The Queen v Wilson [2015] VSC 394

3 I have received three victim impact statements in this case, from Timothy O'Brien's mother Debbie, his sister Kelly and his step-father Peter Williams. I would describe them as restrained documents, in which they talk about how bereft they feel with the loss of Timmy. His inability to go on fishing trips with them, his lost hopes to travel to Tasmania and South Australia, not big ambitions, but ambitions that will never be met, the loneliness of him not shadowing the footsteps of Peter Williams, the sadness that overwhelms the house without his bright presence. Little things that remind each person who loved him, every day that he isn't there anymore. I have read those documents and will take them into account in imposing sentence, but I am sure they are as aware as I am, that nothing I impose in the way of a sentence upon you will ever bring their little boy back into their lives.

4 The murder of Timothy O'Brien occurred on 5 January 2013. At that time you were living in Ballarat with your parents and you were friends with a man named Joel Henderson and you knew a woman by the name of Lisa Trezise. Lisa Trezise had recently commenced a relationship with Joel Henderson and he was staying with her and her children in Richards Street Ballarat at the time of the death of Timothy O'Brien.

5 Timothy O'Brien was 14 years of age having been born on 8 September 1998 and was attending Ballarat Special School as a result of learning difficulties subsequent to his diagnosis with autism spectrum disorder. He lived with his mother Debbie, his sister Kelly and his mother's boyfriend Peter Williams in a house in suburb called Smythesdale, a small town about 20 minutes southwest of Ballarat.

6 Peter Williams and Timothy O'Brien were very close and were usually found together, with Timmy shadowing and helping Peter Williams in almost everything he did. Peter Williams himself had been educated at Ballarat Special School and was on a disability pension but aided and supplemented that income by doing odd jobs, mowing lawns, things of that nature. Peter Williams is your cousin.

7 Leading up to 5 January of 2013, the relationship between you and your cousin Peter Williams had deteriorated significantly to such an extent that you harboured considerable animosity towards him. Peter Williams had purchased, a motor vehicle that needed a motor replaced and, along with a couple of your friends you agreed to assist him to do that. I do not intend to go through the particular levels of animosity or the evidence that was given in respect to the behaviour of you and your friends in the early days of January at Peter Williams' home. Suffice it to say that on 3 January 2013, Peter Williams attended at the Linton Police Station to complain about your behaviour to a police officer. That officer arranged to meet you and told you that you were no longer welcome at the home of Peter Williams and that you should not go there. During that discussion you showed considerable animosity towards Peter Williams accusing him of various inappropriate things and stating at one point that you would kill him, although the police officer did not appear to take that very seriously. There was discussion about money owed and the police officer acted as an intermediary between you and your cousin, collecting and handing over some money to you.

8 Shortly before these events a young girl by the name of Rachel Curtis had moved into rental premises at Carlyle Street in Scarsdale, a short distance from Smythesdale where Peter Williams resided. It was a house at which Peter Williams had been involved in lawn mowing and doing odd jobs for the owner. Rachel was living there with two other persons, Jess Conry and Dylan Hamilton.

9 You got to know Rachel Curtis initially through her Facebook entries and had attended at her premises on the Thursday before this murder, the same day you were warned off by the Linton police officer. You had bought Rachel a mobile phone which was activated that afternoon and you were delivering that phone to her. Whilst you were at the property you spoke with Rachel Curtis about Peter Williams and both of you were complaining about him, albeit for different reasons. The possibility of Rachel Curtis luring Peter Williams to her premises and you then bashing him up was discussed on that occasion.

10 On the next night, Friday 4 January, you were out in Ballarat when at about 1:20am on the Saturday morning of 5 January, at your request, Lisa Trezise picked you up at the Entourage Bar in Mair Street Ballarat. She had with her two of her children, Dylan aged seven and Sophie aged five, who were in the backseat of the car. It was apparently a very hot night. Discussions were had between you and Lisa Trezise as to your new friend Rachel Curtis being in fear and that she wanted to come and stay in town and you convinced Ms Trezise to drive to Scarsdale to collect Rachel. It was her car and she was the driver. The two of you collected her boyfriend, Joel Henderson from Gillie Street Wendouree West and then drove to where Joel Henderson's mother lived, Joel also lived there off and on, depending on his relationship at the time. Henderson got out of the car, went inside for a short time and returned carrying an object. That object was an axe. You, on the way out to Scarsdale, stopped to get food and cigarettes, then proceeded to the home of a former girlfriend of Joel Henderson, in Wendouree. Henderson was apparently angry with her and after stopping outside the house quite a bit of damage was done to that house using the axe and some wood. It is irrelevant whether you were a participant or not as you are not charged with that offence and I do not intend to punish you for it. It merely forms part of the background, and demonstrates an awareness of the presence of the axe.

11 After the attack, the vehicle was driven to Scarsdale still with the two young children in the back. You told Lisa Trezise that you were going to bash someone up who lived up the road from Rachel. You asked Henderson if he would help you bash this person and he agreed. On parking the car, the children were left in the car, and you three adults went into the house. Henderson took the axe and a large knife into the house at that time and there was some talk among those inside the house about those items. There was then a discussion between you and Rachel Curtis about luring Peter Williams to the house and bashing him up. It is clear that, whilst they were not necessarily prepared to admit it in their evidence, some of the others must have had some involvement in those discussions, as became apparent from their subsequent actions. Rachel Curtis rang Peter Williams mobile phone a number of times but there was no answer and ultimately Lisa Trezise, Rachel Curtis and Jess Conry drove over to the Williams' house in Smythesdale.

12 Rachel Curtis, supported by the other two girls, asked Peter Williams to come back to the house to help them, saying they were frightened because they heard prowlers earlier and they had seen someone around the property. The three girls got back into the car with the children and Peter Williams got into his own car, joined by young Timothy O'Brien. Timothy having heard the story had armed himself with an aluminium baseball bat and a torch. It was close to 4 o'clock in the morning.

13 Peter Williams and Timothy O'Brien followed in their vehicle and on arrival, both vehicles parked in the yard to the side and rear of the premises. Williams and Timmy got out of their vehicle, headed towards the house followed by the three females. Timothy had the baseball bat and a torch. Peter Williams had only a torch. Williams walked into the back door of the premises and started checking the rooms. He got to a door leading to what was described as the children's bedroom and when he went to push the door open a man jumped out wearing a Betty Boop pillowcase over his head as a disguise. That person was you.

14 When you jumped out from behind the door, you started punching Peter Williams repeatedly to the face causing him to reel backwards with his nose bleeding. Williams was trying to hit back in self-defence and he may well even have landed some blows, that is not something I can determine. At this point, Timothy who could see his stepfather being attacked, went towards you and hit you a number of times to the head with the baseball bat, in all probability with all the force he could muster. It caused you to fall to the floor and to bleed. Joel Henderson was in the area and it would appear has observed what was happening and came towards where you, Peter Williams and Timothy O'Brien were located. He had the axe raised in his hands and Timothy O'Brien hit him as well with the baseball bat to the head and to the body including particularly one to the arm holding the axe, such that it caused him an injury and also made him initially drop the axe down and then raise his arms to protect his head, whilst not letting go of the axe or wood splitter. All of this happened in the area in the hallway outside the children's bedroom area and in the larger hallway space close to the bathroom. It was all quick..

15 A number of people saw what was going on and unsurprisingly gave slightly different versions of who was standing where and when. Despite those differing versions, I am satisfied, to the required standard of a number of matters including; that together with Rachel Curtis you devised the plan to lure Peter Williams to the house; that you attacked Peter Williams with your fists shortly after he entered the house whilst wearing the pillowcase as a disguise, that Timothy O'Brien hit you to the head to try and make you stop attacking his stepfather in which he was successful, that Joel Henderson came into that fray carrying an axe and Timothy O'Brien again reacted to protect his stepfather and himself.

16 Peter Williams ran outside to the back and was then involved in a confrontation there with Dylan Hamilton.

17 After those matters occurred, Timothy O'Brien also ran out the backdoor of the house pursued by Joel Henderson. Henderson still had possession of the axe and was carrying it whilst chasing him. At some point he has caught up with Timothy O'Brien and Timothy has ended up on the ground not far from the corner of the house and once again different people saw different things.

18 Again, what I am satisfied of, to the required standard' is that Henderson was on top of Timothy O'Brien when he was on the ground and at one point had his hands around Timmy's neck and looked as though he was trying to strangle him. He was then punching him to the head and both Lisa Trezise and Jess Conry yelled at him to get off, including Jess Conry yelling out 'Leave him alone. He is just a little boy, he has special needs'. Henderson moved off the top of Timmy who was lying on the ground crying and at one point stated to Timmy 'Die cunt die'. He then commenced to hit Timmy with the back of the axe, that is the blunt side of the blade, to the head, more than once. I am also satisfied that Timothy O'Brien was still alive because he could be heard crying and whimpering. Peter Williams in the interim has come out of the house and gone to his car obviously frightened and too fearful to attempt to stop what was going on. He left at some point, and I am unable to say whether it was before or after Timmy was dead. At the time that Joel Henderson was using the back of the axe to the head of Timmy, I am satisfied that your involvement included the following actions:

o That you came out of the house and approached the area where Henderson was standing and Timothy was lying and began punching Timothy to the head,

o That you were very angry, as could be seen by both your demeanour and your statements, including saying to Timmy 'You fucking little cunt' and other statements to indicate that you intended to punish him for hitting you with the baseball bat.

o That you then picked up the axe and using the sharpened blade side of that axe repeatedly struck Timmy, predominately to the head, and to a lesser degree to the body.

o That this went on for some time and the child suffered numerous chopping and crushing blows to the head most of which alone would have caused his death.

19 Timothy O'Brien suffered at least eight penetrating injuries to the right side of the head indicative of chopping type trauma. All of those were associated with extensive fractures to the skull and deep trauma to the brain. There were other injuries that were consistent with blunt force trauma consistent to the back of the axe to Timothy O'Brien's head and neck. He also had a significant injury to his right forearm and an amputation injury to the left hand which was consistent with a defence type of injury. The injuries were catastrophic, and he died where he lay next to the house in Scarsdale

20 Triple 0 had been called by the three occupants of the house, who had run away during these events occurring to the back paddock, Peter Williams had driven away and returned trying to obtain reception on his phone and ultimately called the Police, as did as other neighbours in the area.

21 You together with Lisa Trezise, Joel Henderson subsequently left the premises in Lisa's car and returned to Ballarat to the home of Lisa Trezise. The axe and the baseball bat were in the car and you removed both the axe and the baseball bat, washed those items and placed them in the shed at the rear of the premises of Lisa Trezise. You then made some phone calls and left Lisa Trezise's premises in a taxi at 5:56am.

22 At 11:25am that same morning, you contacted the Ballarat Police Station and reported that you had been the victim of a crime having been struck in the face by a young male name Timmy who had a baseball bat, stating that you had been at the premises when Peter Williams, Timmy and an unknown male arrived. You claimed that after hitting you, he also hit Joel Henderson with the same bat and had chased Henderson out of the house. You said that Henderson had defended himself in the front yard hitting Timmy with a piece of wood, all of which was entirely false.

23 At 12:15pm you were arrested at your home and interviewed at the Ballarat Police Station. In that interview you told the police it was all Henderson's idea and that he was the person who wished to bash Peter Williams and that you told him you would take no part in it, and had actually been in the bathroom/toilet area when Williams and Timothy arrived, and as you were about to walk out the door, you were hit to the head with a baseball bat by either Timmy O'Brien or Peter Williams. You claimed to have been knocked unconscious and remained so for six minutes, and that when you came around, Lisa Trezise told you to come outside because Henderson was belting Timmy. That you went outside and told Joel Henderson to stop. You told the police that Timmy was on the ground snoring which was a description of the noise he was making given by a number of people and you ultimately denied any involvement whatsoever in any attack upon Timothy. You maintained that stance throughout your trial.

24 Those are the circumstances relating to the first charge of which you were convicted being the charge of murder. In relation to the other two charges of which you were convicted, being charges of incitement to murder, the situation was that Ms Trezise who was charged with murder, and the assault on Peter Williams, had, by 18 November 2013, made a detailed statement to the police and become a Crown witness. Her statement implicated both you and Henderson in the murder and she was to plead guilty to assisting an offender and be dealt with by the court. Clearly her statement was provided to you, as is required in respect of all witnesses, and you became particularly concerned about the contents of her statement.

25 Matthew Bunning was also, like you, being held at the Metropolitan Remand Centre. He had arrived in prison in September of 2013 and had regular contact with you during the time you were held in the same unit. Before Christmas of 2013, you showed Bunning the statement of Lisa Trezise and asked for his opinion. Bunning, having been a police officer prior to being charged with a series of offences, told you that it was damaging to your case. On 24 January 2014 you were told you were about to be moved to Port Phillip Prison and you went to see Bunning and asked if he knew anyone who would be prepared to kill Lisa Trezise. You then continued on to say that if he got bail would he be prepared to kill Lisa Trezise. When he asked why you were asking him to do that, you indicated to him that he knew about forensics, was a smart man and could do it.

26 Later that day, Bunning decided he was going to pass on this information to the police and thereafter asked you for clarification about exactly what it was you wanted done. You told him that you wanted Lisa Trezise shot and that you would provide the firearm and pay $50,000 of which $10,000 would be paid as a deposit by your father. You indicated that there were particular firearms that could be used, a .38 and a 9 millimetre, both being in the possession of your father from whom he could collect those items. You provided information to Bunning on that day and subsequent days about matters such as the address of Trezise, how she looked, what school her children attended and other matters to help him to be able to commit the crime. Bunning gave the clear impression to you that he was willing to do what you requested. On 31 January you approached Bunning again and said that you believed that Peter Williams had to be killed as well and a price of $80,000 was agreed for the two murders. Drowning was discussed as a possibility due to Williams not being able to swim, and you provided Bunning with information about how to also locate Peter Williams. These discussions continued on and off in relation to both Trezise and Williams, with different plans being considered. Bunning was clearly seeking to help himself via this process and ensured that you provided to him items that were in your own handwriting and photographs that is items that could only be attributable to you. Being a police officer, he was undoubtedly aware of the need for corroboration. These items he posted out to either his solicitor or his parents and provided ultimately, to the police. Bunning cooperated with the police and your idea and plan was exposed. It was made clear to the jury that before they could convict you they had to be satisfied beyond a reasonable doubt that you actually intended Bunning to carry out the murders. Not a throw away line, not a joke, but seriously intended this to occur.

27 There are times when I struggle to understand the inhumanity of man towards man, and this is one of those times. Your actions, in taking an axe to the head of a disabled child who was already hurt, weeping and laying unresisting in the grass outside the house, because he had come to the aid of his step-father and stopped an unprovoked attack upon him by you, do truly beggar belief. You have hit him with the sharp side of the axe at least six times, but probably more. I do not care how intellectually disabled you are, you had lived 35 years in the community without being before the courts, all the experts agree that you understood then, and understand now, right from wrong, you knew that what you were doing was wrong, but you allowed your anger towards this child to overcome that knowledge of right and wrong.

28 Your actions are breathtaking, you lured this boy's step father to the house, fully aware that Timmy always went where his step father went, and then when you are prevented from carrying through your planned attack upon his step father you punish the child in this appalling manner. Your behaviour was barbaric and causes any right thinking member of our community to recoil in horror at your actions, and it is not necessary for me to continue to describe the gravity of your crime of murder, as the circumstances themselves make that clear.

29 I also have to take into account your personal circumstances.

30 You are the youngest of four boys. Your parents, Ray and Shirley Wilson, have been protective and supportive of you over the years and they remain so, having been present at court during your trial when possible. I have a report prepared by forensic psychologist, David Ball, dated 26 March 2015, in which he refers to a neuropsychological report prepared by Dr Rachel Hutchens, dated 12 April 2013. That assessment was performed at the request of your instructing solicitors shortly after you had been charged with the murder of Timothy O'Brien.

31 In terms of your educational history, the only material that I have been able to locate is contained within that neuropsychological report, which states:

Mr Wilson was born in Ballarat, where he attended school until the end of Year 7. He describes significant learning difficulties and believed that he had been diagnosed with an intellectual disability at around 14 years of age. He reported that he had moved between numerous mainstream schools, largely due to his academic difficulties, and described himself as "well and truly below average" across all subjects. He denied significant behavioural issues at school but stated that he had struggled to pay attention in class. He believes that he had repeated one year and had received assistance from aides, as well as individualised tutoring when attending a technical school in Year 7. He reported that his tutor had ceased working with him because he "was not learning enough". He reported that he was unable to read and write upon the completion of his schooling and thus had undertaken a literacy and numeracy course last year with Brace Education and Training. He reportedly obtained his driver's licence on his second attempt at a modified nonwritten test. After leaving school, Mr Wilson reported that he had assisted with family businesses (demolition, building, and in a second-hand business). He completed a security licence and crowd control course, but stated that he failed on his first attempt and had to study for six months with the assistance of his father in order to pass on his second attempt. He had worked as a security guard for approximately three years and denied any difficulty managing his work as long as he was given simple and clear instructions. He stated that he received additional income from a disability support pension. Prior to his incarceration, Mr Wilson reported that he was living at home with his parents and his son, aged three. He reported that his expartner had used illicit substances and had abandoned his son shortly after he was born. He had been placed in foster care for a short period of time until Mr Wilson's parents had adopted him. Mr Wilson stated that he was independent in basic activities of daily living but received assistance from his parents with instrumental activities of daily living (e.g. they usually accompanied him to the supermarket). He stated that he paid his parents for rent and board but otherwise had no financial obligations. His parents had been appointed as his financial power of attorney approximately three weeks prior to the assessment, however Mr Wilson reported that he wished them to have full power of attorney over all domains (ie. financial, lifestyle, and medical).

32 You reported to Dr Ball that you had attended school until year 8 level and had difficulties with both your social development and discipline. You told him that you were always getting into fights because you were bullied as a result of wearing thick glasses and your inability to read and write, and said that you always fought back. From the age of 16 you have received a disability support pension. You have also worked, predominantly in family businesses, up until your employment as a security guard. Initially the businesses in which you worked with your family was the reconditioning of wooden stoves until you were about 18 to 19. There was then a second-hand shop in which your involvement was doing the deliveries and pick-ups, which lasted about three years. You and your father also ran a business of selling firewood at different times in the Ballarat area, with you maintaining the role of deliveries and pick-ups, and then later another second-hand shop this time run out of Humffray Street in Ballarat. You had a significant role in that business as your father a had a stroke in 2001 and was, for at least 12 months, unable to work, and you were the main person responsible for the business. It continued on for another five years with the business being sold in 2006. You and your father then undertook scrap metal work.

33 In about 2010 you acquired a security guard's licence, that is, a licence to enable you to work as a security guard and crowd controller. You passed level two and three of the course, attaining the appropriate certificates. In light of your dyslexia and your inability to read and write it is to say the least surprising that even with coaching from your father you were able to pass both those certificates or alternatively it is a comment in itself on the ease with which these certificates are given out. Be that as it may, you passed and you commenced working part time as a security officer, which continued right up until the time of your arrest in January 2013.

34 Your neuropsychological testing found that you were illiterate, innumerate and a generally low functioning adult with a tested IQ of 65 placing you within the mildly retarded range and at the first percentile which means that 99% of the population would perform better on intelligent testing than you. The psychologist Dr Ball found that your impairment was congenital rather than acquired, that your intellectual impairment has been and will continue to be lifelong, that it will not remit and based upon your age and neuropsychological assessment he considers it unlikely that you will ever have the capacity to acquire functional numeracy or literacy.

35 You have had one significant relationship in your life with a woman by the name of Kylie. You were together with Kylie for 2 plus years, according to the information provided to the assessing psychologist and together you have a now five year old son. It would appear that shortly after the child was born Kylie abandoned him and you, the child was taken into care for a short time until your parents were able to effectively foster him and he now resides with them. You also resided with your parents and as a result you were involved in the upbringing of this child to a degree.

36 There is no doubt and I accept that you have a significant cognitive impairment as exhibited by your IQ of 65. Whilst that does not render you incapable of functioning in the normal world it does mean that you have a dull intellect, your reasoning is unsophisticated and you think in relatively concrete terms. As the psychologist stated at page 4 of his report:

As a result, he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives or giving sufficient time for the implications of a course of action to come to mind. Therefore Mr Wilson tends to be impulsive. He often makes poor decisions and frequently chooses his course of action based on short term considerations, such as anger or excitement, rather than on their long term consequences. He learns poorly and slowly from negative consequences.

37 The psychologist also found that you suffered from no personality or mood disorder, substance abuse disorder or any other severe clinical syndrome.

38 I am going to sentence you on the basis that this was not a planned murder, but one that grew out of the anger and frustration that you felt in being thwarted in your plan to attack Peter Williams, and instead ending up as a victim yourself. I accept that your intellectual impairment had a part to play in your offending, in that if you were not a person with such a dull intellect you may not be so impulsive and make such poor decisions, based on short term considerations, such as anger or excitement. That mitigates to a very slight extent the sentence that would be otherwise imposed, as this was not something beyond your control, you were the one who set the wheels in motion desiring some form of revenge upon your cousin, illegally and by a surprise ambush.

39 I consider that both personal and specific deterrence have a significant role to play in your sentencing, as well as protection of the community and the imposition of a just sentence commensurate with the terrible nature of the crime has relevance. I will balance those matters as I bound to, with your lack of criminal history, the issue of totality and your personal circumstances. Some amelioration of your sentence needs to be made to reflect your intellectual impairments, but in light of your ability to work, drive a motor vehicle, socialise, maintain a relationship, assist in the parenting of a child and generally participate in an unrestricted manner as a member of our community, that amelioration must be in my view of a quite minor level.

40 Your offending in relation to the incitement to murder charges is also very serious. Your counsel submitted that because you were saying this out loud to a number of people in the unit in which you were detained, and the other inmates often laughed at your statements, I should view the offences as being not very serious examples of incitements to murder. I cannot agree, your intention was clear, it was only your execution of the offences that was poor. There is no doubt that you again were taking a 'course of action based on short term considerations' as described by the psychiatrist, but this did not fade with time such as anger might, this was maintained over a period of time.

41 These are crimes that strike at the very foundation of criminal justice system. You wanted these two people dead, because of the evidence that they were proposing to give in your up-coming proceedings. That can't be tolerated in any society, particularly a society such as ours which is founded upon obedience to the law. The situation is that each of those additional crimes of which you have been convicted merit significant punishment, and some part of that punishment must be in addition to the offence of murder, as they are clear, distinct and separate from each other. What I have to bear in mind in that process is the issue of totality, and ensuring that the sentence is not a crushing sentence.

42 You are convicted and sentenced to imprisonment as follows:

43 I direct that 2 years of the sentence imposed on charge 4 is to be served cumulatively on the sentence imposed on charge 1, and that 1 year six months of the sentence imposed on charge 5 is to be served cumulatively upon the sentence imposed on charges 1 and 4, making a total head sentence of 30 years and six months. I direct that you are to serve a minimum of 26 years before being eligible for parole.

44 I declare that you have spent 955 days in pre-sentence detention.