The Queen v Volpe [2018] VSC 797

2 It is now my responsibility to sentence you for the murder of Mr Harris. The maximum penalty for murder is life imprisonment.

3 Mr Harris was born in Lilydale in Victoria on 19 July 1977. He was 39 years old when you murdered him. He was the youngest of four children and grew up in the Yarra Valley region, living with his family in Healesville and attending school in Yarra Junction.

4 In his adult years Mr Harris lived predominantly in the Dandenong area, where he worked a variety of labouring jobs. He was a father to one child, a daughter, who was in her mid-teens at the time of his death.

5 You were introduced to Mr Harris by Paul Bugeja, a mutual friend, a few days before his death. After the introduction, you spent the following days in each other's company. On occasions, you were both together at Mr Bugeja's property in Montrose. This property had become something of a halfway house, with a number of people living there, and coming and going on a transient basis.

6 By the early morning of 17 September 2016, you and Mr Harris had fallen out. You were observed at the Montrose property to be angry with him. You told those present that Mr Harris had threatened your family. Around mid-morning that day, you told occupants at the house, including Mr Bugeja, that you had 'bashed' Mr Harris, also stating, 'I'm gonna knock this cunt'.

7 At approximately 11.30am, you drove a blue Ford Laser registered to one of your sons to the Arndale Shopping Centre in Croydon. Mr Harris was also there, and you and he started fighting in the carpark. Witnesses observed you and Mr Harris 'chesting' each other, and you telling Mr Harris to take his belongings out of your car, and to 'get out of my life'. You were seen to be very angry with Mr Harris at this time.

8 As Mr Harris walked away from the scene, you obtained a bladed weapon from the car and followed him for some distance. You appeared to have thought better of it and returned to the car. However, you then followed Mr Harris again for a short period of time, before returning to the vehicle and driving away erratically. Mr Harris telephoned Mr Bugeja, who collected him and, after running a number of errands, drove him back to the Montrose address.

9 Mr Harris and Mr Bugeja returned to the Montrose property and parked in the street at about 2.00pm. By that time, you were already back at the house, and were standing on the nature strip, rummaging through a pile of belongings.

10 The windows of Mr Bugeja's utility vehicle were open, and the two of them remained in the car, with Mr Bugeja in the driver's seat and Mr Harris in the passenger seat. Mr Harris called out to you that he was sorry. He was upset, tearful, and apologetic. You did not accept his apology and appeared to still be angry at him. From the driver's seat of the car, Mr Bugeja saw you moving your hands together, apparently holding something. You then approached the vehicle and told Mr Harris, 'you don't threaten my fucking family and get away with it'.

11 You came to the open window of the front passenger seat where Mr Harris was seated. You reached in and stabbed him once to the upper chest. It appears likely that you used a knife to stab him. Mr Bugeja observed the strike as a forceful punch. He did not see a weapon and was unaware that you had in fact stabbed Mr Harris. He wound up the windows and locked the doors to prevent further conflict, and you walked away.

12 Mr Harris did not die immediately. He started to become upset and said he felt unwell. He told Mr Bugeja that he had only wanted to help people. Still unaware of the stabbing, Mr Bugeja left Mr Harris in the car, and went to tell you to apologise to him. You acknowledged that Mr Harris did not look well, and suggested that you should drive him to a hospital. You then took the keys of Mr Bugeja's utility and drove away from the Montrose house, with Mr Harris in the passenger seat.

13 You drove towards the Angliss Hospital in Upper Ferntree Gully. The car was captured on CCTV driving past the hospital several times, but never stopping there. You did not assist Mr Harris to get medical attention.

14 A short time later you drove into a small reserve used as a carpark for the Upper Ferntree Gully Kindergarten. You dumped Mr Harris' body on the grass, before speeding away in the utility.

15 At approximately 3.00pm that afternoon, the body of Mr Harris was located by a passer-by and his two young sons. He was declared deceased at the scene by Ambulance services approximately 15 minutes later.

16 Meanwhile, you drove back to the Montrose property. Later that day, you repeatedly told Mark Cox, Mr Bugeja's partner, that you were sorry for 'bringing the heat' on the house, but that Mr Harris had threatened your family.

17 On 18 September 2016, you saw media reports relating to the incident and panicked. You told others that you wanted to drive to Brisbane. You insisted that the utility be cleaned and the seat covers removed, and ensured these steps were carried out.

18 On 17 September 2016, members of the Victoria Police Homicide Squad attended the location where Mr Harris' body was discovered. Police soon suspected it was Mr Bugeja's utility that had been in the location at the relevant time.

19 On 19 September 2016, police executed a search warrant at the Montrose property, where they located car seat covers drying there.

20 Shortly before 9.30pm on 19 September 2016, you were arrested. You were charged with the murder of Mr Harris in the early hours of the following day and remanded in custody.

21 On 6 October 2016, police executed a further search warrant at the Montrose property and recovered two blades from an incinerator in the backyard. During the hearing of the trial, the prosecution alleged that you had burnt these knives in an attempt to cover up your offending.

22 On 18 September 2017, Dr Yeliena Baber from the Victorian Institute of Forensic Medicine, conducted a post mortem examination. The cause of Mr Harris' death was determined to be a single stab wound to the chest.

23 The prosecution was unable to establish the precise time of Mr Harris' death. It is clear enough that he was alive when you left the Montrose property, and that he was most likely deceased by the time his body was located by passers-by.

24 On 20 September 2016, you were charged with the murder of Mr Harris.

25 The matter was committed for trial on 24 May 2017, and the first trial commenced before Macaulay J on 5 September 2017. On 27 September 2017, the thirteenth day of trial, the jury was discharged due to the illness of one juror and the personal commitments of another. You had also been subject to an assault while in custody. These issues arose unexpectedly during the course of the trial. This first trial was well advanced and had reached the stage of closing addresses. I have taken into account that you endured a trial that could not be concluded, through no fault of your own.

26 On 8 May 2018, the second trial for this offence commenced before me.

27 Murder is the most serious offence brought before the courts. The following discussion concerns how your offending fits within the wider range of offences of this kind. In making conclusions about this matter I do not seek to diminish the sense of loss felt by the tragedy of Mr Harris' death. I acknowledge that this offence has caused tremendous pain, and will discuss the victim impact statements shortly.

28 By returning a verdict of guilty to the charge of murder, the jury found you intended to kill or cause really serious injury to Mr Harris at the time you caused his death. On an assessment of the evidence before the jury, I am not satisfied you intended to kill Mr Harris when you stabbed him. In my opinion, the jury's verdict is consistent with the finding that, rather, you intended to cause him really serious injury. The fatal injury was a single stab to the chest; it was not a prolonged or persistent attack, and it appears to have occurred in a matter of seconds.

29 While you met Mr Harris only a short time before the murder, it appears a significant disagreement developed between you. Some of the evidence at trial suggested that you were angry about a threat he made in respect of your family. I accept there was animosity between you on the day of the murder, largely evidenced by the altercation at Arndale Shopping Centre and your comments to various witnesses. Of particular significance, at the shopping centre, you were seen holding at least one bladed weapon and walking towards Mr Harris, before driving away erratically.

30 While your motive for murdering Mr Harris remains somewhat unclear, the anger demonstrated during this incident likely contributed to your later actions. I am able to safely conclude that you were angry at Mr Harris, and that this anger was intense and persisted over a number of hours on that day. Whether Mr Harris had in fact issued threats against you or your family does not matter as much as your belief that he had. I find that you did hold that belief.

31 Whilst you were heard to make threats about Mr Harris to other people, and were seen to argue with him in the shopping centre car park, it appears that your stabbing of Mr Harris was nevertheless spontaneous. There is no evidence of planning or premeditation, or that you lay in wait for him. The evidence suggests that your decision to stab Mr Harris was made quickly and in a state of anger, after seeing him arrive back at the Montrose property. Your spontaneous stabbing and the of intensity of your anger appears to have occurred in the context of your complex personal background and circumstances, which I will describe later.

32 In determining the gravity of your conduct, I also have regard your actions following the stabbing. As outlined above, you drove around with Mr Harris in the passenger seat for approximately 30 minutes, passing a hospital several times, without seeking any medical attention. You then dumped Mr Harris' body on the ground near a kindergarten, leaving it to be discovered by a passer-by and his children. These actions aggravate the seriousness of your conduct.

33 However, I do accept the submission made on your behalf that that you were intending to take Mr Harris to a hospital for medical assistance. The prosecution did not contest this. In my opinion, it is likely you realised that Mr Harris died at some point during the journey to seek assistance for him, and your decision to dump his body was borne out of panic at the realisation of what you had done.

34 Taking all the circumstances into account, your offending falls at the lower end of gravity of the offence of murder. This conclusion is consistent with the submissions made by your counsel, and accepted by the prosecution. It reflects the nature of the single stab injury, and the spontaneity and speed of your actions.

35 I received victim impact statements from Shardee Harris, Mr Harris' daughter; and Tamara Brooks, Shardee's mother and Mr Harris' former partner.

36 Ms Harris was eighteen years old at the time of writing and is the only child of Mr Harris. She wrote of feelings of loss and emptiness and reflected on the many life milestones she will not be able to share with her father. Ms Harris described the severe depression and social isolation she has experienced. She wrote of the challenges of enduring two criminal trials, and missing school days to attend court. She has been left with regret and sadness that she has lost the opportunity to build a close relationship with her father.

37 Ms Brooks described her immense grief and shock when learning of Mr Harris' death. She described telling her daughter that her father had been murdered as one of the hardest days of her life. She wrote of her sadness in observing Ms Harris become isolated from friends and family. Ms Brooks mourns the absence of Mr Harris in their daughter's life, particularly for special occasions. She also wrote of the ongoing disruption to her work, sleep and mental health, as she deals with Mr Harris' death and supports her daughter.

38 These two statements articulate great pain and loss. It is clear that your actions have caused much suffering for those who loved Mr Harris, particularly for his daughter who has lost her father at a young age.

39 You were born in October 1959 in Melbourne and are 59 years old. You were largely raised in Queensland with your two brothers. You had a disrupted education, attending many different schools and experiencing behavioural difficulties.

40 Your childhood appears to have been chaotic and traumatic. You report that you were raped when you were eight years old, resulting in significant emotional and enduring suffering. You have also experienced periods of homelessness, been a user of illicit drugs, and engaged in criminal activity, all as a child.

41 In the early 1980s you fathered two children. Around 1993, you met your second wife, Julie, and had eight children together. You have enjoyed a committed and loving relationship with Julie, although your drug use has caused tension, particularly over the period leading up to the death of Mr Harris.

42 Prior to this offending, you were not engaged in regular employment. However, in the 1980s and 1990s, you managed cleaning and maintenance businesses.

43 I received a copy of a psychological assessment by consulting psychologist, Luke Armstrong. The report, dated 15 October 2018, was supplemented by a letter dated 16 October 2018 and Mr Armstrong's evidence before me.

44 Mr Armstrong assesses your cognitive functions to be in the low to average range, and your academic testing placed you at a primary school level.

45 Mr Armstrong's opinion is that you suffer from a complex range of mental health issues. He reported that you present with features consistent with Post Traumatic Stress Disorder (PTSD), including aggressive outbursts, reckless behaviour, and hypervigilance, which seems to have resulted from a rape you report occurred when you were a child. Mr Armstrong described your struggle with ongoing nightmares and recollections, and opined that this trauma has likely contributed to your drug use. He noted you have displayed chronic suicidal ideation, which he believes to be linked with these nightmares.

46 Mr Armstrong notes that the use of illicit substances is a factor in the ongoing manifestation and intensity of your PTSD, but your condition is not wholly attributable to the physiological effects of substance use.

47 Mr Armstrong also identified that you presented with a spectrum of Personality Disordered Problems, namely features of a Borderline and Anti-Social Personality, which should be understood as secondary to a traumatic upbringing and overlap with symptoms of PTSD, including:

• Unstable interpersonal relationship patterns with extremes of idealisation and devaluation;
• Persistent and markedly disturbed or unstable identity;
• Impulsive self-damaging behaviours;
• Inappropriate, intense anger and lack of control of anger.

48 Significantly, Mr Armstrong concluded that if you feel threatened, your 'reaction or retaliation will be disproportionately intensified by the legacy of PTSD'.

49 Two neuropsychological reports were also filed, dated 16 March 2012 and 15 May 2014. You were referred to Arbias, a specialist service for individuals with an acquired brain injury (ABI), as you were experiencing symptoms such as memory loss and concentration difficulties following a fall in 1998. Mr Armstrong considered these reports, and noted that they present paradoxical findings as to your cognitive functioning. The 2012 report found it was highly likely you had an ABI, while the 2014 report argued that the testing and self-reports were insufficient for such a diagnosis. On the basis of the evidence before me, I am not able to determine you suffer from an acquired brain injury.

50 Mr Armstrong reports that you have engaged in polysubstance abuse from the age of 10 or 11, on a daily or at least weekly basis. By age 15, you had developed a daily habit of injecting heroin. You then developed a preference for amphetamines, injecting heavily though your twenties, often at least once a day. It appears you attended Odyssey House Victoria on two occasions, but left before benefiting from treatment.

51 You reported to Mr Armstrong that your drug use contributed to the end of your first marriage. Upon meeting your current wife, Julie, in the early 1990s, you were motivated to end your cycle of drug use and crime. Mr Armstrong reports that you were able to abstain for weeks at a time, but would eventually self-medicate with illicit drugs as the memories of your alleged rape resurfaced.

52 In the five years prior to this offence, you continued to struggle with drug use, particularly methamphetamines. You admitted to Mr Armstrong that you completely lost control, in the one to two years before your arrest. Mr Armstrong reports that your descriptions are consistent with a Stimulant Use Disorder and a pattern of polysubstance abuse.

53 Overall, you presented to Mr Armstrong with a complex constellation of factors, which appear interwoven and interrelated, and collectively contribute to a degree of impaired mental functioning. It appears your mental functioning was this way impaired at the time you committed this offence, and on an ongoing basis.

54 In R v Verdins,[1] the Court of Appeal set out a series of principles which must be considered in formulating an appropriate sentence when an offender presents with impaired mental functioning ('Verdins principles').

55 Your counsel submits that a number of the Verdins principles should influence your sentence due to your diagnosis of PTSD. Specifically, it was submitted that:

(a) your impaired mental functioning reduces your moral culpability for your offending;

(b) the weight given to the sentencing purposes of general deterrence should be moderated;

(c) the weight given to specific deterrence should be moderated; and

(d) your condition may mean the sentence imposed will weigh more heavily on you than it would on a person of normal health.

56 For the first three factors to apply, there must be a connection between your impaired mental functioning and your moral culpability. In your case, your propensity to overreact when you feel threatened, and inability to make calm and rational decisions, must be shown to have contributed to your commission the offence. The degree to which your mental condition contributed to your offending will also be relevant to any moderation of general or specific deterrence.

57 Counsel for the prosecution submitted that it is not clear that the Verdins principles identified have application in your case. It was submitted that Mr Armstrong's diagnosis of PTSD is combined with an identification of the issue of substance use, which cast doubt on the causative connection of your impaired mental functioning. It was further submitted that his ultimate opinion includes aspects of impaired functioning which do not enliven the Verdins principles.

58 The prosecution conceded that, if I were to conclude the Verdins principles are not enlivened, your diagnosis and symptoms could be taken into account in the instinctive assessment of the appropriate sentence.

59 I am satisfied that sufficient evidence has been placed before the court to enliven the Verdins principles. While acknowledging you present 'as a very complex case', Mr Armstrong concluded it was probable that:

in separating his symptom profile into Drug Addiction and Personality Disorder, one can better understand a chronic underlying PTSD condition ... In severe cases like Mr Volpe, it is often difficult to make a distinction between Personality Disordered behaviour and PTSD. However it is my opinion that your client presents with compelling symptoms of the latter that would justify a diagnosis.

60 Mr Armstrong went on to conclude that if you feel threatened, your reaction or retaliation will be disproportionately intensified by the legacy of PTSD. In this context, his opinion was that you can display poor judgment and make decisions that lead to problems with the law. In evidence he said that your exaggerated startled responses make it clear that there is 'more than just a personality disorder going on'.

61 In respect to whether the sentence imposed is likely to weigh more heavily on you than it would on a person of normal health, Mr Armstrong stated:

If he remains untreated within an incarcerated environment, it is my opinion that his psychiatric status will deteriorate. [He] reports that the frequency of the distressing dreams has in fact increased in the past few months. Suicide ideation is chronic for [him], I believe the experience of nightmares and suicide ideation are linked.

62 Although I conclude your mental functioning was impaired to some degree at the time you killed Mr Harris, I do not consider it a major factor that causally contributed to the commission of the offending. There is no suggestion that your mental state was such that you did not know the nature and quality of your conduct, or that you did not know what you did was wrong. Rather, you displayed intense anger in overreacting, perhaps to a perceived threat to your family, which is consistent with Mr Armstrong's diagnosis of PTSD and related personality disorder features. In my opinion, your level of mental impairment contributed to your offending in that it affected your ability to regulate impulsive and damaging decisions and conduct.

63 In these circumstances, I will allow some moderation to the degree of your moral culpability for the offending, and to general and special deterrence in your case. I also accept, to a limited degree, that you are likely to find the sentence imposed will weigh more heavily on you than it would on a person of normal health.

64 It was further submitted on your behalf that the Court should exercise mercy in sentencing you, on the ground that your imprisonment is likely to cause hardship to members of your family and dependents. I was referred to a bundle of references provided by your family and friends, that clearly show you are a loved and valued member of a large family. Although it does not appear you were providing financially at the time, you took on a great deal of parental and household responsibilities.

65 However, it is well accepted that a sentence should not be moderated to account for family hardship unless there are exceptional circumstances. Although it is clear your family will miss you greatly and suffer while you are unable to contribute to the household load, I am unable to find this is far above the usual burden experienced by families of those sentenced. There is insufficient material to elevate this consideration to the standard of exceptional in your case.

66 Pursuant to s 5(1) of the Sentencing Act 1991 ('the Act'), I must only sentence you for specified purposes. I have assessed all the purposes contained in s 5(1) of the Act, the following being the most relevant in your case.

67 Your counsel acknowledged that punishment and denunciation are important factors, due to the inherent seriousness of the charge of murder. This is consistent with the prosecution's submissions, and I agree. It is important that the sentence I impose strongly denounces your conduct, and sends a clear message to the community that such behaviour is not tolerated.

68 The prosecution submits that your criminal history requires me to consider specific deterrence, and also raises concerns as to your prospects of rehabilitation.

69 I have considered your criminal history, and acknowledge that it is lengthy, dating back to 1981 in Victoria and 1977 in Queensland. I note that in 2008, you were convicted of unlawful assault. While you have committed further subsequent offences, they have not involved violence. Your counsel submitted that the murder of Mr Harris was uncharacteristic behaviour, which, when considered with your age, indicates that you have reasonable prospects of rehabilitation.

70 Whilst I remain wary of your substantial criminal history and almost lifetime substance abuse, I have concluded that your prospects of rehabilitation remain reasonably open. This conclusion is reinforced by a series of references about you that were provided in support of your plea, in particular, from your wife Julie. The letters attest to a man who is loved by his family, and will be missed. A consistent theme through the letters is that you will continue to be strongly supported by your wife and children who are devoted to you. The other theme is that you are a fiercely loyal and involved within the lives of your family members, and you are usually a compassionate man. I am confident that you will continue to have their support and this is something that is an important factor to your rehabilitative prospects.

71 The prosecution submits that your long term drug use and criminal history require that I take into account the protection of the community when sentencing you. You have a number of prior convictions, as well as issues concerning the abuse of drugs. You also have issues concerning your mental health that I have discussed. In the circumstances of having committed the offence of murder you will receive a significant sentence of imprisonment as a result of which you will be much older by the time you are released from custody. However, I have concluded your prospects of rehabilitation are not closed, and remain reasonably open. In your circumstances I do not regard the protection of the community as requiring significant weight to be given in the sentence that must be imposed.

72 You were found guilty by a jury after a contested trial. You approached the allegations against you on the basis that it was not you that stabbed Mr Harris, and that someone else was responsible for killing him. Accordingly, you are not able to point to the aspect of remorse to mitigate your offending.

73 I accept that in all the circumstances your offending should be assessed at the lower end of gravity for the offence of murder. This conclusion does not in any way diminish the fact that you killed another human being. The seriousness of the offence of murder is clearly demonstrated by the maximum penalty that applies to it, namely, life imprisonment. Although there was evidence of animosity between you and Mr Harris, I consider your actions to have been spontaneous.

74 You present with a complex constellation of mental health issues, and I have taken those into account as I have explained.

75 I have also had regard to a number of comparable cases, and have taken into account current sentencing practices for the offence of murder.

76 Taking into account all the circumstances I sentence you to 19 years' imprisonment. I will order that you serve 15 years before becoming eligible for parole.

77 I declare that you have served 816 days of pre-sentence detention.

[1] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').