Director of Public Prosecutions v Munn
[2020] VSC 251
•5 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0015
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS MUNN |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 August – 12 September 2019, 4 December 2019 |
DATE OF SENTENCE: | 5 May 2020 |
CASE MAY BE CITED AS: | DPP v Munn |
MEDIUM NEUTRAL CITATION: | [2020] VSC 251 |
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CRIMINAL LAW – Sentence – Murder – Standard sentence offence – 13 strikes to housemate’s head with hammer – Concealed body in car – Attempt to hide evidence – Trial – Guilty verdict – Very serious example of murder – Open prospects of rehabilitation – Remorse – Sentenced to 27 years’ imprisonment with non-parole period of 21 years – Crimes Act 1958 – Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Lewis with Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Mr A. Halphen with Mr J. Westmore | Criminal Lawyers Geelong |
HIS HONOUR:
Introduction
Nicholas Munn, on 12 September 2019, you were found guilty by a jury of the murder of Jason Fry on 9 April 2018. The verdict followed a trial that began on 26 August 2019.
The maximum penalty for the offence of murder is life imprisonment. It is a category 1 offence, and because this offence occurred after February 2018, it is a standard sentence offence.
Jason Peter Fry
Jason Peter Fry was born on 3 January 1977, and was 41 years old at the time of his death. He had four younger siblings. During his childhood, Mr Fry lived with his mother, stepfather and siblings in Whittington. He left home when he was 16 years old, and after high school, worked as a baker in Hamlyn Heights.
Mr Fry married Kristy Walker in 2004, with whom he had three children. They resided in Hampton Park, before moving to a farm in Catani until their separation in 2014. Whilst living in Catani, Mr Fry worked full time at a glassworks.
In November 2016, he returned to live in the Geelong area to be closer to his children. In December 2016, he began renting a factory-come-dwelling at 1C Seaforth Street, North Shore, which is where he died.
At the time of his death, Mr Fry was unemployed. He was a regular drug user and gambler.
Background to the offending
You and Mr Fry had known one another as teenagers. You moved into 1C Seaforth Street with him in March 2018, approximately three weeks prior to his death.
The factory consisted of a large open workspace fitted with a car hoist and a living area with two bedrooms, a kitchen and bathroom. It contained a large amount of tools, automotive parts and a number of motor vehicles. There was also a caravan parked in the front yard, which was occupied by father and son, Mitchell and Dylan Patterson.
On 23 March 2018, the property manager, Elie Freijah, issued Mr Fry with a third and final lockout notice as he was $3268.19 in arrears on the rent for the factory. Mr Freijah advised Mr Fry that he had 14 days to pay the outstanding rental amount or he would take possession of the factory.
In an attempt to pay the arrears on his rent, Mr Fry placed an advertisement on Facebook for the sale of his Toyota Hilux.
Circumstances of the offending
On 9 April 2018 at approximately 9.45am, Mr Freijah sent a text informing Mr Fry that lockout would be proceeding that day. Mr Fry replied that he was finalising the sale of his car and would provide the outstanding money later that day. They had a brief conversation on the phone, during which Mr Fry accused Mr Freijah of bullying him and not giving him enough time to pay rent.
Later in the morning, you went to the Patterson’s caravan, appearing agitated. You told Mitchell Patterson that you had an argument with Mr Fry, intended to sell his property and that Mr Fry no longer had a say in it. You also stated that you had given Mr Fry $2500 towards the overdue rent and claimed he had spent or gambled the money away.
Around 1.40pm, Mr Fry had phone conversations with a proposed buyer of his Toyota Hilux. He agreed to exchange the Toyota Hilux for a Mercedes Benz and $4000 in cash, telling the purchaser he needed the money urgently for rent. He agreed to attend her address in Truganina later that day. This is the last known communication from Mr Fry.
According to CCTV footage, his Toyota Hilux returned to 1C Seaforth Street at 2.10pm. He failed to attend the purchaser’s house that afternoon and did not respond to numerous texts and Facebook messages.
You murdered Mr Fry somewhere between 2.10pm and 5.07pm, the latter being about the time the lockout commenced. The prosecution case is that you murdered him by striking his head a number of times with one or more heavy steel tools, including a builder’s hammer, causing him fatal head injuries. It is contended that you were motivated by anger towards him, particularly for spending or gambling away the money you gave him for rent.
You do not dispute that you killed Mr Fry. Your case at trial was that you acted in self-defence upon a threat of Mr Fry attacking you, which was rejected by the jury. It is necessary for me to make some findings as to the circumstances in which you killed Mr Fry.
First, it is submitted on your behalf that it remains open and consistent with the jury’s verdict for a finding that you were confronted suddenly and unexpectedly by Mr Fry coming at you with a knife. During the trial, the prosecution relied on the evidence of Mikayla Butler, who stated that you told her of having attacked Mr Fry unprovoked, while he was facing away from you and looking at a screen.
Your counsel submits that the credibility and reliability of Ms Butler’s evidence was questionable, and that I should not act on her evidence in this regard. Conversely, the prosecution submits that Ms Butler’s evidence should be accepted, and also referred to the absence of defensive wounds on both Mr Fry and yourself in support of its case that you attacked him from behind. It further submitted that the significant injuries at the rear of Mr Fry’s head are inconsistent with claims that he was coming towards you when you struck him.
Secondly, your counsel concedes that the evidence supports a finding that you inflicted three blows against Mr Fry with a claw hammer. However, his submission is advanced in the face of up to 13 separate blunt force trauma injury sites to Mr Fry’s head. It is emphasised on your behalf that the evidence of Dr Michael Burke, forensic pathologist, was inconclusive as to how many incidents of blunt force trauma were inflicted intentionally, opposed to all but three occurring after his death. Your counsel submits that the evidence is not sufficient to support a finding that you inflicted more than three intentional blows.
On the other hand, the prosecution contend that you inflicted at least 13 intentional blows against Mr Fry’s head during your attack. It submits that your explanation at trial which involved a series of events occurring after his death; including his body rolling off the bed multiple times as you tried to assist him; his head hitting objects in the room; and you repeatedly dropping his body on a tow bar or tow ball as you tried to move him into a car, was entirely self-serving, hugely unlikely, and thus should be rejected.
Lastly, your counsel submits that it is open to the Court to find that you used only one weapon against Mr Fry. It notes that aside from the three fractures linked to use of a claw hammer, Dr Burke was unable to affirmatively conclude whether the other injuries were inflicted by a claw hammer or mallet. The later police investigation located a mallet with the hammer, which forensic testing has implicated in your attack.
In support of its argument, your counsel also relied on the DNA evidence led at trial which explained the possibility that Mr Fry’s DNA was transferred from the striking surface of the claw hammer to the striking surface of the mallet. It contends that this evidence needs to be considered with the evidence of the items being found together underneath some carpet beneath a nearby hoist, as well as your evidence that you had picked up the items at the same time, placed them in one hand and moved them to that position.
While the prosecution contends that two implements were used to inflict the injuries, it notes that this factual finding probably makes little difference in sentencing you. It is submitted that it would nonetheless make some difference, as to stop halfway and choose another implement as a better weapon would show a level of consideration.
The prosecution acknowledges the possibility of blood transference from the claw hammer to the mallet, however points to the fact that the blood was on the striking surface of the mallet. It also contends that you had no real explanation for why you hid the implements together.
In regard to the issue of provocation, I reject the suggestion that Mr Fry came at you with a knife prior to your attack on him. I accept the submissions of the prosecution, and its case at trial, that you attacked Mr Fry when he was unsuspecting and had his back to you. In support of this conclusion, I have had regard to the lack of defensive injuries on the both of you, the major injury sites towards the back and side of Mr Fry’s head, the evidence of your admissions to Mikayla Butler, the motive put forward by the prosecution and your post-offence conduct in your treatment of his body and belongings.
Furthermore, the evidence you gave of sitting with your back to Mr Fry, looking up and seeing a reflection in a window of him coming towards you with a knife, and you then turning, picking up a weapon and quickly defending yourself, should be rejected as it undoubtedly was by the jury. I am satisfied that this explanation was an improbable construct.
As to the number of blows you inflicted, I conclude that you struck Mr Fry as many as thirteen times in a deliberate manner. The evidence before the jury was that Mr Fry’s skull was massively damaged as a result of the blows, with pieces of his skull either missing or discovered at various locations. I do not accept your evidence that significant damage was caused by his body falling from the bed and car, and regard this as an implausible explanation.
Finally, on the basis of the evidence at trial and submissions on this issue, I am not satisfied that you used two weapons to attack Mr Fry. The evidence of Dr Burke does not permit a safe conclusion that a second weapon was used. Further, there remains the possibility of blood transference as the two implements were later located together in a piece of carpet. There is nothing to suggest that a hammer could not have been responsible for the totality of the damage caused to Mr Fry.
In any event, whether there were three or 13 deliberate blows, and whether a second weapon was used, makes little practical difference to the sentence that must be imposed. In the circumstances of this case, you struck Mr Fry multiple times in a vicious attack with a hammer, being a heavy steel builder’s tool designed to efficiently strike objects with extreme force. In doing so, you caused heavy structural damage to his skull, which led to his death.
Your actions following the offending
The first significant matter to note is that at no stage did you attempt to obtain medical assistance for Mr Fry. Instead, you sought to conceal his death and your actions up until the point where his body was found. As will become evident, that course of action involved a series of lies, deceit and attempts to dispose of his property.
The lockout of 1C Seaforth Street commenced shortly after 5.00pm. When Mr Freijah spoke to you and queried about Mr Fry’s whereabouts, you told him he was inside the factory, and when he could not be located, stated that he must have “run out the back” or “jumped the back fence”. Mr Freijah and his colleague erected eviction notices around the premises, locked the factory and the front gate, and left the property at about 5.30pm.
You returned to the property shortly after 6.00pm and gained access by jumping the front gate. You unlocked the front door and entered the factory, subsequently working to try and conceal Mr Fry’s body, which still remained in the factory at this time.
At approximately 8.01pm, you left the premises in the Toyota Hilux and went to the home of Rhiannon Hardy, a 15 year old girl who you had been spending time with prior to these events.
At around 6.00am on the following day, you drove the Toyota Hilux back to 1C Seaforth Street and climbed over the fence. You left the premises briefly to obtain cleaning agent from Ms Hardy’s home, before returning shortly before 8.00am.
At some stage in the morning, Mitchell Patterson observed you from his caravan in front of the premises. He saw you at the rear of a blue Holden station wagon, which Mr Fry had been repairing for a friend, which was backed up to the roller door of the factory. He watched you squat down, then lift and push something into the boot of the vehicle. This was Mr Fry’s body. It appeared to him that the object was heavy, based on how you were lifting it. In fact, you had concealed Mr Fry’s body in carpet, a doona and a tarpaulin and moved it from the bedroom to the station wagon with a mechanics trolley and aluminium ladder as a ‘stretcher’.
At approximately 10.20am, Mr Freijah arrived at the premises and observed that the padlock on the front gate had been cut and another padlock was beside it. He also noticed that the station wagon had been moved, and you were loading items into its side windows. You told him that you were collecting property for Mr Fry and moved the station wagon to the street. Mr Fry was, of course, dead at this stage.
Mr Freijah took photographs while he was at the property, including some of the station wagon. These photographs show a large amount of property inside the rear of the vehicle, including what appears to be a section of carpet underlay. The prosecution contended that Mr Fry’s body was amongst the items in the rear of the car.
Mr Freijah also took photographs of Mr Fry’s bedroom, which show it in a state of disarray. These photographs depict a large cupboard lying on the ground on its front, the bed standing on its end and a missing section of carpet.
On 11 April 2018 at approximately 10.46am, you returned to 1C Seaforth Street. You collected Mr Fry’s Toyota Hilux and drove it to Ms Hardy’s home, unloading two televisions and other electronic items from the vehicle.
Shortly before 2.00pm that day, you and Ms Hardy’s friend, Shane Broadby, began travelling to Lara in the Toyota Hilux with the intention of selling a PlayStation 4 which allegedly belonged to Mr Fry. The car broke down on the way there, and after multiple attempts to restart it, you abandoned it and got a lift back to Ms Hardy’s home from a friend.
Later, you returned to 1C Seaforth Street and had a conversation with Dylan Patterson. You told him you had seen Mr Fry earlier that day and had dropped off his Toyota Hilux to him. You also said that you and a friend were going to take photos of Mr Fry’s belongings to upload them on the internet and sell them for him.
Dylan drove you back to Ms Hardy’s home and you returned to the factory with Ms Hardy just after 10.30pm. Ms Hardy noticed that it had a strange smell and the bedroom was in disarray.
On 12 April 2018 at approximately 1.00am, you left the premises with Ms Hardy in the station wagon. It is the prosecution’s case that Mr Fry’s body was inside the vehicle at this time, where it remained until it was found.
Later that afternoon, you offered to collect Ms Hardy’s sister from Ballan. You took a car belonging to Ms Hardy’s mother, leaving Ms Hardy with the keys to the station wagon but instructing her not to drive it. Nonetheless, Ms Hardy and Mr Broadby drove the station wagon. Inside the car, Mr Broadby noticed that it smelt like rotting food or rubbish. At one point, they opened the boot with the intention of transporting a bicycle back home for Ms Hardy’s brother. As they moved items around in the boot, the roll of carpet fell partly open, revealing Mr Fry’s lower leg.
Ms Hardy and Mr Broadby panicked. Mr Broadby pushed Mr Fry’s foot back inside the carpet and slammed the boot shut. They returned back to Ms Hardy’s home and parked the vehicle on the street.
You returned to Ms Hardy’s residence shortly after 6.00pm and observed that the blue Holden station wagon had been moved. You became angry with Ms Hardy and yelled at her. You then left her home in the station wagon. Before departing, you were seen to open the boot and appeared to check the contents in the back of the car.
You drove the station wagon and parked it on the northern end of Seaforth Street. You walked to the caravan outside the premises and had a conversation with Mitchell and Dylan Patterson, during which they told you that they had been inside the factory earlier that day and discovered blood in Mr Fry’s bedroom. You said you had not noticed anything on the previous occasions you had been there.
Mitchell and Dylan Patterson took you to the factory and showed you a patch of what appeared to be blood on the floor of the bedroom. You denied knowledge of the source of the blood and suggested that they should clean it up and that you, “knew what to do”. They agreed to help you.
The three of you placed a tarpaulin on the floor and started cleaning the bedroom. You used clothing and towels to clean up the blood, discarding used or blood-stained items onto the tarpaulin as you went. You passed larger items with blood to Mitchell Patterson, who wiped the blood away. He also wiped blood spatter from the cupboard, a small desk and the back wall between those items.
At one stage, you provided Dylan Patterson with some disposable surgical gloves and asked him to move some of the clothing in the bedroom to the tarpaulin, as you were dry retching from the smell inside the bedroom.
You then rolled up a piece of blood stained carpet from the bedroom floor. Assisted by Dylan Patterson, you wrapped it in a blanket to prevent the blood dripping out and placed it on the tarpaulin with the other items. You then tied the tarpaulin using rope and ratchet straps and wrapped it in further blankets. You also used solvents and thinners to clean the bare bedroom floor.
You, Mitchell and Dylan Patterson then used a trolley to transport the tarpaulin package to the front of the property. You threw it over the front fence and loaded it into Mitchell Patterson’s SUV car.
With Mitchell Patterson driving, you all travelled towards the You Yangs. You suggested an area near there to dispose of the items, and directed Mitchell Patterson until you came to the end of a gravel road.
The three of you then unloaded the tarpaulin package from the car. Dylan poured petrol on the package and you lit it with a cigarette lighter. Once the package was alight, you all maintained the fire by stoking it and adding dry branches until all items were sufficiently burnt. I note that the remains of the fire were later found by a park ranger on 14 April 2018, including pieces of wire which appeared to be clothes hangers, a broken mobile phone and an ice pipe.
Once the items were destroyed by the fire, you all drove back to the factory premises and the Pattersons returned to their caravan. Before leaving, you told them that you were still going to “sort out” Mr Fry’s property on his behalf and that they could have first pick of his items.
Early morning on 13 April 2018 you moved the station wagon a short distance away on Sea Breeze Parade, approximately 285 metres from 1C Seaforth Street.
At around 7.41am, you went to speak with Mitchell Patterson at the caravan and you both entered the factory. He took some tool sets and left, but you remained and sorted through Mr Fry’s property until approximately 2.30pm. You left and returned to the factory with Ms Hardy shortly before 3.00pm. You took photos of items belonging to Mr Fry as well as a number of his items.
By 14 April 2018, Mitchell and Dylan Patterson, and Rodney Whitehand, being the tenant from 1D Seaforth Street, were aware of the blue Holden station wagon on Sea Breeze Parade. They recognised it as the vehicle Mr Fry had been repairing for a friend. At various stages, they inspected the vehicle from the outside and noticed a strong smell coming from inside it. They had become concerned about the whereabouts of Mr Fry and the nearby presence of the vehicle. That evening, Dylan Patterson and Mr Whitehand went to the station wagon and deflated the front driver’s side tyre, in an effort to prevent it from being driven away.
On 15 April 2018 at approximately 12.00am, you and Ms Hardy’s brother attended 1C Seaforth Street and collected items belonging to Mr Fry to be sold. You returned to the premises at approximately 6.45am with Mr Broadby. You once again entered the factory and spent time organising the tools and items you planned to sell later that morning.
You cut the chain on the front gate of the property shortly after 9.00am. You later returned to the premises alone at around 11.00am and met up with your friend, Travis Tonkin. You then sold Mr Fry’s property to various persons who attended the premises in response to the advertisements for sale.
Mr Whitehand observed these comings and goings from the factory and became concerned that you were selling Mr Fry’s property without his permission. He called the police a short time later, reporting that he had concerns for Mr Fry’s welfare and that it appeared you were stealing property.
Police investigation
On 15 April 2018 at approximately 11.30am, a police unit arrived at 1C Seaforth Street in response to Mr Whitehand’s call. Police entered the property and spoke to several males present, including you.
Mr Whitehand approached the police and directed them to check the blue Holden station wagon at the northern end of Seaforth Street. This led to the discovery of Mr Fry’s body in the rear of the station wagon, covered by a tarpaulin and roll of carpet. His body was badly decomposed and maggot infestation was present.
During this time, you closed the front roller door to the factory, ran out the back, jumped the back fence and fled the scene. You made your way on foot to Ms Hardy’s home and requested a lift. At approximately 12.03pm, Ms Hardy and her mother dropped you off at the North Shore Railway Station.
Two days later, on 17 April 2018 at approximately 1.00pm, you were arrested at an address in Lara and charged with Mr Fry’s murder.
I note that six days had elapsed from when you killed Mr Fry to when his body was discovered. Over that time, you engaged in a deplorable course of conduct designed to cover up his death and your offending.
Post-mortem examination
On 15 April 2018, forensic pathologist Dr Michael Burke conducted a post mortem examination on Mr Fry. He observed that Mr Fry’s body was badly composed and that third stage maggots were present.
Dr Burke determined that the cause of death was a head injury with multiple skull fractures. He noted that some lacerations to My Fry’s scalp had a “somewhat curved quality” and that there were two circular depressed fractures to the skull. He opined that the characteristics of these injuries raised the possibility that a claw hammer was used to strike Mr Fry’s head.
Procedural history
As noted above, this matter was committed for trial on 26 August 2019. You pleaded not guilty to murder. The sole issue at trial was whether the prosecution could exclude the possibility of self-defence. On 12 September 2019, the jury returned a verdict of guilty to the charge of murder.
Victim Impact Statements
I received six Victim Impact Statements, all of which I have carefully read and considered. These statements express the devastating impact of your actions.
Cory Edmondson
Cory Edmondson, brother of Mr Fry, describes the heartbreak and hopelessness he feels about losing the chance to reconcile with his older brother. He expresses anger at how Mr Fry will never get to see his children grow up, and how his death has uprooted the lives of those who loved and were loved by him.
Mr Edmondson, who lives in the United States, describes how being away from his family throughout this horrific ordeal has left him with an overall feeling of uselessness and anxiety as to how this will impact his relationships with his family.
Daryl Edmondson
Daryl Edmondson, step-father of Mr Fry, explains how he considers Mr Fry his son and describes the guilt he feels for not giving him more guidance in his formative years. He talks of how difficult it is not to think about his death on a daily basis, and the sadness he feels for Mr Fry’s siblings and mother who changed after his death.
Mr Edmondson describes his son’s murder as especially heinous given the cowardly manner in which you took his life.
Jennifer Edmondson
Jennifer Edmondson, Mr Fry’s mother, describes the complete devastation she has felt from her son’s death. She talks of how her once abundant life has been shattered and how she is now a shell of her former self.
Ms Edmondson speaks of how her son’s murder strained her relationship with her husband, led her to rely heavily on her children and caused her to push away friends. She explains how she has difficulties sleeping, experiences horrendous nightmares and is now on high doses of antidepressants. Ms Edmondson describes how she no longer feels safe.
Ms Edmondson expresses immense pain and anger at how you took away her son’s life over almost nothing, and at the extra pain you caused by denying your actions. She talks of how hiding Mr Fry’s body robbed her of the opportunity to say a final goodbye to her son.
Kylie Postill
Kylie Postill, sister of Mr Fry, describes the close relationship she shared with her brother throughout their whole lives. She talks of the immense guilt she feels about not helping him clear his rental debt, which she will live with for the rest of her life.
Ms Postill explains the trauma of having to clean out the factory, being the scene of her brother’s murder, and how she suffers flashbacks from this experience. She talks of how it led her to feel emotionally and physically exhausted, which impacted her relationship with her new baby and caused financial struggles.
Ms Postill speaks of the horrific experience of going through the trial and being confronted by the graphic details and photos of her brother’s injuries. She reports that she is now on anti-depressants for the first time in her life.
Rachael Edmondson-Jennings
Rachael Edmondson-Jennings, Mr Fry’s sister, describes their tight bond and the unwavering support he gave her throughout her life. She also describes the close relationship Mr Fry shared with her two sons.
Ms Edmondson-Jennings explains the horror of having to inform her parents of her brother’s death and take her mother to the scene of the crime. She speaks of how her mother’s screams will haunt her for the rest of her life. She expresses how her father died not knowing the sentence that would be handed down for his son’s death.
Ms Edmondson-Jennings details the impact of Mr Fry’s death on her children, particularly her youngest son. She describes his anxiety and panic whenever she is a few minutes late and her struggle to reassure him. She notes how her son’s father and her own father passed after Mr Fry’s death, and how much she missed his love and strength during that difficult time.
Ms Edmondson-Jennings explains the health and financial struggles she has experienced following Mr Fry’s death, and how the trial and media attention surrounding the case has re-traumatised her and her family.
Kristy Walker
Ms Walker, ex-wife of Mr Fry, details the impact of his death on their three children. She talks of how all children have yet to fully come to terms with the fact that they will never see their father again and have been seeing a psychologist since his death.
Ms Walker describes how Mr Fry used to teach and play football with their sons and how they no longer attend certain football events without him and face questions from other children about where he has gone. She talks of her daughter’s sadness at the realisation that she will not have her father with her on her wedding day. Ms Walker emphasises that, most of all, the children miss being hugged and tickled by their father and hearing his laugh.
Personal circumstances
Background
You were born on 15 March 1978, and are now 42 years old. You grew up in Geelong and are the youngest of three children. Your parents separated when you were three years old, in circumstances of extreme family violence. You experienced severe physical and emotional abuse from your father. You also suffered at the hands of your older brother throughout your formative years, who had an attention deficit hyperactivity disorder marked by violent tendencies. He committed suicide in 2011. You have maintained a close relationship with your mother and sister. I note your mother was frequently present in support of you during your trial. You have never married and you have no dependants.
As a result of your difficult upbringing, you attended four primary schools and five high schools. You were a target for bullying and you have stated that your exposure to violence at home led you to respond to bullying by fighting. At one stage, there was DHHS involvement in your family circumstances. In 1994 you left school prior to completing Year 10, despite being of reasonable academic ability.
In 1995, your close friend, Ricky Balcombe, was murdered in the Market Square Mall in Geelong. You were present and witnessed his body convulsing in a pool of blood. Further, you were prevented from attending his funeral after being arrested and questioned by police. It is submitted on your behalf that these events had a profound and long-lasting impact on you.
You experienced a downward spiral in circumstances after Mr Balcombe’s murder, involving drug use and criminal behaviour. You obtained a chef’s apprenticeship in 2001, but only completed 12 months training before going to prison.
Your circumstances became more stable in later years. From 2005 to 2014, you worked as a podiatrist for horses in the Yarck area. During this period, you reportedly lived a relatively quiet life at your mother’s house, in which you did not associate with criminals and largely desisted from drug use.
In early 2016, you suffered heart problems and underwent an open heart surgery to remove a tumour. However, you experienced setbacks in your recovery, which impacted on your ability to secure lasting employment.
Shortly after, Karl Hague was arrested in relation to Mr Balcombe’s murder. In January 2018, you were subpoenaed to give evidence in his trial. You left your fixed accommodation to avoid police and couch-surfed with friends until you were offered accommodation by Mr Fry at the Seaforth Street property, approximately three weeks before his death.
Psychological report
The Court received a report authored by clinical psychologist Carla Lechner, dated 15 November 2019. I note that as of 29 October 2019, being the date she interviewed you, you still maintained you had acted in self-defence in killing Fry. Ms Lechner’s opinions should be read in light of this stated position.
Ms Lechner is of the opinion you present with the following:
(a) Major Depressive Disorder, with a score in the extreme range on the Beck Depression Inventory, leading to the conclusion you are ‘clinically depressed’;
(b) Post-Traumatic Stress Disorder, including hyper-vigilant and hyper-arousal related symptoms to a ‘moderate-severe level’; and
(c) A personal history characterised by Complex Developmental Trauma, which undermined your subsequent vocational, social, emotional and behavioural development.
During your psychological assessment, you reported a number of traumatic experiences. These included abuse by your father and brother; your brother’s suicide in prison; the suicide of a friend; losing your nephew in a motor vehicle accident; being exposed to the murder of Mr Balcombe in 1995; and your heart attack in February 2016. In particular, you described your life as ‘going downhill’ after the death of Ricky Balcombe.
In the period leading up to the death of Mr Fry, Ms Lechner opined that the arrest of Karl Hague, his pending trial, and the resurfacing of media coverage relating to Mr Balcombe’s death, caused a resurgence of post-traumatic symptoms. At the time of the assessment, she opined that you were still experiencing moderate to severe symptoms and a moderate level of impairment in functioning.
Based on your interview, Ms Lechner concluded that you show no evidence of psychotic processes. She opined that you are of average intelligence and have a capacity for reflective and consequential thinking, when not emotionally aroused and/or substance affected. You feel extremely depressed when thinking about your life, as well as socially isolated.
Ms Lechner was of the opinion that you posed an overall moderate risk of future violent offending at the time of the assessment. She stated that this risk level would be lowered through treatment of your mental health problems, particularly your PTSD symptoms.
Substance abuse
You reported to Ms Lechner that your alcohol consumption has been limited as you were deterred from drinking due to your father and brother being alcoholics. You noted that you drank a lot as a child between 12 and 13 years old, though not much since then.
You also reported smoking cannabis once a week from 17 years old, to help you sleep following Mr Balcombe’s death. Your cannabis use increased after being released from youth detention, and following release from your first time in prison, you were consuming up to 14 grams every day. You reported that your cannabis use decreased in later years to a couple of grams a day.
Further, you reported using heroin for the period between 1996-1997 and 2004-2005. You also stated that you had used speed and ice “on and off, not consistently” and had “tried” GHB.
Physical health
As above, you have experienced serious health problems in recent years. In February 2016, you were admitted to hospital with heart issues and swelling to your legs and subsequently underwent open heart surgery. You were discharged following an apparent successful surgery, but readmitted the following day with fever, sweats, pain and swelling at the wound site.
At the plea hearing, your counsel raised how you had been admitted to hospital for heart consultations whilst on remand. I note that while you were previously taking Warfarin, you are not allowed that specific medication whilst on remand, and are currently taking aspirin.
Criminal history
You have a prior history of offending beginning in 1995, being the year that you witnessed Mr Balcombe’s death. With respect to violent offending, you were sentenced to three and a half years’ imprisonment in 2002 for intentionally causing injury and intentionally causing serious injury. I note that this was the last of your violent offending before the present offending.
Further, there was a significant gap in your criminal history between 2005 and 2014, which coincided with your employment as a horse podiatrist. In 2014, you were imprisoned for 50 days for the possession of heroin and received a 12-month Community Corrections Order (CCO) for a number of offences including theft of a motor vehicle and possessing cannabis and an imitation firearm. I note that you completed the CCO with full compliance. In 2015, you were fined for theft.
As emphasised by your counsel, your last instance of violent offending occurred 17-18 years ago, thus rendering it somewhat less in significance to the sentence to be imposed today.
Sentencing factors
Standard sentence
As you committed the murder of Mr Fry after February 2018, the standard sentence of 25 years’ imprisonment applies.[1] This does not mean that you must be sentenced to that term of imprisonment. Rather, I am required to have regard to the standard sentence in sentencing you.[2] Further, I must only have regard to sentences previously imposed for murder as a standard sentence offence,[3] which I will discuss shortly.
[1]Crimes Act 1958 (Vic) s 3(2)(b).
[2]Sentencing Act 1991 (Vic) s 5B(2)(a).
[3]Sentencing Act 1991 (Vic) s 5B(2)(b).
These requirements are not intended to affect the instinctive synthesis approach to sentencing.[4] Rather, the standard sentence operates as a legislative guidepost in the sentencing process. It is but one factor which is required to be taken into account in the instinctive synthesis.[5]
[4]Sentencing Act 1991 (Vic) s 5B(3)(b).
[5]Brown v The Queen [2019] VSCA 286.
Nature and gravity of the offence
I am required to assess the nature and gravity of the offending you committed.
In Brown v The Queen,[6] the Court of Appeal stated:
... the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of ‘objective factors’. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.
[6][2019] VSCA 286.
Your counsel points to the following factors as being relevant to the assessment of the objective seriousness of your offending:
(a) Whether or not the fatal assault was provoked;
(b) The fact that the deceased was an adult male without evident vulnerabilities;
(c) The spontaneous nature of the conduct;
(d) The number of blows inflicted;
(e) Whether or not two implements were used;
(f) The duration of the conduct;
(g) The immediate assistance you report to have given Mr Fry, until it became apparent that he was deceased; and
(h) Your post-offence conduct in concealing of Mr Fry’s body and selling some of his belongings.
I have already made conclusions about a number of these matters and will not repeat them. I note the prosecution’s contention that the fact that Mr Fry did not have any evident vulnerabilities is of lesser significance in the sentencing exercise. Further, it is submitted that your evidence of providing some assistance to Mr Fry should be rejected by the Court.
Your counsel submits that your offending occurred spontaneously, given the absence of any evidence of planning, pre-meditation or forethought. Further, that there is no suggestion that Mr Fry was lured to the bedroom for any specific purpose. Moreover, your counsel disputes the financial motive alleged by the prosecution. It points to your knowledge of the pending sale of the Toyota Hilux, the proceeds of which would have been sufficient to cover the outstanding rent with the balance going to repayment of the debt owed to you. However, I note that there is no evidence of an agreement between yourself and Mr Fry for the proceeds of the sale to be used to pay off his debt to you.
The prosecution submits that your awareness of the sale of the car does not wipe your history of having given Mr Fry money which you believed he wasted, and which angered you. Further, it submits that, if the financial motive is negated, the Court is left to accept that you killed Mr Fry for no apparent reason.
Further, your counsel submits that there is no evidence that the killing of Mr Fry was sustained or protracted. The prosecution contends that while the killing itself may not have been of a particularly long duration, it was long enough to deliver at least 13 blows, which it characterises as a vicious attack.
It is conceded on your behalf that concealing Mr Fry’s body in the station wagon, which you continued to use for a short period before abandoning it, is an aggravating factor. While acknowledging it is likely that this conduct derogated from the claim of self-defence, it is submitted that it might be viewed as being interwoven with significant panic.
In regards to the nature and gravity of offending, I am satisfied you viciously assaulted an unsuspecting man. In my opinion, the nature and extent of the catastrophic injuries which caused Mr Fry’s death indicates you had an intention to kill him with repeated blows from the hammer against his skull.
I accept that the attack was not sustained beyond the time it took to inflict the blows that killed him. Nevertheless it was still a severe attack, albeit that it occurred over a relatively contained time frame.
I also accept that it was a spontaneous attack committed in explosive anger, and that there is no evidence of planning beyond the moments leading to the attack in the bedroom. There is no evidence that you lured him into the room for this purpose.
Further, I am not prepared to accept that you killed Mr Fry for monetary gain. In my opinion, your later efforts to use and sell his possessions was you taking advantage of the possessions he left behind.
Nevertheless, I conclude that, overall, your extensive post-offence conduct amounts to an aggravating factor, making the nature and gravity of the offending more serious than it otherwise might have been.
In summary, I conclude that you committed a very serious example of murder with the use of extreme violence and in the absence of any justification. I am satisfied that you killed your friend as result of the belief he had wasted the money you had lent him.
Culpability
In keeping with the jury’s rejection of your defence of self-defence, I am of the view that your culpability was in the mid to upper range. Whilst no reliance on the principles set out in R v Verdins[7] was advanced, it was submitted on your behalf that your symptoms of hyper-vigilance and hyper-arousal provide some support and explanation for your offending. It was submitted that these mental health issues provide relevant context to your offending, and the circumstances in which you will serve your period of imprisonment.
[7]16 VR 269.
While there was no realistic causal connection between your mental health issues and your offending as explained in Verdins, I am prepared to accept that these issues provide a relevant context in which the offending occurred. I am prepared to accept that these issues also provide a context in which your time in imprisonment will be served, and that hyper-vigilance and hyper-arousal will to some extent make the serving of your time in prison more onerous than it otherwise might have been.
I also regard it is as appropriate to take into account the opinions of Ms Lechner as to your psychological conditions being part of your personal circumstances.
Remorse
You pleaded not guilty to the charge of murder, and the matter proceeded to trial. You gave evidence on oath that you acted in self-defence in attacking Mr Fry. By its verdict of guilty, the jury have rejected that defence.
Notwithstanding the approach you took, your counsel submits that a measure of remorse is still apparent, as demonstrated by your evidence of your immediate reaction to killing Mr Fry, your conduct during the trial, your expressions of remorse to others and your acceptance of the fact that you took Mr Fry’s life. It is contended that you are devastated that your actions resulted in the death of someone you regarded as a friend.
Your counsel also points to the fact that, since your arrest, you have never sought to deny that you killed Mr Fry. In these circumstances, it is submitted that your plea of not guilty does not necessarily extinguish remorse.
Ms Lechner observed that you expressed deep sadness and extreme distress about Mr Fry’s death at your hands and how it has impacted his family.
The prosecution submits that the Court should be wary of ascribing any remorse to you. In oral submissions, it addressed the evidence you gave during the trial that you looked at yourself in the bedroom window after you attacked Mr Fry, did not want to see your reflection in the circumstances of what you had done, and thus closed the curtains. It was argued that I should reject this evidence as being a constructed explanation for why the curtains were closed in photographs taken shortly after the events, when your version of events involved you seeing Mr Fry come at you with a knife in the reflection in the window.
Further, the prosecution contends that your expressions of remorse to Ms Lechner should be seen in light of the fact that you largely repeated to her the version of events rejected by the jury. The prosecution submits that the Court should reject other expressions of remorse in Ms Lechner’s report on the basis that they are put in general terms, particularly those relating to Mr Fry’s family.
As to my conclusion about remorse, I found the evidence you gave about why you closed the curtains to be unpersuasive. Other aspects of your evidence going to important matters in the trial were also unpersuasive. However, in all the circumstances and despite your claim of self-defence, I do accept that you feel sorrow for the devastating consequences of your behaviour. I accept that you regarded Mr Fry as your friend and that you regret having killed him. In my opinion the apparent disconnect between your friendship and your violent actions is explained by your anger towards Mr Fry, and a loss of control.
In assessing your remorse, I have been troubled by the extent you went to cover up your crime and deceive people. You told many lies to create the impression that Mr Fry was still alive, cleaned the scene of the crime, burned and disposed of items in the bush, used his personal property, and attempted to sell them for cash for yourself.
However, you left his body in the boot of a car that you could clearly be associated with around the time of the offending, in circumstances where it would inevitably be found. You reported to Ms Lechner that in the immediate aftermath of the killing, you did not know what to do and did not call the police because of your history with them. Ms Lechner described your post-death actions difficult to fathom, and I am inclined to agree with that conclusion.
Despite your apparently callous approach following Mr Fry’s death, I am nonetheless prepared to accept that you are sorry for having killed your friend. I am unable to affirmatively conclude exactly what the motivations for your post-offence conduct were, which may have assisted with my assessment of your rehabilitation prospects. I do note, however, none of these actions afford you any credit whatsoever.
Sentencing practices
As noted, this offence falls within the standard sentence scheme and I must only have regard to sentences previously imposed for murder as a standard sentence offence.[8]
[8] Sentencing Act 1991 (Vic) s 5B(2)(b).
Your counsel provided the Court with a table of relevant murder cases which included R v Brown,[9] R v Robertson,[10] R v Leigh,[11] R v Willis[12] and R v Marshall.[13] As the accused pleaded guilty in all cases, your counsel relies on declarations made under s 6AAA of the Sentencing Act 1991 to demonstrate what the head sentences would have been had the offenders not pleaded guilty.
[9][2018] VSC 742.
[10][2019] VSC 145.
[11][2019] VSC 378.
[12][2019] VSC 398.
[13][2019] VSC 601.
Your counsel acknowledged the case of R v Marshall as being the most factually similar to the present case. In that case, the accused lived with the victim in the lead up to the murder and inflicted multiple strikes to the victim’s head with a weapon. The attack was held to be completely unjustified, vicious, and gruesome. Lasry J sentenced the offender to 25 years’ imprisonment with a non-parole period of 17 years and 6 months, being seventy percent of the head sentence. But for his plea of guilty, he would have been sentenced to 28 years’ imprisonment with a non-parole period of 21 years.
The prosecution noted R v Willis as an outlier case, with s 6AAA declaration of 24 years’ imprisonment with a non-parole period of 18 years. It is submitted, however, that this case involved significant Verdins considerations which moderated the moral culpability of the accused to a significant extent. As the present case does not enliven any Verdins principles, the prosecution submits that R v Willis is not relevant in terms of current sentencing practices. As such the prosecution points to cases where s 6AAA declarations fell between 28 to 35 years’ imprisonment.
Your counsel concluded its written submissions by contending that the head sentence proportionate to the objective gravity of your offending falls towards the lower end when regard is had to previously decided standard sentencing cases, and referenced the s 6AAA declaration of 24 years imprisonment, as noted above. Conversely, the prosecution submits the submission that your conduct falls towards the lower end of gravity should not be accepted. However, it acknowledged that the prosecution case is based on significantly different facts than those contended by the defence, and that the appropriate sentence will depend on the factual findings I make.
As above, I have had regard to the cases to which I was referred in order to consider current sentencing practices for standard sentence cases of murder. I have also had regard to the standard sentence of 25 years imprisonment, and the applicable maximum penalty. I note that in each case to which I was referred the offender pleaded guilty. I indicate that in my assessment of these cases I have considered the principles applied in these cases, as well as the sentences imposed, and have not restricted comparisons to declarations made pursuant to s 6AAA of the Act.
Sentencing purposes
Pursuant to s 5(1) of the Sentencing Act 1991, I must only sentence you to the following specified purposes.
General deterrence, denunciation and just punishment
There is no doubt that considerations of general deterrence, denunciation and just punishment are primary sentencing purposes in a case of murder. These are particularly important in the present case, given the brutal nature of your conduct against an unsuspecting man.
It is important that the sentence I impose strongly denounces your actions, and sends a clear message to the community that such behaviour is not to be tolerated.
Specific deterrence, protection of the community, and rehabilitation
Your counsel submits you have relatively good prospects of rehabilitation, relying on the following factors:
(a) The support of your family, noting that your mother and sister regularly attended the trial with your mother having provided a character reference;
(b) Your reasonably good work history, particularly from 2005 to 2014 when you worked as an equine podiatrist;
(c) Your ability to desist from offending for significant periods, as evidenced by the gap in your offending from 2005 to 2014;
(d) The absence of any chronic substance abuse issues;
(e) Your limited prior history for violence;
(f) The productive use of your time in custody.
Since your arrest in April 2018, you have been remanded in custody at the Melbourne Remand Centre. During this time, you have used your time productively and been actively working in both horticulture and industries, acted as a unit representative and peer listener, and undertaken a number of short courses. Your counsel also contends that you have abstained from all drug use.
Further, you have been held in protective custody as a result of your strained relationship with Karl Hague and his associates. Your counsel anticipates that this arrangement is likely to continue, which would place significant restrictions on your ability to leave your cell and engage in courses. As such, it is submitted that prison will be more burdensome on you.
Your counsel acknowledges Ms Lechner’s opinion of you as posing a medium risk of re-offending in a violent way. It is conceded that this has some relevance to the weight to be attached to specific deterrence and the assessment of your prospects of rehabilitation.
The prosecution expresses reservations about your rehabilitation, pointing to your criminal history and Ms Lechner’s assessment of your future risk of violent offending. In oral submissions, it was noted your risk level is relevant to an assessment of the need to protect the community.
I accept the opinion of Ms Lechner as to your risk of violent re-offending. While this conclusion would ordinarily impact on specific deterrence and your prospects of rehabilitation, it will hopefully be affected by treatment in custody to address your mental health issues. Further, I accept the existence of protective factors against further violence, such as the support of your family.
The sentence I will impose will necessarily be lengthy and you will be considerably older by the time of your release and likely a quite different person. As such, it is too difficult to judge who you will be when released back into the community.
In all the circumstances, I regard your prospects of rehabilitation as open and reasonable and do not consider that a particular emphasis on specific deterrence or protection of the community is warranted in your case.
COVID-19
Since you were found guilty of the offence of murder, and since the subsequent plea hearing, COVID-19 has emerged with its effects now having wide and devastating impact in many countries across the world. In Brown v The Queen,[14] the Court of Appeal acknowledged the rapidly evolving situation whilst expressing hesitation in expressing a general statement of principle regarding how sentencing courts should deal with the effects of the crisis. However, the Court accepted that:
[T]he situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[15]
[14][2020] VSCA 60.
[15]Ibid at [48].
It is not possible, nor appropriate, to predict the course of prospective events, or speculate about future possibilities. However, I am prepared to accept in your circumstances of hyper-vigilance and hyper-arousal that you may well carry an extra subjective burden of anxiety and stress about incarceration possibly increasing you to a higher risk of infection from the disease that might apply to the general community. At the same time, I am conscious that as of the sentence passed by Lasry J in R v Beattie,[16] on 1 May 2020, ‘there remains no diagnosed case of the virus within the prison system’,[17] and noting as of that date, the threat of infection has not passed.
[16][2020] VSC 229.
[17]Ibid at para [53].
Conclusions
You used a hammer to kill Mr Fry, a terrible weapon easily capable of inflicting major traumatic damage to a person’s head, which it so clearly did. Your actions were spurred by anger at him for having lost the money you lent. However, I accept you acted spontaneously and made the decision to kill him only a short time before you acted.
Your counsel submits that leaving Mr Fry’s body so close to the scene of the crime showed the absence of any real thought, presence of mind or sophistication. It is contended that your actions were in poor judgment and marred by sheer panic and angst towards the unexpected consequences of your spontaneous act against Mr Fry.
While noting that such actions may shed light on your state of mind at the time, the prosecution submits that your incompetent efforts to cover up the crime do not go far in terms of mitigation. It is contended that your post-offence conduct was still significant as Mr Fry’s body was only found when it was in such a decomposed state that his family could not view it. In oral submissions, the prosecution argued you made a solid attempt at covering up the crime, and pointed to the fact that you moved Mr Fry’s body, hid it in a car, burned items, conducted a chemical clean-up in the bedroom and hid items in the factory. It was also argued that your actions hardly indicated panic, as you continued to drive around with Mr Fry’s body in the back of the car, opposed to trying to get as far away from it as possible.
In my opinion, your post-offence conduct can be distinguished from examples where careful and planned efforts at concealing a crime have been successful. However, your efforts should still be denounced as completely unacceptable, even though it is likely your involvement in death of Mr Fry would have inevitably been discovered. You cannot receive a benefit for being ineffective at concealing the crime you committed. You caused delay in locating his body, depriving his family of a proper opportunity to see him and grieve, which added considerably to their trauma. At the very least, your conduct lacked decency and humanity.
It is to be remembered that you contested the charge and a trial was conducted, with the jury finding you guilty after rejecting your defence of self-defence. However, as I have explained, I view your prospects of rehabilitation as not extinguished and still open. I accept that you feel remorse for having killed your friend in such a brutal, violent and unjustified manner.
Sentence
After considering all relevant factors and purposes, the sentence I impose is a period of imprisonment for 27 years.
Section 11A of the Sentencing Act 1991 requires me to fix a non-parole period of at least 70 percent of the head sentence imposed upon you, unless it is in the interests of justice not to do so. In your case, having assessed the evidence and submissions advanced by both parties, there is nothing in the interests of justice that persuades me that the non-parole period should be below 70 percent of the figure of 27 years. In all the circumstances, the period you will serve before being eligible for parole will be 21 years.
Section 5B(5) statement
Section 5B(5) of the Sentencing Act 1991 provides that I must ‘refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence’.
The task required does not suggest the need to attribute ‘particular mathematical value’ to matters significant to the formation of a sentence.[18] It does, however, require that I identify ‘the facts, matters and circumstances’ which bear upon my judgment as to the appropriate sentence. I have done this in some detail above.
[18]Muldrock v R (20110 244 CLR 120, 132 [29]; see also R v Brown [2018] VSC 742 [69]-[73].
The sentence I have imposed is higher than the standard sentence for the offence of murder. Having identified and considered what I regard to be the relevant factors in assessing the appropriate sentence, particularly my assessment as to the very serious nature of the offending and your degree of culpability, I have formed the conclusion that this figure is appropriate.
PSD declaration
I declare that you have served 749 days of pre-sentence detention, not including this day.
Orders
I have signed the forfeiture order.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Criminal Liability
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Sentencing
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Murder
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