The Queen v Trezise [2014] VSC 9

Supreme Court of Victoria|2014-01-31|Before: T FORREST J

CRIMINAL LAW - Sentence - Criminal damage - Recklessly cause injury - Assist offender - Participant in events that led to homicide - Plea of guilty - Significant remorse - Undertaking to give evidence at trial of co-offenders - Evidence that low intelligence and dependent personality made offender vulnerable to being overborne by aggressive males - This evidence, though not amounting to a mental impairment, relevant to moral culpability - Post Traumatic Stress Disorder - R v Verdins [2007] VSCA 102 - Term of imprisonment would be more onerous as a result of condition existing at the date of sentence - Sentenced to 1 year 9 months' imprisonment wholly suspended for a period of 2 years.

2 Peter Williams was then a resident of Smythesdale. He had commenced a relationship with Timothy O'Brien's mother in approximately 2011. He took on the role of stepfather to Timothy, who became very attached to him. For reasons that are unnecessary to recount, Darren Wilson, a resident of Ballarat, fell out with Mr Williams. He left an abusive note at Mr Williams' house on 1 January 2013. Police spoke to Darren Wilson on 3 January and advised him to stay away from that house. Wilson demonstrated to the police a large animosity towards Mr Williams and threatened to kill him.

3 Wilson developed a plan to lure Mr Williams to the address of a nearby resident, RC, a seventeen year old woman. Wilson's proposal was to bash Mr Williams at that address. RC was complicit in this plan.

4 Shortly prior to January 2013 you had commenced a relationship with Joel Henderson. He lived with you in the weeks leading up to this episode.

5 It is unclear how you initially became involved in this plan to lure Mr Williams into this trap. What is clear is that you spoke to Darren Wilson at about 1.00am on 5 January 2013 and then, with Joel Henderson and two of your young children in your car, you drove to the Entourage Bar in Mair Street, Ballarat. At 1.22am, Wilson entered your car. You all drove to the house of Joel Henderson's mother. Henderson told you that he and Darren Wilson were going to go and "smash up" Belinda Isaacs' house. Ms Isaacs was formerly Henderson's girlfriend.

6 You parked the car outside the Henderson house and Joel Henderson returned with what you later discovered was an axe. You then drove Henderson, Wilson and your children to Belinda Isaacs' house.

7 Wilson and Henderson ran into the yard of her Department of Housing house. They smashed a number of windows with the axe. They ran back to your car and you drove them from that crime scene. You have pleaded guilty to Charge 1 on the indictment on the basis that you knowingly assisted Wilson and Henderson to damage six windows by conveying them to and away from Ms Isaacs' house.

8 Wilson paid for fuel for your car. You then drove, at his direction, to RC's house at Scarsdale, a suburb adjoining Smythesdale and about 20km from Ballarat. Your children, Dylan, then eight, and Sophie, then six, remained with you on this trip. On the way out to Scarsdale Wilson told you of his plan to bash Mr Williams. Henderson agreed in your presence to assist Wilson.

9 You arrived at RC's house. Wilson and Henderson alighted from your car. You saw Henderson remove a wooden handled object and walk towards RC's house. You heard Wilson, Henderson and RC discussing further the plan to lure Mr Williams to RC's house so that he could be bashed there. You were asked to drive RC to Mr Williams' house. You knew that she proposed to advise him falsely of the presence of a stalker at her house. You knew that this information was designed to lure Mr Williams to RC's house. You drove RC to Mr Williams' house. Your children remained in your car.

10 You accompanied RC to Mr Williams' front door although you held back a little. RC told Mr Williams about stalkers and prowlers at her house and she asked him to come and check her property. You drove RC and your children back to her house. Mr Williams followed you in his car. Young Timothy O'Brien accompanied him.

11 Mr Williams entered by the back door. Darren Wilson, his faced masked in a pillow case, jumped from a room and punched Mr Williams to the face. Blows were exchanged. Any further assault on Mr Williams was interrupted by Timothy O'Brien striking Darren Wilson to the head with a baseball bat. This assault upon Mr Williams constitutes Count 2 on the indictment. You assisted in the commission of this offence by driving RC to the Williams' house so that she could recount the false prowler story and persuade Mr Williams to return to her house. As I have observed, you knew the real purpose was for RC to lure Mr Williams back to RC's house so that Wilson and Henderson could bash him. Mr Williams suffered bruising to his nose and face. I regard this as a serious offence.

12 Darren Wilson fell to the ground after being struck with the baseball bat. You were standing at the back door at this stage. You screamed. Henderson ran into this back room carrying an axe. The 14-year-old boy it seems struck Henderson with the baseball bat. In order to capture the nature of what occurred next it is necessary to quote selectively from your statement of 18 November 2013:

The next thing I see Timmy run past me to outside and Joel had the axe in his hand. Joel was running with the axe and chasing Timmy. Joel has managed to jump on top of Timmy not far from a tree on the lawn.
I could hear Timmy screaming. I was at the back door and as we heard the screaming, me, Peter, Jess and Dylan ran up towards where Joel was. Joel was sitting on top of Timmy and Timmy's hands were out the front of him above his shoulders. Timmy was on his stomach. Timmy had his head up and Joel was strangling him and was on his back strangling him with both hands. Joel was also punching Timmy's head a couple of times. I come running up the same as Jess and I remember Jess's exact words, she said "he has special needs" I am screaming at Joel to get off him, I grabbed Joel and said he is only a little boy, I don't know where Dylan was.
I remember grabbing Joel's hands and trying to release them from Timmy's neck, Joel was wearing his metal rings on his hands, they were thick rings, I remember Dylan was there begging Joel to let him go. I then saw Peter run past. Peter got into his car and started it up.
I looked up and was still trying to pull Joel's hands away from Timmy's throat. I managed to get his hands off. I remember that Timmy had blood coming from his nose and mouth at this time. Joel was saying "Die cunt, die". I pulled Joel off him, I was able to get Joel's hands off and managed to slip my hands between Joel's hands and Timmy's neck.
Joel screamed at me, he was angry, he said fucking keep out of it you fucking stupid bitch. Joel then picked up the axe and whilst standing up hit Timmy who was lying on the ground with the blunt bit of the axe. It hit Timmy in the head. He hit him with an over the head chopping down motion a couple of times. Timmy was still alive at this stage, he was crying. I am crying and begging Joel to stop it.

Darren has then come out of the house and run over to where Timmy was. Darren was a bit dazed when he was in the hallway but when he ran outside he was angry. Darren said to Timmy "you fucking little cunt" he has then lent down and punched Timmy in the temple on the right side. Darren was punching into Timmy with his fists. He punched him repeatedly and he was punching him hard, I remember one blow hit him to the temple and knocked him out. Joel was standing up and had dropped the axe onto the ground and was just having a go at me for sticking up for Timmy.
Timmy was first facing up towards my car, I think out of shock he moved around in a half semi-circle. I saw Darren had picked up the axe and struck Timmy to the head with the blade side sharp end of the axe and I think other parts of the body. I saw Darren hit Timmy with the axe a number of times which I believe to be 5-6 times. Joel was just standing around and having a go at me cos I was sticking up for Timmy.
I was screaming and trying to pull Darren away. Darren then struck me with a back hand to my face, that is when he was on top of Timmy hitting him, and said fuck off or you and the kids are next. I remember Dylan my son screaming don't hurt my mum. Joel was then making demands to find his keys and mobile phone. I didn't want to leave Timmy.
Joel then sent me into the house to find his phone, at which time I left Darren and Joel standing next to Timmy. I remember the hallway was covered in blood, I was only in their briefly, Joel found his keys but no his phone.
Shortly before we left, Timmy was making a gurgling sound like a snoring sound where he was laying on the ground. At this time I believe the others being Rachel, Jess and Dylan had run off to the paddock. I remember leaning over Timmy and I was crying, I touched him on the back. He was still making snoring sounds at this time.
Darren and Joel had gone inside the house and walked back towards where I was with Timmy. Joel had dropped his keys and phone. Darren said to me, when I was over near Timmy, he said get the fuck up and get into the car. Joel looked at me so pissed off. Darren had the axe and baseball bat and it had blood on it. I was frightened for me and the kids. I didn't want to argue with Darren because I was so scared. Darren and Joel were then telling me to get into the car and drive off.

Darren told me to do what I was asked, to listen to him. He told me to drive straight back to my house, he told me to stop crying. I just froze. Darren had blood coming from his head and nose.
I drove straight back to my home at Richards Street. We did not stop anywhere on the way. When we arrived at the house, I quickly got my kids in, he told me to put them straight into bed. Joel came into the house, he was bleeding from the head and the arm. I was expecting Joel to help me but he wouldn't. Darren demanded I get Joel into the shower. Darren was talking fast, I got Joel into the shower, he was complaining that he was dizzy and sick. Darren said to stay with him. Joel did vomit in the shower. It was a very quick shower, we got out, I could hear Darren was on the phone, he did make a couple of phone calls. I don't know what was actually said. I put on the pyjamas, the clothes, my clothes had blood all over them, they were covered in blood especially the leg where I knelt down beside Timmy, I also had blood on my arm which wasn't mine.
Darren had then told me to wash the clothes to get rid of the blood. I did as I was told and washed them. I also remember that Joel shaved off his head at this same time and was clean shaven. He also trimmed up his face. I don't know why he did this.

Darren later called me on the telephone and told me not to say anything to the police. I am fearful of Darren and his family.

13 By your plea of guilty to Count 3 you admit that you knew or believed Joel Henderson and Darren Wilson to be guilty of a serious indictable offence and armed with this knowledge you carried out acts that impeded the apprehension, conviction or punishment of Henderson and Wilson. These acts include driving those men away from the Smythesdale murder scene, washing blood from Joel Henderson and washing blood-stained clothes at the direction of Darren Wilson. I also regard this as serious offending.

14 Whilst I have characterised your offending, particularly in relation to Charges 2 and 3 as serious offending, it is important, in my view, that it be evaluated against the objective evidence of the events of 5 January 2013 and also against what I accept to be your submissive nature. In short, every act alleged by the prosecution to constitute your offending on this day was carried out at the direction of either Wilson or Henderson. You were told to drive to Ms Isaacs' house and you did so. You were told to drive to RC's house and then Mr Williams' house and you did so. You were told to drive back to RC's house, then to drive back to your house and you did so. You were told to clean up Mr Henderson and wash the clothes and you did so. A consultant psychologist engaged by your solicitor, Associate Professor Carrol, has assessed your underlying personality as submissive and compliant. There is no evidence of any acute psychiatric factors that may have been operative as at 5 January 2013. However, you have a dependent personality, and you feel vulnerable to the outside world. Associate Professor Carrol opined that your level of intelligence and dependent personality made you vulnerable to being overborne by aggressive males. You have been in tumultuous relationships with violent and aggressive males in the past few years.

15 I accept that your personality and the irrational and aggressive behaviour of both Darren Wilson and Joel Henderson made it considerably more difficult for you to reject their demands than may have been the case for others of stronger and more worldly personality. You do not have a mental impairment and your moral culpability cannot therefore be reduced on that account. Any assessment of moral culpability must take into account all the relevant features that attach to the offending; these include but are not limited to mental impairment. I consider that your moral culpability is reduced by the aggressive conduct of Wilson and Henderson and its impact upon the quality of the decisions you made on that evening. Put another way, I accept that, absent the underlying atmosphere of violence propagated by Wilson and Henderson, and absent their direct demands of you, it is inconceivable that you would have offended in the way you have. I take this into account in your favour.

16 Associate Professor Carrol also opines that you suffer from a Post Traumatic Stress Disorder (PTSD), the precipitating event being the presence at the murder of Timothy O'Brien. This diagnosis is supported by your consultant psychiatrist Dr Thottappilill. You experience intrusive recollections of those events, nightmares, distress at exposure to relevant cues, hypervigilance, an exaggerated startle response and almost daily panic attacks. I accept that a term of imprisonment would be considerably more onerous for you than for a person not suffering from a disorder of this nature and extent.

17 At nearly 30 you have no prior convictions and you do not have any other outstanding criminal matters. You have three children aged 8 (Dylan), 6 (Sophie) and 1½ (Amelia). You are pregnant and your fourth child is due in August. You come from a sound law-abiding family. Your mother tragically died young but your father, despite debilitating injuries and illnesses, has remained very supportive and was present at your plea hearing, as was your sister Tracey. Mr Risstrom, on your behalf, also tendered a reference from another sister, Noelene McDonald.

18 A direct consequence of your offending has been that your role as a parent has been interrupted, perhaps permanently. Since 5 January 2013, your children have been in the care of their father. Since 3 April 2013, they have been the subject of a 12-month supervision order and you have had access to them twice weekly. Notwithstanding your very great parenting deficiencies on the relevant evening, I accept that overall you have been a good mother to those three children. You have not come to the notice of DHS before this incident, nor it seems to any other responsible authority.

19 Your family, through references and affidavits tendered on the plea, speak very highly of your commitment to your children and your parenting generally. I accept that your perception of the danger that you may lose your children has weighed heavily upon you. That perception would make any custodial sentence more onerous than otherwise it would be. I take this into account.

20 The prosecution accept that your pleas have been entered at quite an early stage. You are entitled to a sentencing benefit for your pleas of guilty. I also accept that you are genuinely and powerfully remorseful and I shall reflect this in the overall sentence that I will shortly impose.

21 If this was where the matter rested I would have no alternative but to sentence you to a significant term of actual imprisonment. The objective gravity of your offending, particularly on Charges 2 and 3, would require such an outcome. The community has a legitimate expectation that punishment and denunciation should await those inclined to assist offenders either in the commission of violent offences or in avoiding detection of those offences. Similarly, if this was where the matter rested, I would be compelled to give significant weight to the aspect of general deterrence.

22 The matter does not rest there however. You have made a statement to police setting out the evidence that you would be prepared to give at the trial of Henderson and Wilson. It is an eyewitness account of the murder of Timothy O'Brien. I accept that it is a complete and honest account. You have undertaken on oath to give evidence at that future trial. Mr Rochford SC, who prosecutes, accepts as I do that your evidence will be of significant value to the prosecution cases against Wilson and Henderson. The path ahead for you will not be easy but you have thrown your lot in with the community and you are entitled to a very substantial sentencing discount for doing so. This is sometimes called an informer discount. Your conduct in this regard reinforces my conclusions as to the depth and sincerity of your remorse.

23 After anxious deliberation I have concluded that it has tipped the balance in your favour. I have been persuaded that it is appropriate to impose a wholly suspended sentence in this matter. I am fortified in that conclusion by the prosecution concession that in all the circumstances a wholly suspended total effective sentence is within the range of sentencing options open to me.

Charge 1: I convict you and sentence you to 1 month imprisonment.

Charge 2: I convict you and sentence you to 6 months' imprisonment.

Charge 3: I convict you and sentence you to 18 months' imprisonment.

I direct that Charge 3 is the base sentence. I direct that 3 months of the sentence on Charge 2 be served cumulatively on the base sentence.

The total effective sentence is 21 months' imprisonment. That sentence is to be wholly suspended for a period of 2 years.

25 Section 6AAA of the Sentencing Act 1991 requires me to state the total effective period of imprisonment and non-parole period that I would have imposed but for your pleas of guilty. In the circumstances of this case this is an extremely artificial exercise. It will be apparent from my reasons that whilst your sentence has been reduced for your pleas of guilty, the decisive reduction has emanated from your cooperation with authorities and your undertaking to give evidence. But for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years' 6 months' imprisonment wholly suspended for a period of 2 years and 6 months. It is extraordinarily unlikely that a sentence constructed this way would ever be imposed. Accused's who plead not guilty tend not to qualify for an informer's discount.

26 A less artificial statement is as follows. But for your pleas of guilty, your cooperation with the prosecution and your undertaking to give evidence I would have sentenced you to a total effective sentence of three years' and six months' imprisonment with a non-parole period of two years.

27 I will make the disposal and DNA retention orders sought by the prosecution. In all the circumstances, particularly given your role in Charge 1 and your current financial circumstances, I decline to make the order for compensation sought on that charge.

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