Director of Public Prosecutions v Rider & Ong
[2023] VSC 466
•10 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0097
S ECR 2021 0052
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOSHUA RIDER & AARON ONG | Accused |
---
JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 June 2023 |
DATE OF SENTENCE: | 10 August 2023 |
CASE MAY BE CITED AS: | DPP v Rider & Ong |
MEDIUM NEUTRAL CITATION: | [2023] VSC 466 |
---
SENTENCE — Murder — Standard sentence offence — Two offenders, D1 (Rider) and D2 (Ong), members of the Mongols OMCG, carried out a carefully planned drive-by shooting on the Eastern Freeway — Multiple shots fired into deceased’s driver’s side door, striking deceased below the waist — Deceased had no criminal associations — Motive for murder unable to be determined — Both D1 and D2 charged with intentional murder — D1 pleaded guilty to reckless murder a couple of days before commencement of joint trial by jury — D2 ran his trial and was convicted of intentional murder — Whether reckless murder necessarily less serious than intentional murder — Whether ‘worst category’ murder — Whether D1 foresaw probability of death, not just really serious injury — Whether D2 party to an agreement to kill, not just to cause really serious injury — Harsher prison conditions whilst on remand because of pandemic — Inordinate delay between charge and sentence due to pandemic — Whether D1’s plea of guilty entered at first reasonable opportunity — Whether D1 remorseful — Greater utility of D1’s plea due to pandemic case backlogs — Whether Verdins principles 5 and 6 applicable to D1 — Whether Bugmy principles applicable to D1 — D1 has a more extensive criminal history than D2 — D2’s prospects of rehabilitation better than D1’s — Parity/Disparity considerations — Avoidance of crushing sentence — Bugmy v R (2013) 249 CLR 571 — DPP v Elliott & Fares [2022] VSC 554 — R v Mihayo [2014] VSC 652 — Mohamed v R [2022] VSCA 136 — Surtees v R [2022] VSCA 42 — Tones v R [2017] VSCA 118 — Verdins v R (2007) 16 VR 269 — Wheldon v R (2011) 31 VR 297 — Worboyes v R [2021] VSCA 169 — Sentencing Act 1991, ss 5, 5B, 6AAA and 11A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC with Mr T Bourbon | Office of Public Prosecutions |
| For Joshua Rider | Mr D Dann KC with Mr T Antos | Marcevski Lawyers |
| For Aaron Ong | Dr M Gumbleton | Theo Magazis & Associates |
HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
On 9 November 2019, at approximately 2am, Paul Virgona, aged 46, left his home in Croydon for work. He had his own business called Virgona Fresh Produce and he was on his way to the Epping Markets. He drove his work van onto Eastlink, city bound. At approximately 2:15am, shortly after exiting the Melba Tunnel, and just east of the Mitcham Road overpass, a stolen Mercedes that had been following him since he left home drew alongside Mr Virgona’s van. The passenger in the Mercedes fired 11 rounds from a semi-automatic handgun into Mr Virgona’s driver’s door area, striking him at least seven times, possibly eight times, below the waist. The Mercedes sped off, taking the nearby Springvale Road exit. Meanwhile, Mr Virgona’s van spun out of control and came to rest in the right hand lane of the Eastern Freeway. He died seated at the steering wheel of his van, his mobile telephone in his lap.
The occupants of that stolen Mercedes were you, Josh Rider and Aaron Ong. I think it likely that you, Mr Rider, were the shooter, and you, Mr Ong, the driver — based on CCTV footage and gunshot residue found on clothing discarded by you — but in my view it does not make any difference in terms of your respective culpability because you were working as a team.
On 9 November 2022, exactly three years after the two of you murdered Mr Virgona, and shortly before your joint trial for murder was to commence, you, Mr Rider, pleaded guilty to the murder of Mr Virgona on the basis that you had been reckless. Recklessness in this context means foreseeing the probability of death or really serious injury. The prosecution withdrew its allegation of murderous intention against you in return for your plea of guilty. In other words, it did not maintain its allegation that you intended death or really serious injury. It also agreed that a sentence of life imprisonment was not warranted for you.
You, Mr Ong, ran your trial. In your case, the prosecution maintained its assertion of murderous intention. Your trial commenced before the jury on 11 November 2022. Your defence was identity, in other words, that you were not the second occupant of the Mercedes. You argued that you simply spent the night at Mr Rider’s apartment in Port Melbourne whilst he, unbeknownst to you, carried out the murder with the aid of an unknown offender. In light of the strong prosecution case that implicated you as well as Mr Rider, the jury unsurprisingly rejected your defence and, on 5 December 2022, found you guilty of murder.
The maximum penalty for murder is life imprisonment. The standard sentence for murder is 25 years’ imprisonment.
Let me now summarise your conduct leading up to and soon after the murder.
At the time of the murder, the two of you were members of the Mongols Outlaw Motorcycle Gang, and had been for several years.
Not long before 8pm on 8 November 2019, you each separately attended the Mongols clubhouse in Port Melbourne.
You later met up at Mr Rider’s Port Melbourne apartment, where the two of you left your mobile phones.
Nearing midnight, the two of you arrived in Jaxlee Close, Mooroolbark, in stolen vehicles — the Mercedes and an Amarok. Those vehicles had been stolen weeks before by others. As at 8 November 2019, they both bore false cloned number plates.
You left the Amarok in Jaxlee Close in the driveway of a house that was under construction and both of you got into the Mercedes and drove off. Unfortunately for you, the builder had installed a hidden CCTV camera in a tree across the road. It sent alerts and images to his mobile phone. He attended the scene after you left, took photos of the Amarok and reported his concerns to police.
After you left Jaxlee Close, you drove to where Mr Virgona lived in Croydon, and parked the Mercedes in a nearby street which gave you a view of his house. You waited.
As mentioned, Mr Virgona left home in his van at about 2am and you followed him until you murdered him shortly after he drove through the Melba Tunnel on the Eastern Freeway.
You took the Springvale Road off ramp immediately after the shooting and drove back to Jaxlee Close. There, you poured petrol over the Mercedes and torched it. You drove off in the Amarok.
At some point you changed out of the clothes you were wearing at the time of the shooting.
By this time, the police were aware that the Mercedes had been torched in Jaxlee Close and they were on the lookout for the Amarok.
A police divisional van spotted the Amarok at the intersection of the Burwood Highway and Ferntree Gully Road in Ferntree Gully at 3:11am and followed it without activating its flashing light. You were driving the Amarok, Mr Rider. Initially you drove steadily, but eventually you did a U-turn and tried to get away from the divisional van, which then activated its flashing lights. In the ensuing chase, you ran three red lights, crossed onto the wrong side of the road at one point and reached speeds in excess of 150 kph where the speed limit was 60 kph. When you ran a red light at speed at the intersection of Scoresby Road and the Burwood Highway, at least two other vehicles had to take evasive action.
When you tried to make a turn at speed from Scoresby Road onto the Mountain Highway, you lost control of the Amarok and collided with a give-way sign, coming to a stop on the wrong side of the road. You, Mr Rider, jumped out of the driver’s seat, jumped a fence and ran off through a park. You, Mr Ong, got out of the Amarok carrying two bags. You ran approximately 20 metres along the park fence line before discarding the bags, jumping the fence, and running off.
Those bags contained the clothes the two of you had been wearing at the time of the shooting. The bags were seized by the police. DNA analysis and gunshot residue analysis was conducted on both sets of clothing found in the bags. The DNA matched your DNA. Furthermore, gunshot residue was found on the clothing that was a match for your DNA, Mr Rider, lending support for the view that you were the shooter.
The two of you were arrested on 22 January 2020. You both made no-comment police interviews. You have been in custody since that date.
Victim Impact
The impact of your actions has been horrendous for Mr Virgona and his family.
An innocent man aged 46 has had his life cut short. Mr Virgona had no criminal associations. The prosecution summary states that there is no known reason why he was targeted.[1]
[1]Summary of prosecution opening re Rider, [10].
Ong, your counsel said this in his written submissions:
It is true that there is no evidence of motive … the murder occurred in the context of motorcycle club activity. It was, almost certainly, a case of mistaken identity.
…
It is accepted that the deceased did not live in the world of motorcycle clubs and did nothing to invite the violence.[2]
[2]Ong Sentencing Submissions, 30 May 2023, [18-19], [23c].
As far as the impact on Mr Virgona’s family is concerned, victim impact statements were made by the deceased’s wife Antonietta, son Luca, daughter Giulia, mother Geraldine, father Giuseppe and brother Marc. They are all devastated by Mr Virgona’s murder.
Antonietta, Luca and Giulia read their very moving statements to the court. Their loss is incalculable and the suffering they have endured — and continue to endure — is terrible.
Assessment of Objective Gravity
I turn now to an assessment of the objective gravity of your offending.
The offending by you both was self-evidently a very serious example of the offence of murder. Sensibly, your counsel did not suggest otherwise.
Your offending involved considerable planning: sourcing of a firearm and ammunition, the use of two stolen vehicles bearing false registration plates, deliberately leaving mobile phones behind in Port Melbourne, positioning of the get away car in a convenient location, surveillance of the deceased’s home over several hours, following Mr Virgona for several kilometres from his home, shooting Mr Virgona just before an off ramp, changing vehicles soon after the shooting, torching the vehicle used during the shooting, changing clothes, and disposing of the firearm.
The prosecution argued, and your counsel denied, that it fell into the worst category of murder. The prosecution relied on the level of planning, Mr Virgona’s innocence and vulnerability, the fact that the shooting occurred in public on a freeway, the absence of any provocation, the torching of the Mercedes and the disposal of the firearm. So far as you are concerned, Rider, the prosecution also relied on the fact that you had only a few weeks beforehand been placed on a community corrections order.
Quoting from Justice Lasry in the case of R v Mihayo,[3] the prosecution submitted that the murder of Mr Virgona was so grave and serious as to ‘shock the public consciousness’. Mihayo, however, involved a terrible breach of trust and multiple deaths, a father murdering his two infant daughters to spite his estranged wife.
[3][2014] VSC 652.
Another case highlighted by the prosecution was the case of DPP v Elliott & Fares.[4] That case was a drive-by shooting of five people outside the Love Machine nightclub in Prahran in April 2019. Elliott had fired four shots from a stolen Porsche driven by Fares in retribution for the expulsion of Elliott’s half-brother from the nightclub earlier that evening. Elliott and Fares were convicted of two counts of murder, two counts of attempted murder and one count of intentionally causing serious injury. Justice Tinney found that the offending involved a high level of planning. He found that the two murders fell into the worst category of that offence. I can well understand why Justice Tinney took that view.
[4][2022] VSC 554.
As carefully planned and cold blooded as your offending was, you did not open fire on a crowd of people, as happened in the Love Machine case.
I do not accept the prosecution’s submission that your offence falls into the worst category of murders. But having said that, I consider yours a very serious example of the offence of murder, one calling for condign punishment.
Matters in Dispute
As regards the circumstances of the offence, there were a number of matters that were in dispute at the plea hearing.
Rider
One matter in dispute was whether you, Rider, foresaw the probability of death or only really serious injury. I have no hesitation in finding beyond reasonable doubt that you foresaw the probability of death. Whether or not you were the shooter, I find that you were aware that multiple shots were to be fired at close range through the driver’s side door of Mr Virgona’s van whilst he was driving on the Eastern Freeway. I find that you realised at the very least that there was a substantial chance that Mr Virgona would die, either from the bullet injuries and/or from the likely car crash. The fact that none of the shots struck Mr Virgona above the waist does not raise a reasonable doubt on that score.
Another matter in dispute was whether your moral culpability, Rider, was less because you pleaded guilty to reckless murder, not intentional murder. As the authorities referred to by the prosecution in their written submissions make clear, a killing carried out with a reckless state of mind is not necessarily less culpable than an intentional killing.[5] In the circumstances of this case, especially the careful planning that went into the execution of this joint criminal enterprise, I find that your moral culpability is not reduced by your agreed state of mind being one of recklessness, not intention. Further, there was nothing improper in the prosecution settling the case on the basis of reckless murder and relying on the authorities I have mentioned. It was not suggested that the prosecution misled you or your legal team.
[5]R v Crabbe [1985] 156 CLR 464; R v Aiton (1993) 68 A Crim R 578; Barrett v R (2010) 27 VR 522; DPP v Herodotou [2017] VSC 178.
Ong
Another matter in dispute was whether you, Ong, agreed to killing Mr Virgona or just to causing him really serious injury. I find beyond reasonable doubt that you were aware that multiple shots were to be fired at close range through the driver’s side door in the direction of Mr Virgona whilst he was driving his van on the Eastern Freeway at some speed, and I infer that the only reasonable conclusion from your awareness of that fact is that you had agreed to killing Mr Virgona.
CIRCUMSTANCES OF OFFENDERS
Rider
I turn now to the personal circumstances of each of you, beginning with you, Rider.
Biography
On 4 May 1990, you were born, making you 29 at the time of the murder and 33 now. You grew up on the New South Wales central coast.
Your parents had three boys. You are the middle son. You have not had contact with your parents or your brothers for some time.
Your parents separated when you were 11. Your mother took your two brothers with her to live in Queensland, where she re-partnered. You told psychologist, Carla Ferrari, that you ‘remained with your father out of obligation and not wanting him to be alone’.[6] But your father developed an alcohol problem and was violent towards you. After six months of living solely with your father, you wanted to move to Queensland to be with your mother and brothers, but your mother refused. You eventually ran away from your father when you were 12 or 13. You couch-surfed or slept on the streets for a time. You moved in with a friend and his father when you were 14, but the friend’s father died after a couple of years and the friend moved away to live with his mother. You had to fend for yourself again. You stopped attending school at Year 9 or 10.
[6]Psychology report of Carla Ferrari, 10 February 2023, [19].
When you were 16 or 17, you started working as a tattooist, first in New South Wales and then in Western Australia, coming into contact with members of outlaw motorcycle gangs. You became a member of the Mongols when you were 19 or 20 years of age. In this milieu, you became a regular user of illicit drugs.
You have a long-term partner named Chloe, with whom you maintain a relationship. I am told you have no children.
Criminal History
Turning to your criminal history, you have prior convictions or findings of guilt recorded in New South Wales, Western Australia, South Australia and Victoria.
Your New South Wales priors were recorded between 2006 and 2009 and consisted of driving offences for which you received dismissals or fines.
Your Western Australian priors were recorded between 2012 and 2014. They include more driving offences but also weapons offences (including possession of firearms and ammunition offences) and drug offences. You received two[7] sentences of imprisonment in Western Australia, beginning with a six-month prison sentence on 26 March 2013 when you were 22 for a large number of offences, including contraventions of the Firearms Act 1973 (WA) and drug offences. Your counsel told me those contraventions related to the possession of both a firearm and ammunition.[8] On 6 February 2014, you received a sentence of nine months’ imprisonment for further contraventions of the Firearms Act 1973 (WA), including possessing a firearm with circumstances of aggravation. Your counsel told me that firearm was a revolver.[9]
[7]By this I mean ‘total effective sentences’.
[8]Transcript, 6 June 2023, 29.
[9]Transcript, 6 June 2023, 29.
Your South Australian priors were recorded between 2015 and 2016. They included drug and driving offences. A sentence of imprisonment for two months and one week was imposed for a driving offence in early 2015.
Your Victorian priors were recorded between 11 January 2018 and 18 October 2019 resulting in Community Corrections Orders or fines. Of most significance for present purposes are your Victorian priors for violence (intentionally causing injury and affray) and possessing a prohibited weapon without exemption or approval.
On 18 October 2019, you were put on a CCO for the offence of intentionally causing injury. That was a cowardly and nasty assault in company. You and an associate beat up another man, striking him multiple times about the head and face, causing fractures and other injuries to his face.[10]
[10]DPP v Rider & Anor [2019] VCC 1712.
After you were taken into custody for the current offence, Corrections brought an application to cancel that CCO by reason of your changed circumstances. That application was granted and, on 4 October 2021, you were resentenced to nine months’ imprisonment for the original offence.[11]
[11]DPP v Rider [2021] VCC 1481.
Membership of the Mongols
The summary of the prosecution opening at [13] says this about your association with the Mongols OMCG:
RIDER is a member of the Mongols OMCG … As of 2019, he had been associated with the Mongols OMCG for approximately 10 years.
No issue was taken by you with the accuracy of [13] of the prosecution summary.
You told forensic psychologist Carla Ferrari, who provided a report on you for these proceedings, that you were ‘considering’ leaving the Mongols, however, you stated that ‘the club has been very supportive of [you] and [your] partner whilst [you have] been on remand’.[12]
[12]Psychology report of Carla Ferrari, 10 February 2023, [62].
Unless you leave the Mongols, there will be a price to pay for that support. In all likelihood, it will be a price paid not only by you but by the community.
Character References
Character references were provided by your partner Chloe Damiani, her father Danny Damiani, and her sister Paris Damiani. According to those references, you are a much loved member of the Damiani family, including by Paris’ three young children.
Character references were also provided by your friends Jason Baird, Chris Young (who also employed you as a labourer for a time), and Bhaskar Sinha (who owns FightFit Boxing Centre, where you trained as a boxer).
These references all emphasise the impact on you of your difficult childhood. Jason Baird, who says he has known you since 2010, remarks:
Josh always wanted to feel as though he belonged and [was] accepted, hence why he joined the Mongols. I cautioned Josh about this ... When word filtered through of his charge, I was disappointed but not surprised. Josh has always wanted to be accepted.
A reference was also provided by Stephen Turnbull, an IT teacher at Box Hill Institute, which provides courses for prisoners. He described you as ‘punctual, polite and ... a good role model for other students at Barwon Prison.’[13]
[13]As well as the character reference from the teacher at Box Hill Institute, there were two certificates tendered on your behalf in respect of cleaning courses you have done whilst in custody, one from Box Hill Institute and the other from Kangan Institute.
I note that none of your character references refer to the fact that you have been a long‑time member of the Mongols.
Furthermore, I find little support in your character references for your counsel’s submission that you are truly remorseful for your offending. The closest the references get is a comment by Chloe Damiani that ‘Josh is ready to accept responsibility for his actions’ and a comment by Danny Damiani that ‘I’m aware he is ready to accept responsibility for his actions and the impact he has had on the family.’ I will assume that that is a reference to the deceased’s family.
Psychological Report
As indicated, forensic psychologist Carla Ferrari provided a report on you.
Ms Ferrari administered psychometric testing to you and concluded that you suffer from mild depression, ‘normal-minimal symptoms of Generalised Anxiety Disorder,’ post-traumatic stress disorder (PTSD) with ‘moderate symptomatology which would be affecting [your] mood and functioning’.[14] She also concluded that you did not have any ‘entrenched personality disorder’.[15] Nor was there any evidence of psychotic or delusional disorder.[16] She assessed you as a moderate risk of violent recidivism.[17]
[14]Psychology report of Carla Ferrari, 10 February 2023, [79].
[15]Psychology report of Carla Ferrari, 10 February 2023, [86].
[16]Psychology report of Carla Ferrari, 10 February 2023, [89].
[17]Psychology report of Carla Ferrari, 10 February 2023, [116].
Ms Ferrari writes:
Mr Rider’s history of adversity and instability with limited guidance or support would have severely impacted his development, his reasoning, and ability to make sound judgements and decisions, making him more susceptible to negative peer influences and more vulnerable to poor emotional regulation.[18]
She continues:
Together with his underlying personality structure and a sense of rejection and abandonment by his parents at a critical stage of his development, Mr Rider found acceptance and support in the OMCG, and unfortunately was introduced to hard substance use which he used as a coping mechanism for his depression, anxiety, and anger from age 20-27, which increased his criminal offending profile significantly.[19]
As regards the origin of your PTSD, she writes:
It appears that in response to the current offending, Mr Rider has developed Post-Traumatic Stress Disorder (PTSD), experiencing ongoing flashbacks, nightmares, physiological arousal symptoms, and negative alterations of his mood including guilt and shame. He exhibits moderate symptoms at present, though they can fluctuate in intensity and frequency, and are prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues.[20]
[18]Psychology report of Carla Ferrari, 10 February 2023, [99].
[19]Psychology report of Carla Ferrari, 10 February 2023, [100].
[20]Psychology report of Carla Ferrari, 10 February 2023, [104].
I have not previously encountered a case where the origin of the PTSD is said to be the offending itself. Neither had the prosecutor. Nevertheless, it seems to me that it is the fact of the condition itself, not its origin, which matters, and the prosecution did not demur.[21]
[21]Transcript, 6 June 2023, 98.
Whether Verdins 5 & 6 applicable
Ms Ferrari opined that, because of your depression, anxiety and PTSD, it was likely that you would find prison harder than a person who did not suffer from those conditions, and that prison will exacerbate those conditions [120]. Her opinions, which were not disputed by the prosecution, engage principles 5 and 6 of Verdins v R.[22]
[22]Verdins v R (2007) 16 VR 269.
The Court of Appeal said this in Verdins:
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following … ways:
…
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[23]
[23]Verdins v R (2007) 16 VR 269, [36].
Whether Bugmy principles applicable
Another matter in dispute at your plea hearing, Rider, was whether the principles articulated by the High Court in Bugmy v R[24] were engaged. Those principles are captured by the following passage in the judgment of the plurality:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision …[25]
[24]Bugmy v R (2013) 249 CLR 571.
[25]Bugmy v R (2013) 249 CLR 571, [43]–[44].
The prosecution argued that Bugmy principles are limited to impulsive offending, not premeditated offending such as yours. The prosecution highlighted this sentence in [44] of Bugmy:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.
The prosecution’s submission seems to me to involve too narrow a reading of Bugmy principles. For one thing, it pays insufficient regard to the earlier statement that such a background ‘may compromise the person’s capacity to mature and learn from experience.’ Significant deprivation in one’s formative years may detrimentally affect both considered and unconsidered choices later in life.
It is worth repeating what Carla Ferrari said in her psychological report at [99]:
Mr Rider’s history of adversity and instability with limited guidance or support would have severely impacted his development, his reasoning, and ability to make sound judgements and decisions, making him more susceptible to negative peer influences and more vulnerable to poor emotional regulation.
In my view, whether a crime by a person with such a background was planned or impulsive goes to the weight to be given to Bugmy principles, not their applicability per se.
Plea of Guilty
As mentioned, on 9 November 2022, you pleaded guilty to the murder of Mr Virgona.
A matter in dispute at your plea hearing was whether your plea of guilty was made at the first reasonable opportunity. You pleaded guilty on 9 November 2022 when the jury were due to be empanelled a few days later. In the week prior to the trial, you offered to plead guilty to manslaughter. The prosecution rejected that offer but made a counter-offer, namely, that it would accept a plea of guilty to reckless murder, which you accepted. To my mind, that did not mean you pleaded guilty at the first reasonable opportunity. There was nothing stopping you from offering to plead guilty to reckless murder at an earlier stage.
Nevertheless, your plea of guilty had significant utilitarian value, even though there was still a trial because Mr Ong pleaded not guilty. I note the prosecutor’s concession that, in assessing the utilitarian value of your plea of guilty, I should treat your plea of guilty as if it had obviated the need for a trial.[26] Further, your plea of guilty ensured that someone would be held responsible for Mr Virgona’s murder. The prosecutor very fairly stated at the plea hearing that ‘It was of comfort to the family to learn that Mr Rider was pleading guilty to the murder.’[27] It also no doubt shortened and simplified the trial that was conducted.
[26]Transcript, 6 June 2023, 94.
[27]Transcript, 6 June 2023, 93.
Your plea of guilty has increased utilitarian value because it was entered at a time of case backlogs due to the pandemic.[28]
[28]Worboyes v R [2021] VSCA 169, [39].
Whether Remorseful
Your counsel submitted that you were remorseful for your offending. He relied on your plea of guilty and the psychological report in that regard.
As for your plea of guilty — which as I have already indicated was a late plea — it strikes me as more a realistic response to a very strong prosecution case than the pangs of conscience.
It is true there are a number of references in Carla Ferrari’s report to your remorse. She said this:
60. Mr Rider made no attempt to justify or minimize his actions. He did not dispute facts of the case. He took full responsibility for his involvement in the offending, and described feeling “really bad, I’m messed up over it”. He reflected that he had unintentionally killed the victim and in doing so “taken someone else’s dad away, when I grew up without a dad so I know how much that affects someone”.
61. Mr Rider stated that he made an extremely poor decision and stated the injury and subsequent death of the victim “was unintentional, it was never meant to happen”. He acknowledged that his offending behaviour has had irreversible consequences and has significantly altered the lives of [the] victim’s family, as well as his own and his partner’s future which he deeply regrets. He tries to remain positive however understands he has a long and arduous road ahead which he accepts is the necessary punishment for his actions.
…
106. Mr Rider did not attempt to minimize or rationalize his conduct or its consequences. He is remorseful for his actions and has since struggled to come to terms with his behaviour, engaged in avoidance behaviours, and experiences intrusive thoughts and nightmares relating to the incident.
107. He appeared sincere and genuine in his expression of remorse for the victim, their family, and the irreversible impact that has been caused by his reckless behaviour. Mr Rider also acknowledged that his partner has been affected by his actions and he has negatively impacted their future.
As I indicated to your counsel, I place little weight on an offender’s self-serving hearsay statements about remorse to a forensic psychologist, especially where a plea of guilty is entered at a very late stage in the context of a very strong prosecution case and where there is a paucity of evidence of remorse in character references tendered on behalf of that offender. Ms Ferrari did not have the benefit of those character references in making her assessment.
Your counsel conceded that this was not a case of ‘immediate remorse’[29] but that I should be satisfied that you are now truly remorseful. I hope that is the case, but I am afraid I am not satisfied of it on the balance of probabilities.
[29]Transcript, 6 June 2023, 40.
Progress in Custody
As for your time on remand, you have had to endure harsher custodial conditions over an extended period of time because of the pandemic.[30]
[30]Surtees v R [2022] VSCA 42, [10].
The conditions of your incarceration at Barwon Prison — where you have been kept for approximately the last 12 months — have been particularly burdensome. I was told by your counsel that you are locked in your cell for 22 hours per day. That claim was not disputed by the prosecution.
There has also been inordinate delay in the finalisation of your matter due to the pandemic[31] which exacerbates the stress of incarceration, especially given your mental health issues.
[31]Tones v R [2017] VSCA 118, [36]–[40].
I will take all these matters into account in your favour.
Prospects of Rehabilitation
Your counsel said you have ‘prospects of rehabilitation’.[32] That is a modest submission. I am guarded about your prospects of rehabilitation given your lengthy criminal history, the gravity of your current offence and your failure to sever all ties with the Mongols. I do not say there is no hope of rehabilitation for you — there is always hope — but that is as much as I can say.
[32]Transcript, 6 June 2023, 55.
Ong
I turn now to your personal circumstances, Mr Ong.
Biography
On 15 September 1985, you were born, making you 34 at the time of the murder and 37 now.
Your father, a retired factory worker, is Cambodian and your mother, a homemaker, is of Italian descent. You have three sisters. Your oldest sister attended your trial.
Apparently, no one else in your immediate family has been in trouble with the law. You told forensic psychologist Jeffrey Cummins that you have ‘always felt safe and loved around [your] parents’ and that you and your parents have generally maintained a reasonable relationship.[33]
[33]Report of Jeffrey Cummins, [9]–[10].
In Grade 3 or 4 you say you were diagnosed with dyslexia but did not receive specialist support. You struggled at school.
In Grade 8, you were expelled from Parkwood High School and thereafter attended Maroondah High School. You did not complete Year 12. Instead, you began working as an automotive mechanic. You did that steadily for several years but never became a fully qualified mechanic. Thereafter, you worked as a sheet plasterer, factory hand/metal fabricator and again as a mechanic. To your credit, you have been in regular employment since leaving school.
As regards the use of illicit drugs, psychologist Jeffrey Cummins says this at [23] of his report:
At age 20 and through being part of the nightclub scene he was introduced to methamphetamine and shortly thereafter he became a daily smoker of methamphetamine. He continued to have a dependency on methamphetamine until he was aged around 27, at which time he ceased the dependency cold turkey.
You have had three significant intimate relationships but have no dependants. Your current partner and a former partner have provided very positive references about you.
Criminal History
You have a limited criminal history. Your first prior was recorded in 2005, your last in 2013.
You have multiple priors for possessing illicit drugs and driving offences. You have breached several Community Based Orders. You have previously undergone one sentence of actual imprisonment, but that was only for a period of two months in 2009 when you were aged 24.
Of most relevance is a prior for possessing cartridge ammunition and a prior for possessing a prohibited weapon. I was not provided with any details regarding the ammunition (for example, how much?), but I was told by your counsel that the prohibited weapon was a flick-knife.[34]
[34]Transcript, 6 June 2023, 80.
In your favour, you have no convictions for assaults of any kind. And prior to the current offence, you had not come to the attention of the courts for some six years.
Membership of the Mongols
The prosecution summary asserted, and it was not disputed, that you had been associated with the Mongols OMCG for approximately five years as of 2020.[35] Your counsel conceded that your offending was ‘club related’.[36]
[35]Summary of Prosecution Opening, 21 March 2023, [14].
[36]Transcript, 6 June 2023, 78.
Psychologist Jeffrey Cummins’ report at [16] says that you became a patched member of the Mongols in 2017. It was not suggested in that report or in your counsel’s submissions that you have disavowed the Mongols. Rather, in trying to downplay your association with them, your counsel emphasised your love of motorcycles and your enjoyment of their social activities. You did likewise in your discussions with psychologist Jeffrey Cummins.
The Mongols are an outlaw motorcycle gang. Your counsel admitted that the murder of Mr Virgona was club related. Given the substantial term of imprisonment I must impose on you for your grave offending, your association with the Mongols has proved disastrous for you. If you have not done so already, you would do well to sever once and for all any association you have with the Mongols or its members.
Character References
I received references from your partner Lauren Musumeci, your former partner Haylee Gard, her father Neil Gard (for whom you worked for about 18 months), your aunt’s long-term partner Graham Teasdale (who has occasionally employed you in his plastering business), your cousin Stephanie Porcellana, a friend and work colleague Rob Warburton, friend Jessica Otte, friend and co-worker Simon Tarquinio, his mother Loreta Tarquino, and friend and employer Rhys Pearse, who was a witness at your trial.
The references portray you as a caring, considerate and non-violent person, a family-orientated person and a good worker. It is difficult, if not impossible, to reconcile that portrayal with your current offence.
As with Rider’s references, none of your character references refer to the fact that you have been a long-time member of the Mongols.
Psychological Report
As indicated, forensic psychologist Jeffrey Cummins provided a report on you. He assessed you via a video conference on 21 February 2023. Under the heading ‘Mental State Examination’, he says this:
[27] … He presented as being of high average intelligence.
[28] He did not present as having an acquired brain injury, adult ADHD, an Autism Spectrum Disorder, a Bipolar Mood Disorder or a Manic Disorder. There was no suggestion from his history to indicate he had ever been psychotic or schizophrenic. He did not present as having any current impairment in his perception, judgement or reasoning ability. I did not diagnose him as suffering from any personality disorder. Specifically I did not diagnose him as suffering from an Antisocial Personality Disorder, a Narcissistic Personality Disorder, a Paranoid Personality Disorder, or a Borderline Personality Disorder.
Mr Cummins noted at [36] of his report that you have no documented mental health history.
Progress in Custody
You are currently a prisoner at Port Phillip Prison. Whilst in custody you have been diagnosed with Meniere’s disease for which you are medicated.
When you were first remanded in custody for the current offence, you were briefly prescribed an antidepressant. Mr Cummins said this in his report:
[37] He reported his primary current way of coping with his situation is to exercise daily as a means of managing his racing and at times overwhelming thoughts concerning the duration of the sentence which will be imposed … [38] … In my opinion it is very probable his mental health would deteriorate with time as he progressively comes to terms with the sentence imposed.
Your counsel tendered the results of 13 urinalysis tests conducted on you in prison between 16 December 2019 and 3 February 2023. Pleasingly, all of them have been negative for illicit drugs.
As with Rider, I will take into account in your favour that you have had to endure harsher conditions in custody because of the pandemic and that the inordinate delay in the finalisation of your matter has added to the stress of incarceration.
Prospects of Rehabilitation
The prosecution and your counsel were both of the view that you have reasonable prospects of rehabilitation, notwithstanding that you have not accepted responsibility for the murder of Mr Virgona. Given your limited criminal history, your reasonable mental health and your good work history, I will accept, on the balance of probabilities, that you have reasonable prospects of rehabilitation.
SENTENCE
There will be significant disparity between the sentences I impose on the two of you.
I accept your counsel’s submission, Rider, that your head sentence and non-parole period should be significantly less than that to be imposed upon Ong. The prosecution acknowledged that your plea of guilty is a ‘material distinguishing factor’ between you and Ong. Other distinguishing factors that work in your favour, Rider, are the principles in Bugmy and principles 5 and 6 in Verdins.
On the other hand, you have a more extensive criminal history than Ong and were on a CCO at the time of the murder. Further, I am guarded about your prospects of rehabilitation, whereas I accept that Ong’s prospects are reasonable.
I have taken all these matters into account as best I can.
Pursuant to ss 5(2)(b) and 5B(2)(b) of the Sentencing Act 1991, I have had regard to current sentencing practices for standard sentence murders. Your counsel, Rider, helpfully supplied a table of over 40 cases, which included a number of murders involving the use of firearms.[37] Every case has its own unique features, but I derived some assistance from the sentencing cases referred to in that table.
[37]DPP v Elliott & Fares [2022] VSC 554; R v Fiscalini & Wynne [2022] VSC 51; DPP v Gonzalez [2022] VSC 331; R v Pan [2021] VSC 703; DPP v Patterson [2022] VSC 746; R v Possebon [2019] VSC 631; Shaptafi v R [2023] VSCA 91; Wilio v R [2023] VSCA 88.
Section 5 of the Sentencing Act 1991 sets out the purposes of sentencing.
In sentencing both of you, punishment, general deterrence, denunciation and the protection of the community must loom large.
Because of your lengthy criminal history, Rider, specific deterrence must also be given considerable weight in sentencing you. That is less so in your case, Ong, because you have reasonable prospects of rehabilitation.
I have not forgotten rehabilitation, but both of your head sentences and non-parole periods must be of substantial duration, given the seriousness of your offending.
Your counsel, Ong, submitted that I need to avoid imposing a crushing sentence, that is, one that would leave you without hope of a meaningful life after prison. In Mohamed v R,[38] the Court of Appeal said this:
The preponderance of authority favours the view — with which we respectfully agree — that there is no separate sentencing principle requiring that a ‘crushing’ sentence be avoided. Rather, it is a particular expression of the fundamental sentencing principle of rehabilitation, which requires that the sentence to be imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender.[39]
[38][2022] VSCA 136.
[39]Ibid [6].
I have borne that guidance in mind in determining the sentences and non-parole periods that I will impose on each of you. The significant difference between the head sentences and non-parole periods imposed on each of you will, I hope, promote that rehabilitation.
Rider
Mr Rider, please stand.
For the murder of Mr Virgona, I sentence you to 30 years’ imprisonment.
Section 11A of the Sentencing Act 1991 requires me to fix a non-parole period that is at least 70% of the head sentence, unless I consider it is in the interests of justice to fix a lesser period. Notwithstanding your plea of guilty, I am not persuaded to exercise that discretion in your favour, given the seriousness of your offending and your extensive criminal history. Accordingly, I fix a non-parole period that is 70% of the head sentence, namely, 21 years’ imprisonment.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 36 years’ imprisonment with a non-parole period of 25 years and three months.
I declare that you have served 1296 days of your sentence by way of pre-sentence detention.[40]
[40]I note that I have not deducted from the PSD declaration the sentence of 9 months’ imprisonment imposed on you, Rider, on 4 October 2021. I have not done so because that sentence was effectively extinguished by the crediting by Corrections Victoria of 272 Emergency Management Days against that sentence. Your counsel submitted that, in addition to making the full PSD declaration of 1296 days, I should still take that 9 months’ imprisonment into account in application of the totality principle. That strikes me as double dipping.
Ong
Mr Ong, please stand.
For the murder of Mr Virgona, I sentence you to 35 years’ imprisonment.
Section 11A of the Sentencing Act 1991 requires me to fix a non-parole period that is at least 70% of the head sentence, unless I consider it is in the interests of justice to fix a lesser period. Notwithstanding your limited criminal history and your reasonable prospects of rehabilitation, I am not persuaded to exercise that discretion in your favour, given the seriousness of your offending and your refusal to accept responsibility for it. Accordingly I impose a non-parole period of 24 years and six months’ imprisonment.
I declare that you have served 1296 days of your sentence by way of pre-sentence detention.
Pursuant to ss 5B(4) and (5) of the Sentencing Act 1991, I acknowledge that the sentences I have imposed on each of you are higher than the standard sentence for the offence of murder, which is 25 years’ imprisonment, but I consider that the sentences are appropriate for the detailed reasons I have given above.
Finally, I make the Disposal Order sought by the prosecution.
5
17
0