-old boy who was at the property, opened the gate for them. Mr Mitchell dropped Mr Muja at a bus stop in Bairnsdale. Mr Muja gave him $200. Mr Muja went to a local hotel before catching a train to Melbourne.

33 After Mr Muja and Mr Mitchell had left, WR noticed the partly burnt body in the trailer inside the shed. Either that day or the next, WR and AC moved the box containing the body to a grassed area, built a fire and burnt the body until there was nothing left but ashes.

34 On a subsequent occasion, the ashes were removed from the property by at least two other men who had not been present at the time of and had no other connection with the killing - "AS" and "MA". WR was told by AS that the ashes were dumped in the Tambo River.

35 On 7 February 2013, Mr Spence was at Nicole McLean's home. Mr Spence told her, among other things, that he had done something bad; that he had a part in the disappearance of a friend; that the body was burnt; and that it was in a country area. He said, "Have you ever smelt a body burning? There's nothing quite like it."

36 While I am satisfied beyond reasonable doubt that Mr Spence said the foregoing things to Ms McLean, I am not satisfied that he said some of the other things she alleged, including whether Mr Doan was tortured, whether he (Mr Spence) liked or "got off" on what had happened and so on. Ms McLean struck me as unsure about this part of the conversation she had with Mr Spence.

37 During an investigation into an aggravated burglary by WR committed on 4 February 2013, police received information that suggested Mr Doan had been killed at the Johnsonville property on or about 6 January 2013.

38 Ultimately, police arrested Mr Spence on 21 February 2013 and charged him with murder. He has remained in custody since that time.

40 Mr Doan's family are, of course, devastated at the loss of their loved one, and in such heinous circumstances. They are tormented by the terror Mr Doan must have suffered in his dying moments.

41 So much is revealed by the victim impact statements of Mr Doan's mother Kim Phuong Ngo and his sister Lien Doan.[1] Ms Ngo, Ms Doan and/or other members of Mr Doan's family were present at the plea hearing and throughout the trial.

42 Since her son's death, Ms Ngo feels she no longer cares about the world and that her soul has been taken from her. She knows that he is gone but cannot help hoping he might walk through her door one day. She still sets a place for him at meal times and talks to him but then offers the food to his spirit. It pains her that she has not been able to bury her son, for not even his ashes have been recovered.

43 Ms Doan explains that, in their family's culture, those who die without a proper burial ceremony become "wandering souls who cannot lay to rest [and who] may never be reincarnated and enjoy life again". She speaks of how her mother has even become a vegetarian in the hope of gaining some good karma for her son's soul, but that she has lost a good deal of weight as a result.

44 The victim impact statements are powerful and extremely moving documents. I have taken their contents into account in sentencing, although I have also allowed for the fact that, while Mr Spence is responsible for Mr Doan's murder and for directing others to burn the body afterwards, he is not responsible for the total destruction of the body.

45 I turn now to the nature and gravity of, and Mr Spence's culpability and degree of responsibility for, the offence.

46 Murder is the most serious offence in the criminal calendar. In this State, murder is (mostly) a common law offence[2] the maximum penalty for which is set by statute at imprisonment for life.[3] The offence can be committed with or without motive and with an intention to kill, an intention to cause really serious injury, recklessness as to causing death or recklessness as to causing really serious injury. For reasons that follow, I regard Mr Spence's offence as a very serious example of murder.

47 First, I am satisfied that Mr Spence intended to kill Mr Doan prior to and at the time of his killing. This was not a severe beating gone wrong. Rather, Mr Spence intended, by his actions and the actions of others, to end Mr Doan's life by suffocation.

48 Secondly, while I am not satisfied that Mr Spence intended to kill Mr Doan at the time he set off from Melbourne, but rather that he formed that intention at some point during the goings-on in the shed in Johnsonville, I am nevertheless satisfied that he had Mr Doan killed because he believed that he was "a dog", i.e. someone who had informed on him about his illicit drug activities. I accept that Mr Spence called Mr Doan a dog during the trip to Johnsonville and when in the shed before the killing. Mr Desmond submitted that I should not be satisfied that Mr Spence called Mr Doan a dog during the trip to Johnsonville. While Mr Muja did not include this allegation in his initial statement, having observed him at trial and allowing fully for the criticisms made of him by Mr Desmond as a witness, I am satisfied beyond reasonable doubt by the key features of Mr Muja's evidence and, in particular, that Mr Spence did utter such a remark during the trip and at the other times alleged.

49 Thirdly, I am satisfied that Mr Spence's purpose in taking Mr Doan to Johnsonville, with Mr Muja and Mr Mitchell, was to confront and interrogate him about his belief, and if necessary assault him, in what he regarded as a relatively remote and safe place - namely, the premises of his associate WR. Contrary to Mr Desmond's submission, I am also satisfied that Mr Spence's purpose for the trip was not to discuss a possible methamphetamine laboratory at the Johnsonville property or related matters. Even if, contrary to this conclusion, discussions about a possible laboratory were part of Mr Spence's purpose for the trip, that does not defeat the conclusion, on the criminal standard, that another purpose of the trip was at least to confront Mr Doan about his suspicions and, if it became necessary, to assault him.

50 Fourthly, while I accept Mr Desmond's submission that Mr Doan cannot have been in the boot for more than perhaps an hour or so of the several-hour trip to Johnsonville, I am nevertheless satisfied that Mr Spence consigned him to the boot because of his contempt for him as a result of a belief (albeit mistaken) that he was an informer. The way in which Mr Spence regarded Mr Doan at that point is also illustrated by the manner in which he spoke about him to Mr Miletic and the fact that he just closed the boot and left when Mr Miletic pointed out the risks of having him in such a dangerous position.

51 Fifthly, Mr Doan was killed in horrible circumstances, all of which were of Mr Spence's design. Pursuant to a joint criminal enterprise with and instigated by Mr Spence, Mr Mitchell taped the plastic bag around Mr Doan's neck, when his hands and mouth had already been bound, thereby rendering him unable to breathe and unable to remove the bag or otherwise defend himself. Earlier, Mr Spence had directed Mr Mitchell to tape up Mr Doan. He called him a dog in the lead-up to his death. He caused the tape to be reapplied to Mr Doan's mouth after WR had removed it. He had also directed Mr Muja, at the point of a gun, to place the plastic bag over Mr Doan's head. Three men were standing around Mr Doan while he was in that helpless state. Mr Doan's last minutes alive must have been terrifying. While there may be worse ways to die, this must be approaching the worst category.

52 Sixthly, as Mr Doan's sister observed in her victim impact statement, when a child pre-deceases his parents, it reverses the natural order of things. Such a death must be all the more unbearable when the child - or sibling or parent - is known by his family to have been killed in such horrible circumstances, as here.

53 Seventhly, the offence is aggravated by the fact Mr Spence directed Mr Muja and Mr Mitchell to burn the body, which shows an added level of callousness that does him no credit. As I indicated earlier, however, I accept that Mr Spence cannot be held responsible for the total destruction of the body and removal of his ashes, which has created a particular additional hardship for Mr Doan's family.

54 On his plea in mitigation, Mr Mitchell gave sworn evidence describing his own actions as "putrid". I considered that to be strong language, but apt nevertheless, despite the fact that he was convicted of manslaughter, not murder. While Mr Mitchell's actions were putrid, Mr Spence's were even worse. For he was the one who orchestrated this whole sorry affair. He used others to commit the acts which, when coupled with his intentions, amounted to an intentional and gruesome murder motivated by no more than a belief that the deceased had been an informer.

55 It is for these reasons that I regard this a very serious example of murder. Mr Spence is at the apex of those responsible for Mr Doan's death. His culpability is correspondingly high. The offence is not mitigated by any remorse, as Mr Spence maintains his innocence.

56 All of that said, this is not in the worst category of case. Mr Rochford QC, who appeared with Mr Hutton for the Director, conceded as much. He expressly refrained from making a submission that this crime warranted a life sentence or that I should decline to fix a non-parole period. Rather, implicit in his submission, particularly given his reference to R v Seckold[4] as a relevant comparator, this is a case demanding a substantial fixed term of imprisonment with a non-parole period. I agree. More of that shortly.

57 Balanced against the seriousness of the offending are the mitigating factors on which Mr Spence is entitled to rely.

58 Before going to those factors, I should add that Mr Spence's personal history is set out in detail in the neuropsychological report of Associate Professor Warwick Brewer.[5] I shall not repeat that detail in these reasons, although I will be referring to aspects of the report shortly.

Limited criminal history and no history of violence alleged

59 The first factor in mitigation is that Mr Spence, who is now aged 31, has only a modest criminal history and no prior convictions for violence in this State.

60 On 9 March 2011, he appeared at the Magistrates' Court at Melbourne on charges of theft, theft from a motor vehicle, failing to answer bail, shop-stealing, going equipped to steal, handling stolen goods and possessing amphetamines. He was convicted and placed on a community based order for 15 months, with various conditions including a requirement to undergo assessment and treatment for alcohol/drug addiction and medical, psychological or psychiatric assessment and treatment as directed by the regional manager.

61 On 17 July 2012, he appeared at the Magistrates' Court at Sunshine on charges of possessing cannabis and failing to produce a valid bus ticket. He was convicted and fined an aggregate of $100.

62 It was accepted at trial that Mr Spence was involved in drug trafficking. But, while he was convicted of possession of the drugs found in the car he was driving on 30 December 2012 and of the drug offences just mentioned, it is not alleged that he has been convicted of any drug trafficking offences.

63 Mr Desmond noted that, in Associate Professor Brewer's report, he spoke of Mr Spence's having spent two weeks and two years respectively in custody in Western Australia. It was not clear from the report whether that time was served in juvenile detention or in gaol as an adult. Further, the report notes that Mr Spence was convicted of an aggravated burglary as a juvenile but does not link that offence to any period in custody or any other sentence. Finally, the report notes that Mr Spence said he had been charged previously with drug trafficking, theft, possession of stolen goods and armed robbery, but does not explain whether any of those charges resulted in findings of guilt, convictions or sentences of any kind.[6] The Director did not seek to prove any convictions from interstate. In the circumstances, all I can say is that it is accepted that Mr Spence spent two periods in custody in Western Australia, but I cannot say for what offences or whether that time was spent in juvenile detention or adult custody. Nor, in those circumstances, could I say that he has any prior criminal history for violent offending.

64 Thus, I accept that there is nothing in the criminal history before me that suggests Mr Spence has any disposition to violence generally or that he is likely to repeat the behaviour of the type he engaged in on 6 January 2013.

65 Secondly, Mr Desmond relied on the evidence that Mr Spence suffered an acquired brain injury ("ABI") as a result of being hit by a tram in 2012, and the effects thereof, in two respects.

66 First, Associate Professor Brewer described that injury as "moderate to mild" but also said that it "has apparently exacerbated premorbid ... attention, verbal learning and verbal processing skills".[7] Mr Spence's IQ is in the "borderline range".[8] He also suffers from mild to moderate anxiety and depression and possibly a risk of psychosis.[9] Further, he has a long history of illicit substance abuse.[10] In Associate Professor Brewer's opinion:[11]

[26] ... Mr Spence's behaviour that attracted [the charge of murder] occurred in the context of an exacerbation of his significant premorbid personality proclivities by virtue of his ABI, his psychiatric vulnerabilities and his substance abuse. Nevertheless, at this current assessment, he does not technically meet the criterion to warrant a diagnosis of cognitive disability. ...

[27] With respect to Mr Spence's mental and cognitive state at the time of the alleged offending, it appears from the available evidence that his mental state was more certainly impacted by his ABI. ...

[28] Whilst Mr Spence's amalgam of developmental risks would leave the average person his age at high risk for impulsive and aggressive behaviour, and for poor judgment, his established history of ABI and associated cognitive vulnerabilities, along with apparent post-traumatic stress symptoms and ongoing instability of mental status would be expected to leave him even more likely to act with aggression and impulsivity in situations of high emotional arousal. From the available evidence, Mr Spence was likely using methylamphetamine prior to the timing of the offence. He was more likely therefore to be impulsive in his actions, to be egocentric in his focus in that he was less mindful as to the longer-term impact of his behaviour, and to engage in actions that reflect poor judgment.

[30] With respect to Verdins principles, from the available evidence, Mr Spence's constellation of risks (longer-standing psychiatric history and cognitive vulnerabilities that were compounded by his ABI and substance abuse) leave him in a position at the time of the offence to be significantly less able to engage in organized and mindful behaviour than similar-aged peers who do not suffer the same vulnerabilities.

67 In light of that opinion, which was not challenged by the Director, I am prepared to accept that Mr Spence's ABI and associated cognitive vulnerabilities left him more likely to act with aggression, impulsivity and poor judgment in the lead-up to, at the time of and in the period immediately after the killing. However, while that finding has the effect of reducing Mr Spence's moral culpability for that behaviour to some extent, I accept Mr Rochford's submission that the reduction should be no more than moderate. For, as Associate Professor Brewer noted in other parts of his report, Mr Spence still had the wherewithal to be sufficiently organized to consider and respond to the impact of his actions prior to, during and following the offence.[12]

68 Secondly, Mr Desmond submitted that, because of Mr Spence's ABI, prison would be significantly more burdensome for him. As Mr Rochford pointed out, however, Associate Professor Brewer opined that the "impact of Mr Spence's cognitive and emotional vulnerabilities suggests that he will continue to respond best to external structure and routine" but that, "[i]n this context, imprisonment paradoxically provides a form of treatment for [him]".[13] Further, later in the report, he said that, "in the absence of the opportunity for appropriate psychotherapy, the routine structure of prison is paradoxically the best form of treatment for Mr Spence".[14] Nowhere in his report does Associate Professor Brewer say that Mr Spence will find gaol significantly harder than most. To be sure, he does say that Mr Spence's "psychiatric condition will likely continue to remain unstable without appropriate psychotherapy" and that he is "realistically at risk [of] assault in prison", which could worsen his condition.[15] But that is a far cry from saying that gaol will be significantly more burdensome for Mr Spence than it is for most other prisoners. The evidence simply does not satisfy me that Mr Spence will find gaol significantly more difficult than most others do.

69 At this point, I should set out Mr Spence's personal circumstances, some of which provide the evidence for my conclusions about Mr Spence's prospects of rehabilitation, to which I shall come shortly.

70 Mr Spence was born on 3 June 1984, was 28 at the time of the offence and is now 31. Apparently, he could barely speak until he was about four years of age. He never met his biological father. He was taunted often throughout childhood, was home-schooled for a period, repeated Grade 1 or 2 and ultimately left school in Year 8. He was diagnosed with ADHD when in his early teenage years and treated with dexamphetamine. After leaving school, he often lived in hostels. He worked as a barman for about five years. In 2009, he was diagnosed with bi-polar disorder. From an early age, he drank alcohol to excess and used drugs, including cannabis and methamphetamines. In 2011, he unsuccessfully attempted detoxification at Odyssey House. He has been on a disability pension since the tram accident in 2012.

71 Mr Spence's mother Lorraine Morgan provided a reference to the Court.[16] Mrs Morgan described her son as very kind, the type who would give his last dollar to a person in need. He loves his sisters and family. He did not mix well with his peers as a child. While they preferred to play games, he preferred to help his stepfather doing jobs on the farm. He was inconsolable when his stepfather died of cancer in 1998. Mrs Morgan believes her son has had a very hard and unfair life. She does not believe he is capable of committing the crime of which he has been found guilty and begged for leniency for him.

72 Mr Spence's sister Lana Knight also provided a reference to the Court.[17] Ms Knight described her brother as, inter alia, likable, generous and hard-working. He was happy to play with her as a child, even though she was three years younger than him. She confirmed that he did not speak until aged four and believes that he may have had a mild form of autism. He became quiet and withdrawn after his step-father died. That sad event, combined with the constant bullying he suffered from other children, caused him to leave school at 14. He went to Port Hedland, where he attempted to resume his schooling, but was bullied again and left. In an attempt to fit in, he would often end up doing undesirable things, such as use drugs or commit misdemeanours. She said her brother has always longed for a partner and children. As a result of a childhood incident, however, it has been assumed he cannot have children, which adds to his depression. Ms Knight said her brother has always been a hard worker and that employers have been happy with his work. Like their mother, she cannot believe he is guilty, as she regards him as a follower, not a leader. She asked that consideration be given in sentencing to her belief that their mother, who has an autoimmune disease, is not expected to live for perhaps more than ten years. She said that Mr Spence has a supportive family in Western Australia, where he will live when ultimately released. She believes he will be ready and willing to turn his life around and become a constructive member of society at that time.

73 The third matter in mitigation is that, while he has no work record to speak of in recent times and a long history of illicit drug abuse, I am nevertheless satisfied that Mr Spence has reasonable prospects of rehabilitation - not good or excellent, but at least reasonable.

74 There are essentially five reasons for that conclusion. First, Mr Spence has only a limited criminal history and does not appear to be violent by nature. Rather, I accept the assessments of his mother and his sister to the effect that he has some admirable qualities.

75 Secondly, I also accept that he will have the support of his family throughout his sentence and upon his eventual release. The support during his sentence will likely be from a long distance, since, as I understand it, at least some, or perhaps all, of his family live in Western Australia. I should add that it seems likely, because his family are interstate, that he will suffer a degree of loneliness during his sentence, which is a factor that will make his time in gaol harder and which itself is a mitigating factor to which I have regard.

76 Thirdly, while Mr Spence has been on a disability pension in recent years as result of his ABI, I accept that earlier in his life he showed he could work hard and hold down a job. I am also prepared to accept he can do so again in the future.

77 Fourthly, while awaiting trial in custody, Mr Spence has sought to use his time wisely by doing courses ranging from anger management to welding and from carpet maintenance to giving up smoking.[18]

78 Fifthly, the foregoing factors persuade me that, despite the gravity of the crime of which he has been found guilty, it is unlikely that Mr Spence will offend in a violent manner in the future.

79 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

80 In my view, general deterrence, just punishment and denunciation are very important considerations in the present case. People should understand that behaviour of the type engaged in by Mr Spence is denounced by this Court and will result in punishment that reflects that a life has been taken intentionally in horrible circumstances and that the lives of the deceased's loved ones have been marred forever.

81 While specific deterrence must be given weight as well, I have given it less weight than otherwise on account of Mr Spence's limited prior convictions and reasonable prospects of rehabilitation, and the related conclusion that I think it unlikely he will offend in a violent manner in the future. Further, the sentence to be imposed as a result of the weight given to general deterrence, just punishment and denunciation will have the effect of deterring Mr Spence from further offending in any event.

82 Given those same factors, there is a lesser need than otherwise to give weight to protection of the community as an additional and separate sentencing purpose. Again, the community will be protected by the sentence produced as a result of the weight to be given to other sentencing purposes.

83 Rehabilitation remains an important sentencing purpose in this case. In my view, given the reality that Mr Spence must be released eventually and that he does have reasonable prospects of rehabilitation, protection of the community will be better served by the fixing of a sentence that maximizes his chances of rehabilitation both in custody and upon his release.

84 In so far as I can determine them, I have had regard to current sentencing practices for murder.

85 Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years' imprisonment in 2009-10 to about 22 years' imprisonment in 2013-14; the median sentence was 20 years' imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[19]

86 Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the offence, whether there were significant aggravating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

87 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. One case that has some similarities to the present is R v Seckold.[20] Following a trial, Brok Seckold, an illegal drug manufacturer, was found guilty of the kidnapping and murder of an associate he believed had informed on him to police and had been stealing precursor chemicals from him in order to make his own drug business. Those beliefs were mistaken. It was alleged Mr Seckold and others forcibly kidnapped the deceased and took him to a remote location, where Mr Seckold shot him once in the head, dismembered his body and then placed the remains in a drum of acid. Mr Seckold was aged 31 at sentence, and had only one prior finding of guilt, for which he received a bond. Lasry J imposed a sentence of 28 years' imprisonment on the murder; and 12 years' imprisonment (two years cumulative) on the kidnapping. His Honour also cumulated an additional two years of a seven-year sentence he imposed for a charge of trafficking in a large commercial quantity of a drug of dependence, to which Mr Seckold had pleaded guilty. The total effective sentence was therefore 32 years' imprisonment, on which Lasry J fixed a non-parole period of 25 years.[21]

88 Mr Desmond submitted that significant distinguishing features in R v Seckold are that the murder was carefully planned and pre-meditated for a substantial period and that the accused did not appear to have any mitigation of the type that results from the effects of Mr Spence's ABI. Further, the body was dismembered and placed in acid in that case, whereas, while the body was completely destroyed in the present case, that was not Mr Spence's doing. On the other hand, as I have already remarked, the manner in which Mr Doan was killed was horrible - even worse than the manner of killing in Mr Seckold's case.

89 Another case with some similarities, and like dissimilarities, is DPP v Borg.[22] Leonard Borg, a grower of illegal cannabis crops for sale, believed that the deceased had informed police about his illegal activities. Mr Borg bought a rifle from interstate, took the deceased out to dinner in Melbourne, afterwards drove him to a factory in an outer suburb and there used the rifle to shoot him four times in the head and six times in the chest. Over the next three days, Mr Borg and an associate dismembered the deceased's body, placed its parts in tubs containing acid and then washed the contents of the tubs into the sea. Mr Borg was aged 29 and had a modest criminal history. While he was said to have had shortcomings in his cognitive ability, he had managed to organize the cultivation of a large number of cannabis plants, the killing of the deceased and the destruction and disposal of his body. On the count of murder, the trial judge imposed a sentence of 23 years' imprisonment. Mr Borg also pleaded guilty to dishonesty and drugs offences, which resulted in additional sentences and nine months' cumulation, and therefore a total effective sentence of 23 years and nine months' imprisonment, in respect of which a non-parole period of 19 years was fixed. On an appeal by the Director, the Court of Appeal increased the sentence on murder to 28 years' imprisonment and imposed the same level of cumulation of the other sentences, making a total effective sentence of 28 years and nine months' imprisonment, in respect of which a non-parole period of 24 years and nine months was fixed.[23]

90 A third case I should mention concerns Mr Seckold's co-accused Matthew Lowe, who was tried separately and found guilty of murder but not guilty of kidnapping.[24] Mr Lowe was aged only 22 at the time of offending, did not have Mr Seckold's motive, had a lesser role in the murder, was not involved directly in the killing or dismemberment of the deceased, had a robust family support network, was previously of good reputation and had good prospects of rehabilitation. Macaulay J imposed a sentence of 20 years' imprisonment on the murder. Mr Lowe had also pleaded guilty to trafficking in a large commercial quantity of a drug of dependence for which he received a sentence of four years' imprisonment (20 months cumulative), which made a total effective sentence of 21 years and eight months' imprisonment, in respect of which his Honour fixed a non-parole period of 16 years.[25]

91 As will be seen shortly, balancing all considerations, I regard Mr Spence's crime of murder as deserving of a substantially heavier sentence than that which was imposed on Mr Lowe for murder and as deserving of a sentence much closer to, but not quite as heavy as, the sentences imposed on Mr Seckold and Mr Borg for murder. While Mr Spence's crime involved a more horrible example of killing another person than did each of the latter two cases, it did not involve the same level of premeditation or involvement in the destruction of the deceased's body as Mr Seckold and Mr Borg each engaged in. Further, Mr Spence's impaired judgment resulting from his ABI had no equivalent in the other two cases.

92 I could go on with comparisons. But, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied. Nevertheless, I have found the foregoing and other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for murder, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of the process of comparison, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Spence's offence of murder.

93 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law principle of parsimony. I have applied that principle and this provision when fixing sentence.

94 Some of the other persons involved in the events surrounding the killing of Mr Doan, or its immediate aftermath, pleaded guilty to different charges and have been sentenced by this Court.[26] Given the offences to which the co-accused pleaded guilty, none of the sentences imposed provides a meaningful basis for comparison in the present case for the purposes of considering the principles of parity among co-offenders.

97 Balancing all considerations, for the murder of Nhan Ngoc Doan, Harvey Spence is sentenced to 27 years' imprisonment with a non-parole period of 22 years.

98 I declare that, including today, 873 days of pre-sentence detention are to be reckoned as already served under the sentence.

[1] The victim impact statements became Exhibits 1 and 2 on the plea.

[2] The exception is that what was once the felony-murder rule is now put on a statutory footing - see s 3A of the Crimes Act 1958 (Vic) - which was inapplicable in this case. This case was put on the basis of joint criminal enterprise in an intentional murder.

[3] See s 3 of the Crimes Act 1958 (Vic).

[4] R v Seckold [2014] VSC 441.

[5] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6).

[6] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), pp 3[8]-[9] & 7[21].

[7] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), p 8[24].

[8] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), pp 5[17]-6[19] & 7-8[23].

[9] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), p 7[21].

[10] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), pp 3[9], 4[11], 4-5[14], 7[21]-[22], 8[24] & 9[26]-10[28].

[11] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), pp 9[26]-10[30].

[12] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), pp 8-9[26] & 10[32].

[13] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), p 10[29].

[14] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), p 10[32].

[15] Neuropsychological report of Associate Professor Brewer, 1 June 2015 (Exhibit 6), p 11[33].

[16] Ms Morgan's reference became Exhibit 3 (see also T 17-19).

[17] Ms Knight's reference became Exhibit 4 (see also T 19-20).

[18] See bundle of certificates (Exhibit 5).

[19] Sentencing Advisory Council, Sentencing Snapshot (No 171), May 2015, pp 2-4.

[20] R v Seckold [2014] VSC 441.

[21] R v Seckold [2014] VSC 441 at [42]- [49], [53]-[55], [58], [63] & [74]-[76]. Mr Seckold also pleaded guilty to multiple firearms charges for which he received concurrent sentences of imprisonment.

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

[23] DPP v Borg [2013] VSCA 181 at [1]- [8], [15]-[18], [20]-[22] & [25].

[25] R v Lowe [2014] VSC 543 at [25]- [41], [46]-[48] & [66]-[85].

[26] See R v Mitchell [2015] VSC 24; R v WR [2013] VSC 603; and R v AC [2015] VSC 323. Mr Muja, MA and AS were not charged with any offences.

At a glance

Court

Decision date

Before

Source

Judgment (127 paragraphs)

Parties