R v Buck and Willcocks
[2012] VSC 489
•19 October 2012
| Do not send for reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0067 of 2011
0068 of 2011
0025 of 2012
| THE QUEEN |
| v |
| GARETH BUCK ROBIN WILLCOCKS |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2012 | |
DATE OF SENTENCE: | 19 October 2012 | |
CASE MAY BE CITED AS: | R v Buck & Willcocks | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 489 | |
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CRIMINAL LAW – Murder – Armed Robbery – Threat to kill – Theft – Plea of guilty – Sentenced as a serious violent offender – Significant history of prior convictions – Alcohol and drug abuse – Principle of totality applied - R v Verdins (2007) 16 VR 269 applied.
CRIMINAL LAW – Manslaughter – Plea of guilty – Limited prospects of rehabilitation – Significant history of prior convictions – Principle of totality applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson SC | Office of Public Prosecutions |
| For the Accused Buck | Mr S. Johns | Robert Stary Lawyers |
| For the Accused Willcocks | Mr D. Dann | Leanne Warren & Associates |
HIS HONOUR:
Gareth Shannon Buck, you have pleaded guilty before me to the murder of Craig King overnight on 7 May 2010. You have also pleaded guilty to unrelated charges of armed robbery and making a threat to kill on 17 December 2009, and a theft on 15 February 2010.
Robin William Willcocks, you have pleaded guilty before me to the manslaughter of Craig King.
Although the pleas to murder and manslaughter have been made, this is not an easy case in which to describe in any detail what exact role each of you played in the death of Craig King, except to say the case necessarily proceeds on the basis that you, Willcocks, did not do any act or agree directly or indirectly that an act be done intentionally so that Craig King would be killed or suffer really serious injury.
The circumstances leading up to Craig King’s death are as follows. On the night of 7 May 2010, George Goultidis drove the deceased to a flat where you were both living at 2/50 Maidstone Street, Ringwood. The purpose of the trip was for the deceased to sell drugs. When they arrived, you, Willcocks, came out to the car and you were driven to a nearby Automatic Teller Machine where you withdrew some money. On return to 50 Maidstone Street, you instructed the deceased to go into the house, which he reluctantantly did.
You, Buck, were inside the unit with a man called Nicholas Rewer. Shortly afterwards, both of you went in the car with the deceased and Goultidis to an ATM and then returned to the unit. Both of you and the deceased went back inside.
Later, you, Willcocks, got Goultidis to come inside and, as he did, you locked the door. You, Buck, had come out of the bedroom carrying what Goultidis thought was a sword; it had a blade of about 40 to 50 centimetres long. You ordered Goultidis into the bedroom. You, Willcocks, were in the bedroom weighing bags of amphetamines and complained that they were under weight. You, Buck, took Goultidis’ mobile phone and wallet. You took out his drivers licence and recorded his details on a leaf of paper in a note book which was later found at the unit by the police. There was some discussion between the two of you about taking both men to a remote park and leaving them there.
You, Buck, were looking more aggressively than you, Willcocks, who told Buck to keep the noise down. You, Buck, had taken the deceased into the bedroom and threatened to cut off one of his fingers. Both of you took the deceased back to the bedroom and tied him up. You, Buck, told both men to be quiet or you would stab them in a place that would stop them from yelling.
Eventually both of you took the deceased and Goultidis to his car.
You, Buck, drove. You had Goultidis in the passenger seat, and you, Willcocks, were in the back with the deceased. You drove to Koomba Park, Wantirna and parked the car in a car park near one of the tracks leading into bushland.
Both of you took the deceased into the bushland, leaving Goultidis behind. You took the car keys with you. The deceased said to Goultidis, “Come back for me”. The two of you returned about 15 to 20 minutes later without the deceased.
You took the deceased about 70 metres down the track and onto a smaller track through thick bush into a clearing. He was probably still bound. He was struck with a heavy blunt object around the head and stabbed and slashed around the face and neck region with a sharp edged implement, probably a machete. The prosecution case, which is consistent with the two pleas is that you, Buck, were responsible for the killing and you, Willcocks, were present.
After returning to the car, the keys were given to Goultidis and you, Buck, told him to drive back to Maidstone Street. Both of you told Goultidis during the drive that “Craig won’t be dealing for a while”, but not to worry as “he’ll be all right”. You both said that the “gear” which Craig had sold you was not good and he made you drive all the way to Dandenong and wait.
After returning to the unit, Goultidis was given some amphetamines to use and some amphetamines to sell and then return the money. He believed that the drugs had been taken from the deceased.
You, Buck, gave him your contact details.
He then left with Willcocks to drive you to work, but you decided to return to the unit, so he drove you there. He then returned to Koomba Park, but was unable to locate the deceased.
On Saturday 8 May, Goultidis and Debra-Lee McKenzie, the partner of the deceased, reported the deceased as missing to the police. On that evening, Goultidis took $300 to the unit for the drugs. He gave it to you, Buck, saying that it was for Rob.
On Sunday 9 May, the police found the deceased’s body in Koomba Park; it had been partly buried under rusty mattress springs and foliage.
You kept in touch with Goultidis over the next few days, asking to meet him.
When the crime scene was examined, some rope was recovered and various pools of blood were observed.
On post mortem, the deceased was found to have died from mixed blunt and sharp force injuries to the head and neck, and chopping type injuries were observed to the lower face and neck.
On Monday 10 May 2010, Sarah Shaddick, Buck’s former girlfriend, came forward and spoke to police. She told police that you had confessed to her that you had killed the deceased. You deny that you made that confession, and whether you did or did not will not have any significant consequences in the sentence.
In a statement made to the police on 11 May 2010, she said you told her:
·that he had ‘fucked the cunt up really bad and stabbed’;
·he had tried to choke him with a guitar string;
·he had brought him back to life after choking so he could do it again;
·he had then slashed his throat because he did not want to listen to the sickening gurgling sound anymore;
·the deceased had also been stabbed in the body.
You were both arrested on 11 May 2010.
When the premises at Maidstone Street were searched, a number of items were recovered which tended to confirm what Goultidis had told the police. In addition, two guitars, each with a string missing, and a green-handled machete were recovered.
When interviewed by the police you, Buck, told them that you had nothing to do with the death of the deceased, although he had been to your place once with a man whose description met that of Goultidis, but not at the time of these events.
You, Willcocks, denied any involvement in the death of the deceased.
You, Buck, are to be said to be the actual murderer. You, Willcocks, were present and although you went to Koomba Park expecting that some harm might be done to the deceased, it did not include death or really serious injury.
In relation to the other indictment to which you, Buck, pleaded guilty to armed robbery, threat to kill and theft, the armed robbery and threat to kill involved you, Buck, and another unidentified man going to a boarding house at 197 Canterbury Road, Heathmont on 17 December 2009 and there taking a mobile phone and $550 belonging to Logan Robilliard at knifepoint. Your co-accused was armed with a knife and you had a pair of scissors, but later armed yourself with a large kitchen knife. This forms the charge of armed robbery. You and the other male said that the reason you were at the house was to recover your cousin’s laptop that was supposedly stolen by some resident of 197 Canterbury Road.
You threatened Robilliard and said “Don’t fucking ring the jacks or we will come back and kill you” and “ask anyone in Mansfield, I am not afraid to do it”. This forms the charge of threat to kill. The theft charge occurred on 15 February 2010 when you stole a phone from Ryan Giardino who had got onto a bus you were on at Ringwood Station. He was playing games on his phone. When the bus stopped, you got off and took the phone and told Giardino he would have to get off the bus to fight for his phone. He did not do so. You were seen on CCTV footage of that incident wearing a jacket, which was later found at your house. Robilliard had described a similar jacket and a tattoo of a devil or demon on your neck. You have such a tattoo. When interviewed by police, you admitted the theft but told police you had no recollection of the armed robbery or the threat to kill.
Robilliard was very scared as a result of the offences involving him.
On the plea, Craig King’s mother and sister read out their victim impact statements. They both behaved with great dignity. The effect of your offending on them has been close to overwhelming. I received victim impact statements from Craig King’s former partner, Victoria Ross and their son Rocco, who was seven at the time of his father’s death. Ms Ross explained the loss of Mr King to his family and friends, but in particular the loss to his three children.
I have taken into account the impact on the victims of your offending. Any sentence that I will impose is of little consolation to them.
I turn specifically to you, Willcocks. I received a report dated 4 December 2011 by Dr Danny Sullivan. You are now 34 years of age, having been born on 15 June 1978. You were born in Northampton in the United Kingdom and came to Australia with your family in 1981.
You are the middle of three children with an elder brother and a younger sister, both of whom are married with children.
When your family arrived in Australia, the family ultimately settled in Wantirna and you attended Regency Park Primary School. You eventually completed VCE at Heathmont Secondary College. You had a fairly unremarkable school life, but struggled to make friends. You were quite good at football and your father pushed you in that regard. You regarded your father as authoritarian and eventually when he assaulted you, you retaliated with force.
Towards the end of your schooling, you commenced substance abuse which has marked the rest of your life.
After leaving school, you attended RMIT to study building and construction but dropped out after six months. That was probably in 1995 or 1996. You returned there in 2005, but failed to complete a furniture technology course. You have since completed your Certificate II in information technology.
You worked in furniture making with your father and other employers. It is not clear what the dates of that employment were, but I suspect it is between 2005 and the end of 2008. In October 2005, you were imprisoned for six months to date from July 2005, and you would have been released in about December 2005, and a further one month in May 2006. You appear, therefore, to have been at large from June 2006 until about November 2008, and perhaps more significantly, not in much trouble in that time. In 2007, you commenced a relationship with Kelly and you are close to her two children aged about 14 and 10.
You managed during that time to get a full driver licence and bought a car. In 2008 you played a season with Eastern Lions Soccer Club.
You served a further term of imprisonment commencing in December 2008 (with 24 days presentence detention). That sentence was for burglary and theft, and you were sentenced to 15 months with a non-parole period of nine months. You received a further sentence of six months accumulated on that sentence in January 2009. It seems to follow that you then became eligible for parole in about December 2009 or early 2010. You would have been on parole until mid 2010 and you were on parole at the time of this offending, which is a matter in aggravation.
You went back into custody in May 2010 and have been in custody since. In this period of imprisonment, you have been at the Custody Centre in the Acute Assessment Unit, at Melbourne Assessment Prison and one year at Port Phillip Prison. You were transferred to St Pauls Psychiatric Unit and then to Thomas Embling. You have since been returned to Port Phillip.
Your physical health appears to be all right.
You have a history of episodes and psychiatric illness from 1999 onwards, but it seems fair to say that Dr Sullivan attributes most if not all of those difficulties to substance abuse.
As a young man you consumed alcohol from 13 years of age and regularly from 16, and by 17 years of age you reported that you became angry when intoxicated and you have consumed large amounts of alcohol in recent years.
As a teenager you used butane and paint occasionally. From 16 years onwards you used cannabis on a daily basis. Later you used amphetamines and then from 2005 “ice”. You had used heroin intravenously from age 19 but had got off it in 2005, demonstrated by your earlier history, and you intend to seek further treatment when released. You have abused prescription medication as a heroin substitute. You have used LSD, ketamine and “fantasy”, and of those you have used LSD about 100 times with varying side effects.
Under the heading “Opinions and Recommendations”, Dr Sullivan said this:
“The primary diagnosis is one of polysubstance dependence involving alcohol, cannabis, opiates, amphetamines and benzodiazepines. Mr Willcocks has engaged in heavy substance abuse from his early teens, and this has been significantly involved with past offending. He has managed periods of abstinence with medical assistance, and appears motivated to do so, although has limited past success at abstinence. The current offence occurred in the context of his relapse into substance abuse despite being on parole. He has had a psychotic episode, requiring transfer to Thomas Embling Hospital, which was considered due to substance use in prison.
There is no clear indication of clinically significant past psychotic episodes, and given his substance use history and previous indications of psychotic symptoms are most likely attributable to drug intoxication or withdrawal. Certainly Mr Willcocks’ longitudinal history is not consistent with a diagnosis of a more longstanding psychotic illness such as paranoid schizophrenia. He reports a history of mood disorder with past antidepressant treatment and intermittent suicidality. He would be predisposed to mood disorder by substance use in Mr Willcocks’ past despair at this situation. There is no indication of clinically significant personality disorder or of any cognitive impairment.
There is no indication that any mental disorder except substance dependence was associated with the alleged offence. Mr Willcocks may have been intoxicated or withdrawing sufficiently to impact upon his ability to think calmly or clearly or to make rational choices. Drug use may have been associated with impaired judgment and may have disinhibited him.
I think it is likely that Mr Willcocks’ incarceration may weigh more heavily upon him if he has further psychotic episodes. Avoidance of drug use in prison and compliance with prescribed treatment will reduce the likelihood of this. He is able to receive treatment and the predominant effect of his propensity to drug psychosis might be to restrict his ability to transfer to other prisons.
He should undertake comprehensive drug and alcohol interventions and any programs which might enable him to obtain employment upon eventual release. Mr Willcocks should continue to be reviewed as need by psychiatric services in prison.”
Your criminal history is significant from 1997 to 2009. Your offending relates almost entirely to dishonesty, drug use and street offences. Your history is an example of the sort of history often seen in these courts relating to drug addicted persons. You have been placed on community based orders, which you breached, suspended sentences which you breached. You then received a series of relatively short terms of imprisonment. All of your cases were dealt with in the Magistrates’ Court, but all in all you could not have been shown more leniency or given more chances, which you have persistently abused.
You have been active in prison, taking up such courses as has been made available to you, and I received a number of items on the plea setting out what you have achieved at the Kangan Institute and those matters are to your credit and give some hope for the future.
As I have already said, your case proceeds on the basis that you did not kill the deceased. Your conduct is nonetheless serious. You were, whilst on parole, prepared to use and deal in drugs. You were prepared to falsely imprison the deceased and Goultidis. You were prepared to take Craig King out into the bush in the company of a man who was armed, and you must have known he was armed. You have never actually advanced any reasonably complete account of these events. You must have appreciated that something falling short of really serious injury was to befall Mr King. You plainly did nothing to help him. You knew that he had been seriously assaulted and was almost certainly dead. You did nothing to help except to go into the business of selling the drugs which had been taken from him.
You have pleaded guilty and I am prepared to proceed on the basis that you are remorseful and regret what you have done. The plea is of value and many persons in your position have gone to trial, although it was to your advantage to be able to plead guilty to manslaughter, but that does not reduce the value of your plea.
The real difficulty about the case is that there was a certain inevitability about these events and a man is dead as a result. You have now completed the unexpired portion of your parole and I have taken that into account with respect to the principle of totality.
I have to have regard to both general and specific deterrence which are relevant, as is just punishment. Your prospects of rehabilitation are not all that good because of your history, but they are by no means non-existent. You are still a young man. The maximum term of imprisonment for manslaughter is 20 years. I have taken into account that your sentence has been significantly delayed due to no fault of your own, and that is a period of about 12 months.
You are sentenced to be imprisoned for seven and a half years with a non-parole period of five and a half years. You have served 704 days by way of presentence detention and I direct that that fact and its details be recorded in the records of the Court.
I state that, were it not for your plea of guilty, I would have sentenced you to be imprisoned for ten years with a non-parole period of seven and a half years.
Gareth Buck, on your plea I received a report from Dr Lester Walton dated 10 October 2011. I also received by way of affidavit a large volume of material about your medical conditions.
You have 47 prior convictions from 15 court appearances. I have excluded from that total a number of offences for which you were placed on community based orders, some more than once, then on suspended sentences and then for which you were directly imprisoned.
More particularly, on 21 May 2002 you were sentenced to be imprisoned for three and a half years with a non-parole period of one year for attempted armed robbery and intentionally causing serious injury.
That offending involved you stabbing a man in the chest and upper arm. That arose out of a “sham” drug deal. Apart from the fact that the sentence imposed on you was merciful, it is important because the fact that you have been convicted of intentionally causing serious injury means that for the charge of murder, and perhaps less significantly for the charge for threat of kill, you fall to be sentenced as a serious violent offender. I declare you fall to be so sentenced and direct that this declaration be entered in the records of the Court.
The consequences of the declaration means that I could sentence you to a disproportionate sentence. I have not been urged to do so and I will not do so. I am obliged, however, to treat the protection of the community from you as a principal purpose for which this sentence is to be imposed.
The other important feature of your criminal history is that on 9 September 2004, you were convicted of false imprisonment, intentionally causing injury, arson and reckless conduct which may have placed another in danger of death. In a drug related episode you had bound up a young woman with electrical tape, first of all in your home and then a garage or shed. You were attempting to obtain information from her. You threatened her, burnt her hand with a piece of cardboard which you had soaked in kerosene and set alight. You left her bound up in the garage for about four hours. You were sentenced to be imprisoned for a total of four years six months with a non-parole period of three years. The collective similarity of that offending and the present offending cannot be avoided. At the time of that sentence you had served about seven months imprisonment.
It followed that the second sentence was in breach of the earlier parole in which you had been released on 19 November 2002 and you were reclaimed for two years, five months and 29 days. The sentence of 9 September 2004 was to be served cumulatively on that period. That meant you were then serving six years 11 months and 29 days with a non-parole period of three years. Unless given parole you were liable to be detained until January 2011. You were given parole on 2 November 2007, but actually released in June 2008 because you had been serving another sentence. You breached your parole by this offending and were claimed for the two years seven months and 24 days still owed.
In December 2010, you were sentenced for some other unassociated offending to two years with a non-parole period of 15 months.
You were then facing a sentence of four years seven months and some days with a non-parole period of 15 months. On that sentence you were eligible in March of this year, but you were on remand for this offending.
Since you are serving a sentence for which a non-parole period has been fixed, the non-parole period I fix will be a new non-parole period to commence from today.
By operation of law, the sentence I impose today will be cumulated upon the period you will have to serve for the cancellation of your parole. There are no exceptional circumstances which would cause me to do otherwise.
I do, however, intend that these sentences be served concurrently with the other sentences you are now undergoing.
The fact that all of the offending before me occurred whilst you were on parole is a very significant matter in aggravation, particularly given the history I have just outlined.
I regard your plea of guilty as being the most important feature in mitigation and I accept that you are remorseful. You apparently do not remember in any detail the events, but you have accepted responsibility for them.
You are still a young man being 31 years of age. Your life has been controlled by the abuse of alcohol and other drugs. The abuse of alcohol commenced really from about the age of 12 and from 15 years old used heroin and marijuana, and from 18, amphetamines occasionally. It is suggested that on the day of offending you used cannabis, methadone, amphetamine, benzodiazepines and xanax in unknown quantities.
You have limited education and did not do well at school. In your last two years of schooling you attended four different schools. You grew up in and around Healesville. Your parents separated when you were eight or nine. Your father has suffered both physical and mental illness, including depression. There appears to have been no other mental illness in your family. You have the support of your mother and your grandmother. You have a psychiatric history from the age of 12, but have not undergone directly any hospitalisation for that. You have been treated in prison in the past for your depression. It appears on the material available to me that when you were most recently released from prison before these events you did make some attempts to seek assistance and psychiatric assistance, but the attempts were unsuccessful.
You now receive methadone, anti-depressants and anti-anxiety medication. Up until mid 2011, you had been receiving anti-psychotic medication which you chose to discontinue. You have a back injury for which you receive treatment and you have contracted Hepatitis C.
In his report, Dr Walton. under the heading of “Opinion” said:
“Gareth Buck has a lengthy history of poly-substance abuse and I suspect that at times he’s suffered from episodes of drug induced psychosis, visual hallucinations being characteristic of that particular psychotic disturbance, as is paranoia. There have also been recurring depressive episode over the years. At the time of my latest assessment Mr Buck appeared to be suffering from drug induced sedation but no diagnosable mental condition. Mr Buck is a man of low-ish intelligence but not intellectually disabled. In the fact of Mr Buck’s claimed amnesia I can simply make no sensible comments about what may have been his mental state at the time of the offending. Surrounding the incident he does recall continuing with poly-substance abuse but he does not report any striking psychiatric phenomena as such. Overall Mr Buck’s prognosis appears to be rather poor. He shows no obvious interest in rehabilitating himself from drug and alcohol abuse. From time to time his psychiatric symptoms are likely to re-emerge as troublesome and continuation of prophylactic mood stabilising medication can be justified. There is no current evidence of any drug induced psychosis and therefore the cessation of anti-psychotic medication is appropriate.”
I say in parenthesis, of course, that occurred.
“I suspect that Mr Buck’s chronic depression has from time to time contributed to his exercising of poor social judgment and that is relevant of his history of offending. Such considerations exist at a level of possibility only in relation to the latest incident. Demonstrably incarceration does not provide lengthy enduring specific deterrence for Mr Buck. Perhaps some comfort may be taken from the fact that he does not seem to be an habitually violent person.”
A further report was provided from Dr Simon Kennedy which, apart from confirming matters of diagnosis, did not really take matters further.
I mention the affidavits which have been filed on your behalf and I come to deal with them.
I should say that your legal representatives, in particular your solicitor Grace Morgan, have done all within their power to be of assistance to you. At the end of the day, your medical conditions, particularly your physical condition relating to severe chest pain, is largely unresolved. I am satisfied that to a degree the principles set out in the case of R v Verdins[1] do apply in your case, and they apply in relation to your ongoing depression and the effect that that will have on the serving of your sentence, and I have taken them into account to that extent.
[1](2007) 16 VR 269
This is a very serious example of the crime of murder. It was both brutal and senseless. The armed robbery, for which the maximum penalty is 25 years, is not a very serious example of that offence, but you do have a history in relation to it. The threat to kill is largely subsumed in the armed robbery. It carries a maximum penalty of ten years, as does the crime of theft.
I believe that you do have some ambition to reform yourself, and your prospects, although bleak, may hopefully improve having regard to the long sentence I am obliged to impose on you.
In fixing the sentence, I have had regard to the principle of totality with respect to the period of your cancelled parole, and to the fact that you have been in custody now since May 2010.
I have also had to have regard though to the fact that there are two other distinct occasions of offending, although I must say that I do not think that the third incident will in all the circumstances warrant separate punishment.
I must have regard to both general and specific deterrence and just punishment. In relation to the crime of murder, for which the maximum penalty is life, I am obliged to sentence you as a serious violent offender, and the protection of the community is the principal purpose for which my sentence will be imposed.
For the crime of murder you are sentenced to be imprisoned for 20 years.
For armed robbery, three years.
For threat to kill, one year.
For theft, 14 days.
I order that one year of the sentence of armed robbery be served cumulatively upon the sentence of murder. Because in relation to the crime of threat to kill you fall to be sentenced as a serious violent offender in which there would be a presumption in favour of accumulation, I order that that be concurrently with the sentence imposed on the count of murder and the count of armed robbery.
For completeness I simply order that the sentence on theft be served concurrently with the sentences you are undergoing.
As already stated, I order that those sentences be served concurrently with any other sentence you are undergoing, save and except for such sentence you are serving for uncompleted parole on which this sentence will be cumulative.
I fix a new non-parole period from today’s date of 18 years before you will be eligible for parole.
I state that, were it not for your plea of guilty, I would have imposed a sentence of 24 years with a non-parole period of 21 years. I direct that this statement and its details be entered in the records of the Court.
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