R v Ardley - [2009] VSC 635

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No.

THE QUEEN

ANDREW NEIL ARDLEY
STUART DONALD BINION

GREGORY DAVID BONE

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JUDGE:

KING J

WHERE HELD:

Melbourne

DATE OF HEARING:

9 November 2009

DATE OF SENTENCE:

23 November 2009

CASE MAY BE CITED AS:

R v Ardley & Ors

MEDIUM NEUTRAL CITATION:

[2009]

VSC 635

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Pleas of guilty, Kidnapping, youth of offenders at time of offence, Assist OPP in ongoing prosecution.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Office of Public Prosecution
For Accused Bone	Mr P. Tiwana	Paul Vale and Associates
For Accused Binion	Mr B. Doogue	Doogue and O”Brien
For Accused Ardley	Mr R. Davis	Robert Davis and Associates

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HER HONOUR:

Gregory Bone, Stuart Binion and Andrew Ardley, you have each pleaded guilty to one count of kidnapping Marlene McDonald on 14 December 1986 and you, Andrew Ardley, have also pleaded guilty to one count of indecently assaulting Marlene McDonald on the same date.
You, Gregory Bone, are now aged 40, having been born on 5 July 1969 and you are a disability pensioner residing in Whittlesea. You, Stuart Binion, are aged 41, having been born on 6 September 1968, residing in Raby in New South Wales. You, Andrew Ardley, are aged 41, being born on 30 January 1968, and are also a disability pensioner residing in Richards Street in Moe.
On Sunday 14 December 1986, Marlene McDonald was reported as a missing person. She has not been seen since that date and her body has never been located. Her husband, John Vincent McDonald, whom she married in 1970, has been charged with her murder and is involved in a part heard committal in relation to her alleged murder.
The offending by each of you came to light in the following circumstances. In January of 1987, the missing person file on Mrs McDonald was closed, the police having concluded that she probably left Victoria voluntarily with a truck driver. It was the intention of her husband that such a conclusion should be reached by the investigating authorities.
In 2007 the Cold Case Task Force looked into the investigation of this matter and commenced inquiries. In October of 2008, investigators from the Cold Case Task Force were notified by Police Forensics that a fingerprint from the interior of Marlene McDonald's car, which had been abandoned at her work premises, Truck City, had now been identified as belonging to you, Gregory Bone. The identification was able to be made as a result of advances in fingerprint technology.
An investigation into your involvement occurred, which included the introduction of a police covert operative, who ultimately obtained a confession from you as to your involvement in the kidnapping of Marlene McDonald from her home in Wattle Grove, Reservoir. This confession occurred on 16 June 2009 and it also identified the involvement and participation of Stuart Binion and Andrew Ardley. You, Gregory Bone, were arrested, interviewed and made full admissions. You also provided a written statement confirming the involvement of yourself and your co-offenders.
On 18 June, you, Stuart Binion, were arrested and interviewed in New South Wales. You also made full admissions and provided a written statement. On 19 June you, Andrew Ardley, were arrested and interviewed and equally made full admissions. You all provided written statements confirming your involvement and that of your co-offenders.
You, Gregory Bone, on 23 July 2009, participated in a video re-enactment of your involvement in the kidnapping and disappearance of Marlene McDonald.
You have each maintained, throughout your police interviews and statements , that after the kidnapping you had left Marlene McDonald alive with her husband, John McDonald, and that you believed you had assisted McDonald with the kidnapping for differing reasons, including to enable him to take his wife to an asylum in Albury, so that she could cause him no more trouble in relation to children, maintenance or finances, or that she had been dropped at her truck driver boyfriend's place. Whilst at this stage it might seem totally unrealistic and highly improbable, at the time it must be remembered that you were either 17, in the case of you, Ardley, or 18 years of age in the case of you, Binion and Bone.
You are not being punished in this court for any involvement in the murder or alleged murder of Marlene McDonald. You are being punished for your role in the kidnapping of Marlene McDonald and you, Ardley, for your indecent assault upon her on that occasion. As will become apparent, the Crown concedes that you had no involvement or knowledge of the actual murder.
The circumstances surrounding the actual offending are as follows. Marlene McDonald was aged 36 at the time she was abducted from her home in Wattle Grove, Reservoir. On 16 April 1970 she had married John Vincent McDonald. Prior to her marriage, she had been a hairdresser and initially she undertook home making duties, she and Mr McDonald had five children. She also assisted with the family fruit juice delivery business. The family lived in and around the Wallan and Whittlesea areas and during that time, as indicated the family, operated a fruit juice delivery business. In 1984, that business collapsed, giving rise to a massive debt, which resulted in the forced sale of the family home in King Street, Wallan.
In April 1985, Mrs McDonald began employment as a waitress, at Truck City on the Hume Highway in Campbellfield, to assist with the family's financial circumstances. A combination of the financial circumstances, allegations of infidelity and violence, led to the breakdown of the marriage and in November 1985, Marlene and John McDonald separated. John McDonald moved to a rental house in Whittlesea with his eldest son and daughter and Mrs McDonald moved into a rented house at 40 Wattle Grove, Reservoir with the three youngest children.
Mrs McDonald owned a Toyota Corolla Sedan, which she used to commute to and from work at Truck City. Mr McDonald owned a 1968 Mitsubishi L300 Van, which had an open cargo area. That will play some significance in terms of the forthcoming committal proceedings.
During 1986, there was a bitterly contested custody case in relation to the three younger children. A formal decision on custody was being deferred until the arrival of a family law report. That report was due at the time of Mrs McDonald's disappearance. Mrs McDonald also had commenced preparing divorce papers, with the intention of listing divorce and property proceedings, but no date had yet been determined. She had also commenced an ongoing relationship with an interstate truck driver from the Kinglake area, named Bruce Williams. It is alleged by the Crown that, from the time that Mrs McDonald separated from her husband until her disappearance, she was the subject of continual harassment, intimidation, threats and assault by McDonald.
John McDonald's connection to you was that he played cricket regularly with the Whittlesea Cricket Club, on the weekends. You, Stewart Binion, also played with the Whittlesea Cricket Club at the same time. You, Mr Binion, were 18 years of age, living with your mother, father and younger brother and employed as a carpentry apprentice. You, Gregory Bone at that time, also lived in Whittlesea with your mother, father and siblings. You Mr Ardley, lived in Whittlesea with your mother and siblings. You had all attended Whittlesea Technical School and you knew each other over a period of time, as young men who attend school together often do. You also socialised to a degree, together, although the friendship was closer between Bone and Ardley than amongst the three of you.
You, Binion, were recruited by John McDonald to assist in the kidnapping of his wife, for which you were to be paid. You in turn, recruited Bone and Ardley to assist in that kidnapping. Whilst you remain unsure of precisely where the conversation between you and McDonald, as to this recruitment took place. You maintained it was McDonald who recruited you and it was to do with the fact that his wife had the kids and that she was "a bitch and a bit psycho".
On the evening of Saturday 13 December 1986, Marlene McDonald went to the Calder Raceway with her friend Bruce Williams, his son and a friend of his son. She was picked up at 7 pm and dropped back at her home by Mr Williams at 1 am, on the morning of Sunday 14th. Mr Williams and the two boys waited and watched Mrs McDonald go to the house, open her front door and go into the house, before they drove away.
Sometime after 8.30 on that Saturday night, you three were picked up by John McDonald, he was driving his van and you all drove to Marlene McDonald's premises in Wattle Grove, Reservoir. He told you Mrs McDonald was going to be kidnapped. Each of you appeared to think there was a slightly different reason for the kidnapping and also what might have happened to her, but all of you maintained at no stage did you think she was going to be killed.
You Binion, told the police you believed she was going to be kidnapped, taken up to New South Wales and she would be dropped off at her truckie boyfriend's home. You Bone, told the police that you thought she was going to be stuck in an asylum, on the sly, as you put it, that he was “going to stick her in there, because she was known to be a psycho”. You Ardley, told the police that, you just didn't really think about what was going to happen to her, just that you knew there were family problems between the lady and her husband. You thought she was going to be taken away somewhere, just didn't know where. But each of you with that knowledge, entered the backyard of Marlene McDonald's home. You Bone, gained entry to the house through the glass louvre windows of the toilet and let the others, McDonald, Binion and Ardley into the house, where you all lay in wait for Mrs McDonald to return.
It would appear during this time Mrs McDonald's holiday pay, which was in her purse on the bench, was taken as well as the television. You have not been charged with these offences and they have no relevance to the sentencing, although they have relevance in the overall picture of what happened.
On the Sunday morning at about 1 am, when Mrs McDonald arrived home and came into the house, she was immediately grabbed by all of you and tied up. A doona was placed over her head and she was carried out of the house and put into the back of a van. McDonald, you Binion, and you Ardley, all got into the van, Mrs McDonald was lying on the floor, the rest of you on seats. You Bone, got into Mrs McDonald's Corolla sedan, started it with the key that had been taken from her and drove it to the car park of Truck City. The others followed you in that van. You abandoned the Corolla there, leaving the keys in it. This was part of the plan, intending to make anyone investigating Mrs McDonald's disappearance, think she may have run off with the truckie. You Bone, then got back into the van and joined the others and John McDonald drove the van back to Whittlesea, where all three of you got out, leaving Mrs McDonald bound up in the van with Mr McDonald driving. You all say Mrs McDonald was alive when you left the van and those are the matters that comprise Count 1.
In relation to you Mr Ardley, it would appear that on the trip back to Whittlesea from Truck City, you sexually assaulted Mrs McDonald while she was tied up and lying on the floor of the van, by attempting to insert your finger into her vagina. You were told to desist and you did. That is what comprises the additional count, Count 2, in respect of your matter.
Ultimately, none of the three of you received any money from McDonald for assisting him in abducting his wife. You did share in some of the money, the six hundred dollars, which was taken from Marlene McDonald's house on that night, which comprised her holiday pay.
As indicated, there has been no trace of Marlene McDonald since that night she was abducted from her home. You all claim that at the time when these offences were committed, that you were affected by drugs and alcohol
In this matter two victim impact statements were received, one from the mother of Marlene McDonald and the other from her brother. Both of them expressed the anguish of not knowing what happened to their daughter and sister, the loss that flowed of not ever getting to know their grandchildren, nieces and nephews, all as a result of the loss and the disappearance of Marlene McDonald, together with the anguish and pain that is caused by such a loss, in such tragic ongoing circumstances.
In relation to these offences, it is now agreed by all, that while it was the position that the sentence was at large in 1986, the maximum penalty is now 25 years and I am to act on that basis. In respect of the sexual assault, that carried a maximum of five years at the time.
In relation to this matter all three of you, as I have indicated, have made statements to the police. All of you have given evidence before me that you intend to give evidence in accordance with those statements in the committal and potential trial against John McDonald and that your statements are truthful.
That is a factor that has to be taken into account in your favour, as is your plea of guilty and the stage at which it was made. Equally in your favour is the fact that, at the time of the offending, each of you, would be described as a young offender and lacking in any true serious criminal history.
An aggravating feature of this case is that you were all involved in it for commercial purposes. That is you were going to be paid by John McDonald. You were each aware that Marlene McDonald was going to be kidnapped, given into the custody of her husband and removed from Melbourne, removed from her children and her family for an unknown period, which is on anyone's view, a significant deprivation of a person's liberty and freedom.
You all knew that she was to be removed from the safety of her own home by four males overwhelming her physically. You were all equally aware, that this was going to be a long term removal, in that you were aware, that part of the plan of John McDonald was to make the police believe that she had run away, abandoned her children and family to go interstate with a truck driver. Which clearly demonstrated your awareness that this was to be a long term abduction.
Further, none of you came forward, even when you became aware that Marlene McDonald was missing and remained missing for many years. None of you volunteered the information that you had until confronted by police, at which stage, you did confess your involvement and the involvement of each of your co-offenders.
I equally have to take into account the personal circumstances of each of you. Dealing firstly with you, Gregory Bone, you were born in Melbourne and raised in Epping for a period of time. You were one of four children, having an older brother who is now 50, an older sister and a younger sister. It would appear that you have little to do with any of these people. Your parents are both still alive and are now in their 70s. They are living in retirement villages, but have separated and are accordingly, living in separate retirement villages.
You have had no contact with your parents for at least the last ten years. You describe your father as a strict disciplinarian whilst you were growing up but not an abusive one. He was alcohol dependent initially for the part of your life but later became totally alcohol free. You attended primary schools in Epping and then when the family moved you attended primary school in Whittlesea. You described yourself as a mischievous child who attracted trouble. You were expelled in Year 8 from Assumption College in Kilmore after you punched a school priest. You were according to the information placed before me expelled from Whittlesea Technical College the following year and you then went to work in the Woolworths' abattoirs.
You commenced your illegal drug and alcohol use at the age of 15. You smoked cannabis on a daily basis until approximately four years ago and now you continue to smoke intermittently. You abused amphetamines up until the age of 18 and you were heroin dependent from 18 until your early 30s. You were prescribed methadone for a period of six months and during your period of heroin use you also abused benzodiazepines of many types.
You have been abstinent for some time, but you commenced re-using methylamphetamine approximately five years ago. You have also had severe psychotic episodes. You have used cocaine, LSD, magic mushrooms and have been a serious binge drinker.
A psychiatrist's report placed before the court indicated that they believed you were more than a binge drinker and that you drank on a daily basis until gross intoxication, frequently experiencing blackouts and acute withdrawals. When you were aged 17 you were for some time admitted to a psychiatric facility to assist in managing your drug and alcohol related violence.
Throughout your adulthood you have had contact predominantly with general practitioners for a range of psychiatric issues. Your first significant episode of major psychiatric disturbance occurred in 2003. It occurred on the background of significant heroin dependence and use, together with your marijuana usage which was then combined with a three month period of severe methylamphetamine use. You experienced a psychotic episode requiring inpatient treatment at the Alfred and Northern Hospitals. You experienced suicidal and homicidal ideation in relation to persecutory delusions and auditory hallucinations. You were admitted for a period of four weeks and treated with a variety of anti-psychotic medications. Your mental state improved and you were discharged.
You immediately went into drug usage again leading to a second psychotic episode and you voluntarily admitted yourself. You were involved in a violent assault during this period of psychosis which led to you being incarcerated. Whilst you were in custody you were admitted to the acute assessment unit of the Melbourne Assessment Prison and commenced on the anti-psychotic medication, Olanzapine. Your psychotic symptoms gradually reduced and they were able to stabilise you on that medication.
You are still mildly afflicted by residual symptoms, including anxiety, poor concentration and cognition and mild paranoid feelings. But you have not experienced hallucinations for many months, although you of course have had great anxiety relating to this court case. You have an extensive criminal history dating back to 1985, continuing through until 2009. The offences predominantly appear to relate to charges of theft, driving while disqualified, possession of drugs, drinking offences and violent assaults. It involves approximately 30 court appearances, involving innumerable offences. Apart from the two Children's Court offences in 1985, they are all subsequent to the offending in this matter.
You commenced your work history at approximately 14 years of age, working with your brother, as I indicated, in a Woolworths slaughter house in Northcote. You were involved initially cleaning machinery and making sausages. You worked five days a week from 5 am to 5 pm. After you ceased work at the abattoirs you worked at an organisation which later became known as Armaguard. You ultimately lost that job because of your criminal convictions.
After you committed this offence you had almost no further contact with your co- offenders and that appears to be mutual between the three of you. You drifted away from any dealings with them and you never saw Mr McDonald again. After you ceased employment at Armaguard you worked for a few years in the plastering business, living with your girlfriend for a number of years in housing commission accommodation in Whittlesea.
Together with Ms Beatty, you had a daughter Britney who is now aged 15, but you left that relationship while your daughter was still a baby. You had not seen your daughter for some years until the resumption of that relationship recently. You now see her once or twice a week and her mother is quite happy for you to have that involvement.

You have reported feelings of depression throughout your life, with feelings of chronic low self worth and guilt and the disappointing of your parents. As indicated, you took every sort of drug known during the period 1986 through to 2003. I fail to understand why any person thinks they are immune to the effects of illegal drugs.
In January of 2001, you were involved in a serious road traffic accident. You had been at Crown Casino all that day, drinking. You were thrown out that night by the doorman and according to the instructions you gave, thrown out to the street and hit by an oncoming vehicle. You have not been able to work since that time and you receive a disability pension. You were in hospital for three to four months with a fractured shaft of left femur, damaged lateral ligaments in your right knee and your right patella was dislocated. You underwent extensive periods of rehabilitation.
In July 2002, surgery was performed, again in relation to anterior cruciate ligament reconstruction. You continue to suffer immense pain, I am informed, in your right knee and lower back. It was submitted that although you were a person who abused alcohol and drugs, you had also maintained a good work ethic and that your inability to work since the accident has led to deepening depression and abuse of alcohol and drugs to numb the pain. Ultimately, your methylamphetamine usage left to drug-induced psychosis, persecutory illusions and auditory hallucinations. You currently have an ongoing civil claim in respect to the motor vehicle accident.
In 2006 you were sentenced to three years imprisonment with a non-parole period of 500 days. As I indicated earlier, it was during this time that you were stabilised on the drug Olanzapine and you have had no further psychotic episodes. Since your last period of incarceration in December 2006, the only offences of which you have been convicted are possessing cannabis and failing to answer bail, for which you received an aggregate fine of $300.
It has been submitted that you have positively attempted to turn your life around. You have stopped taking drugs, with the exception of cannabis, which you clearly think causes you no particular problem. You have, according to Dr Deakin, whose report was tendered in court, "Impressed as a man who has endeavoured to re- establish himself in society. He has relinquished many of his anti-social tendencies and modified alcohol and substance use in order to maintain mental stability and enhance his opportunities in life."
I was provided with a reference from a woman by the name of Loretta Backs. You have lived on and off with Ms Backs for the last ten years and she treats you, to a large degree, as a son. She is aged 72 and you met her when you were a much younger person and a friend to her son Stephen. In the letter that she wrote to the court, she said she believed that you had made a lot of bad choices in your life but, in her view, you have in fact matured to be a fine man who will, if given the opportunity, make the right decisions in the future.
You have been in a relationship with a young woman by the name of Carly Withers for approximately six to seven months. She is aware of your history and a letter she wrote to the court indicated that she is looking forward to a future with you, hoping that you can marry and have a family. She says that you are helpful to her and her mother, offering to always help out around the house and that her mother cares for you, which is confirmed in the letter tendered as part of Exhibit 8.
Your counsel submitted that you are a person moving on with your life finally. You are no longer dependent on alcohol. You have a steady ongoing relationship with plans to be married and you have resumed contact with your daughter and plan to ultimately resume contact with your siblings and your parents. Counsel submitted that you finally understand and feel empathy for Marlene McDonald and what her family has lost.
In relation to your personal circumstances, Stuart Donald Binion, you are, as I indicated, aged 41. Your parents, who came to court, are still married. Your mother was a hairdresser and your father an air conditioning plumber. You were born and raised in Lalor until you were approximately seven years of age and your family moved to Whittlesea, where your parents still reside. You have a younger brother who is 12 years younger than you and you have a good relationship with your family. You were educated at Lalor Primary and transferred to Whittlesea State School.
You were good at sport but not as good academically and you were described by your counsel as boisterous. You completed Year 10 at Whittlesea Technical College, having passed that, you worked part-time at a horse stud and also, in a local pizza shop whilst at school. You initially worked with your father upon leaving school, as well as doing other jobs, before starting and completing three years of a carpentry apprenticeship. You were, throughout this time, a member of the Whittlesea Cricket and Football Club. After completing the three years of carpentry, you were retrenched due to a lack of work and it was at this stage that you met your wife, Sue Binion. She had a two and a half year old son named Beau.
Shortly after you relationship commenced, your wife became pregnant with the second child, Joel, and you moved to New South Wales shortly thereafter, as her mother had a cancer scare. You decided to remain in Sydney and have lived there ever since. You had another son together and all three boys have been treated equally, as your sons. You have been a successful worker and you have enjoyed a good and stable family life. You worked for Baulderstone Hornibrook, the construction company, as a technical assistant and you went to TAFE to get further qualifications, in relation to rigging. That required, studying two nights a week for nine months, plus six months of practical work. Your job was as a rigger or dogman, which is driving the truck, putting the chain on and assembling and operating a crane. You have had a consistent working life and have been a good provider for your family.
When you were 15 years of age, you commenced drinking and around 16 you commenced using cannabis, which you used on daily basis until you moved to Sydney at the age of approximately 21 to 22. During your teenage years, you also used amphetamines heavily, injecting speed up to four times a week. All of this behaviour continued until you met your wife and by the time you moved to Sydney, you had changed and reduced your involvement, in relation to drugs, entirely. You and your wife had a third child Trent, so you have three boys, Beau, 20, Joel, 18 and Trent 16. Your wife has also worked industriously during that time, doing different jobs. You earn a substantial income from your jobs. In terms of your alcohol use, your counsel described that, until recently you used to drink quite heavily on the weekend, but abstained from drinking at all during the week. You gave up drinking on the weekends, in preparation for what you considered was going to happen to you, in terms of imprisonment. You go to work at 6 am, you leave at 6 pm. You do that five days a week. You and your wife have a house with a mortgage, which you have been paying off.
You have had two subsequent appearances before the courts in New South Wales. In 1990, you were dealt with for a drink/driving offence and in 1992, fined $300 in relation to an assault, which arose out of a fight with a workmate.
In terms of the offence, you accept that you were the person who was the conduit between Mr Bone, Mr Ardley and Mr McDonald. You were not a particularly a good friend of theirs and it was you, who knew John McDonald, through the cricket club. When asked to explain how you became involved in it, you told the police that you thought, perhaps McDonald approached you, because you were "fucking mad at the time, you know, a bit crazy. I used to like a bit of fight in them days, and you know, fucking on drugs and alcohol and shit, and maybe you know, he thought I was the idiot, I was the stooge wasn't I? Me and the other two guys."
There was to be large sums of money involved, you say, in the thousands, Mr Bone says the amount was $5000, Mr Ardley does not really refer to any particular amount. None of you received any of that money from McDonald. The only money, that was in fact involved, was the 600 odd dollars taken from the purse of Marlene McDonald, which was her holiday pay. It was you who took it, and there was distribution of that sum. You are not to be punished for that, but that was certainly part of your involvement on that night. You also, whilst confirming your intention to give evidence against John McDonald, offered an apology to the family of Marlene McDonald, saying that you understood to a degree how they felt, as you now have a family yourself.
You, Andrew Ardley, are now on a disability pension, in regard to a longstanding problem of diabetes. You were diagnosed with this condition in 1990 and currently require four injections of insulin every day to keep it under control. You are also on regular medication for hypertension and a peptic ulcer. You grew up in Whittlesea, the eldest of three children. Your father left the family home while you were still in primary school, you have had minimal contact with your father since that time, having last seen him in the early 90's and being unaware as to where he currently lives. You have a younger brother in his 30s, whom you have not seen for at least 12 years and a younger sister, also in her 30s, who you see very occasionally. Your mother still resides in Whittlesea and you have very limited contact with her.
You left Whittlesea when you were 19 and appear to not have had much in the way of contact with the area since that time. You left school at 15 to take on labouring work in the building industry, and your work history has predominantly involved work of that kind, generally on a short-term basis and when the work became available. Your longest period in one job was, a four year stint in the firm called Topax Trailers in Thomastown, as a general labourer. Your last employment was as a housepainter in Warrnambool in 1996, and you have been on the disability pension since mid-1998, as a result of your diabetes.
Subsequent to leaving Whittlesea, you have lived in various parts of outer suburban Melbourne, you spent some time in Warrnambool and have lived in Moe since 1997. You married in December 1990, a young woman by the name of Susan England. Although the marriage only lasted a short time, you and your wife had two daughters, Sarah aged 19, Kellie aged 18. Kellie has Downs Syndrome, and you also had a son Jessie, 16. Kellie and Jessie both still live with their mother in Churchill and there is now regular contact between you and Kellie and Jessie. Your marriage to their mother, lasted just four years and whilst initially it was a bitter separation between you, you now appear to be on reasonably good terms.
Your children spent a number of years in foster care, during the problem times. You have been in a de facto relationship, with Rosemary Clark, since March of 1997. You live together, in a Ministry of Housing house, in Moe.
As I indicated earlier, you have little to do with your mother, or your two siblings. Your mother has re-educated herself and is now a practising solicitor, in the Whittlesea area. You had a learning disability and left school at 15, at which age you commenced drinking, it was described as binge drinking. This appears to continue to this day. You drink for three or four days at a time, consuming as much as four or five litres of cask wine in a daily period, until your diabetes symptoms become very problematic.
You also abuse prescription medication, amphetamines and cannabis. You are still a daily consumer of cannabis. You have been assessed in a report prepared by Dr Simon Kennedy, a clinical and forensic psychologist, as being a person with some significant cognitive difficulties. He is unable to say whether, they have been exacerbated by your substance abuse over the years, but believes it to be likely, with the possibility that you have a substance induced brain injury, with related memory difficulties.
You have not been in trouble, apart from matters relating to cannabis possession, since 2000 and you are described as, a person who is easily led due to your cognitive difficulties. You equally have a number of mental and physical health difficulties, that will make incarceration more difficult for you.
As I have indicated, this is serious offending and if you were dealt with at the time of the offending, it would have merited, in my view, a significant custodial sentence, despite your youth. You lay in wait and the four of you attacked this woman in her home, removed her against her will from her home, her family and particularly her children, and you never said anything, or made any inquiries as to her whereabouts. They are, in my view, the truly aggravating features of your case.
However, there are also significant mitigating features that must be taken into account, including, but not limited to; your pleas of guilty and the stage at which you indicated those pleas, your cooperation with the police and your undertakings to give evidence against John McDonald in the murder charges, your youth at the time of offending, your lack of knowledge of the true intentions of John McDonald, the time that has elapsed since the commission of the offences, and your remorse. In relation to you, Mr Binion, the real changes in your circumstances and your ongoing successful life, in terms of being father, husband and member of the community. In relation to Mr Bone and Mr Ardley, medical, being both the physical and mental health of both you, and that you are now both on a disability pension.
Whilst initially I was of the view, that delay did not assist any of you, in determination of the appropriate penalty to be imposed, upon reflection, consideration and reconsideration of the authorities, I agree that it does have an impact, in terms of mitigating the penalty imposed and I have, accordingly, taken that matter into account.
It was submitted by your counsel, that I should impose a wholly suspended sentence, in respect of the offences to which you have pleaded guilty. I am unable to agree with that submission, but I do agree, that the sentences are capable of being partly suspended. You are all entitled to, a significant discount in respect of your cooperation with the police and your undertakings to give evidence against John McDonald, as without your evidence and with no body of Marlene McDonald ever having been found, the Crown would have virtually no prospect of McDonald ever facing trial.
It means your evidence is important and the legislature dictates, that such matters should be given appropriate reduction in the penalty that would otherwise be imposed. I do not intend to distinguish between you, in respect of the charge of kidnapping, as the different factors in your favour, in my view, all lead to much the same result. Your criminality is substantially the same, with the exception of you, Mr Ardley, who has also sexually assaulted Mrs McDonald, albeit briefly and stopping when challenged.
I am not going to impose a sentence that will include a minimum term, as I do not believe that the supervision of parole is something that is required in your cases. I therefore intend to impose a sentence and suspend half of that sentence. Taking into account, all of the factors to which I have referred and general sentencing principles, such as, just punishment, general and specific deterrence, your prospects of rehabilitation and personal factors, I sentence each of you as follows.
Gregory David Bone, Stuart Donald Binion and Andrew Neil Ardley, you are each convicted of one count of kidnapping Marlene McDonald and sentenced to be imprisoned for a period of two years. Andrew Neil Ardley, you are also convicted and sentenced to be imprisoned for a period of three months on Count 2, the count of indecent assault. I direct that one month of that sentence be served cumulatively upon the sentence imposed on Count 1, making a sentence of two years and one month's imprisonment.
I direct that, the sentence imposed on Gregory Bone and Stuart Binion is to be suspended after they have served nine months' imprisonment and in respect of Andrew Ardley after he has served ten months' imprisonment. I declare pursuant to s.6AAA of the Sentencing Act that the sentence I would have imposed, but for the plea of guilty and the state at which it was indicated, would have been; in the case of Bone and Binion three years imprisonment, and in the case of Ardley three years and three months' imprisonment.
That sentence is not taking into account any consideration of your cooperation with authorities.
The application for the taking of a forensic sample 464ZF is granted. Mr Bone, Mr Binion and Mr Ardley, I am going to make orders that a forensic sample be taken. That involves the taking of a swab inside the mouth. If you do not cooperate with that, force can be used and I am required to tell you that.
I declare that in respect of pre-sentence detention, 14 days pre-sentence detention has been served by Gregory David Bone, seven days pre-sentence detention by Andrew Neil Ardley and eight days pre-sentence detention by Stuart Donald Binion and I declare that such be entered in the records of the court.

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CERTIFICATE

I certify that this and the 18 preceding pages are a true copy of the reasons for Sentence of King J of the Supreme Court of Victoria delivered on 23 November 2009.
DATED this 23rd day of November 2009.

Associate to Justice King