R v Cardamone
[2017] VSC 493
•25 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
CRIMINAL DIVISION
S CR 2017 0044
| THE QUEEN | |
| v | |
| MICHAEL CARDAMONE | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Wangaratta |
DATES OF HEARING: | 21 & 22 August 2017 |
DATE OF SENTENCE: | 25 August 2017 |
CASE MAY BE CITED AS: | R v Cardamone |
MEDIUM NEUTRAL CITATION: | [2017] VSC 493 |
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CRIMINAL LAW – Sentence – Murder - Incitement to murder – Pleas of guilty – Victim abducted and tortured – Prisoner on the sex offender register – Offences committed whilst on parole - Remorse – Subjective and objective elements - Poor prospects of rehabilitation – Serious violent offender – Community protection – Sentence of life imprisonment - Non-parole period – Considerations in fixing – Minimum term – Declined – Prisoner sentenced to life without parole - Sentencing Act 1991 (Vic) ss 6F and 11.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert QC with Ms J Warren | Office of Public Prosecutions |
| For the Accused | Mr P Tehan QC with Ms K Blair | Patrick W Dwyer |
HIS HONOUR:
Michael Cardamone, on 30 June 2017 you pleaded guilty in this Court, sitting at Melbourne, to the following charges:
1.Murder of Karen Maria Chetcuti on 12 January 2016;
2.Incitement to murder the prosecution witness Edward George between 22 February 2017 and 30 March 2017;
The maximum penalty for murder is life imprisonment. The maximum penalty for incitement to murder is also life imprisonment.
There is also a related summary offence of breaching a prescribed condition of your parole order, by murdering Karen Maria Chetcuti. Your counsel informed me that you plead guilty to that offence.
On Monday 21 August and Tuesday 22 August 2017 in Wangaratta, I heard an opening of the prosecution case from the Chief Crown Prosecutor, Mr Silbert QC, who appeared with Ms Warren of counsel. I also heard the presentation of thirteen victim impact statements which the Court received as exhibits. Some of those statements were read to the Court and in one case by the deponent. In addition, I heard detailed submissions on the sentence to be imposed from Mr Tehan QC, who with Ms Blair of counsel appeared on your behalf. I also heard a response to those submissions from Mr Silbert.
Having considered all of that material it is now my duty to sentence you for these offences.
You murdered Karen Chetcuti in the early hours of 13 January 2016 in a remote location near Lake Buffalo. According to the prosecution case the likely motive for your crime was connected with a sexual interest they allege you had in Ms Chetcuti. You have never given a truthful account of what occurred. In some respects, whether that was your motivation or not is of little consequence. I believed I had ceased to be amazed at the level of violence that some men are capable of inflicting on defenceless women, but what you did to Karen Chetcuti over a number of hours and for no apparent or logical reason, does indeed amaze me.
As I have noted, you have declined to subsequently explain your conduct in any worthwhile or logical sense. What you have said about Ms. Chetcuti’s death on the eighteen occasions you said anything, was designed to mislead police and incriminate others, though some aspects of your later accounts may carry an element of truth concerning what was actually done to Ms Chetcuti.
I will shortly return to the detail of that but this much is clear on the material. Your conduct in relation to the murder of Ms Chetcuti was extraordinarily vicious, callous and thoroughly unprovoked. The crime you committed was, quite simply, horrifying, depraved and disgusting.
Circumstances of offending
At the time of her death on the night of 12 January 2016 Karen Chetcuti was 49 years of age, having been born on 24 April 1966. She was employed in the records department at the office of the City of Wangaratta. Relevantly, she drove a red two-door Citroen coupe which you and the witness Eddie George later destroyed by fire to conceal what you had done.
Ms Chetcuti had been married but was divorced from her husband Tony. Apart from when her two children regularly stayed with her, she lived alone on her 10 acre property at Whorouly, which is a settlement about 30 kilometres from Wangaratta.
At the time of her disappearance and death on 12 and 13 January 2016 she was living alone at her property, with her children staying with their father in Wangaratta. The property on which you lived with your mother at the time of these offences is in the same area and adjacent to hers. For some time you were her neighbour and had shown interest in having contact with her.
Historically, the contact that Ms Chetcuti had with you as her neighbour was minimal. There is evidence to suggest that she was unsettled by your occasional offerings to assist her around the farm.
Karen Chetcuti was last seen by those who knew her on the night of 12 January 2016 at the Whorouly Hotel between approximately 6:00pm and 7:45pm. Years before Ms Chetcuti and her husband had been the publicans at the hotel. It is situated only 200 metres from the entrance to her property. Tuesday 12 January 2016 had been a hot day in the Wangaratta district with a maximum temperature of 37 degrees.
That evening at the hotel Ms Chetcuti drank some beer, spoke to her neighbour, Brian Gambold, and to the hotel publican Graham Wood.
She left the hotel at about 7:45pm and drove the short distance to her home. After she got there it appears from later observations that she had a meal and a glass of wine. She then apparently did a number of other things around her house before you arrived and attacked her in whatever form that took.
At the time of these events you were on parole for offences of rape, committing an indecent act on a child and making threats to kill and inflict serious injury. These offences were committed in March 2005. By January 2016, you had resumed living in the Whorouly area effectively unsupervised following your last release from custody on parole on 14 July 2015 – six months earlier. There was about nine months of your parole left.
During the morning of 12 January 2016 you had been in contact with Eddie George, a man you had known for some eight years and who lived in Myrtleford. The main purpose of those contacts was to obtain methylamphetamine from him. The evidence before me indicates that you have a long standing drug dependency on that and other drugs.
At about 9:00pm that night, your mother was looking for you. For whatever reason, at 9:09pm you rang the mobile phone of Ms Chetcuti but she did not answer. At about the same time her last known communications were occurring on social media via messages on Facebook. The last of those was at 9:18pm. You later falsely claimed to police that she was at your place at 9:15pm to collect cherry tomatoes.[1]
[1]Depositions at [1398].
The records show that at 9:40pm you again rang the mobile phone of Ms Chetcuti and the call was answered because a call of 1 minute and 6 seconds is recorded. There are further contacts between your phone and Ms Chetcuti’s phone at around 9:55pm, but the circumstances of those calls and whether she actually participated in any of them is unknown. In all likelihood she did not.
The prosecution invite the conclusion, which your counsel has informed me you accept, that between 9:18pm and 10:30pm you physically attacked Ms Chetcuti. Following that attack on her in whatever form that took, you then must have restrained her by binding and possibly gagging her. You then left her either at her premises or your premises for some period of time. It seems more likely that you left her in a shed on your property because on the following day you were observed to have ‘sprayed out’ the floor of the shed. At this stage she was still alive and, if she was conscious, she must have been very frightened.
After further contact between you and Eddie George at about 10:30pm, you drove Ms Chetcuti’s Citroen car to Myrtleford. Both your phone and Ms Chetcuti’s phone, which was obviously still switched on and in her car, registered in the Myrtleford area. It is likely that Ms Chetcuti was not in her car when you drove it to Myrtleford.
After making contact with Eddie George you obtained methylamphetamine and sometime later you drove back to Whorouly in Ms Chetcuti’s car arriving close to midnight.
Whatever had happened during your attack on Ms Chetcuti, by the time you returned to your home you must have decided that you would kill her. You had obviously also realised that to conceal your crime something needed to be done about her car. So in the early hours of the next morning, 13 January 2016, you again went to Myrtleford in that vehicle. In that town you left the Citroen parked before obtaining a taxi from Wangaratta to bring you back to your home. You arrived back at your home at Whorouly at about 3:30am.
You then got into your own Nissan Patrol vehicle and drove back towards Myrtleford. You must have had Ms Chetcuti in the car with you on this trip. The evidence of the phone tower contacts indicate that for two and half hours you were in the Lake Buffalo area, which is about 20 kilometres south of Myrtleford.
It is during this time that you murdered Ms Chetcuti. The prosecution put their case on what occurred based on the physical evidence at the scene where Ms Chetcuti’s body was discovered, the toxicology findings, the findings of the pathologist and certain things said by you. The conclusion to be drawn as to what you did to Ms Chetcuti is as follows.
I have already described that sometime between 9:00pm and 10:30pm on Tuesday 12 January 2016, for unknown reasons, you attacked and incapacitated Ms Chetcuti. That attack included you binding her wrists and ankles with cable ties, duct tape and rope.
Having taken her to the vicinity of Lake Buffalo in the early hours of 13 January 2016, and using her skirt, cable ties and duct tape, you bound and gagged her. At some stage during the time you controlled her, you administered her with both Xylazine and methylamphetamine. You also injected battery acid into her. You inflicted severe injuries to her head and torso. The blows to her head caused a fracture of the skull to the right side extending inside the cranium to the mid-line. I reject any suggestion that this injury might have been inflicted in some way unintentionally. You fractured six of her ribs, and the signs of haemorrhage indicate that when this occurred she was still alive.
Likewise, when she was still alive, bound and incapacitated, you doused her with petrol and set her alight. In all likelihood, the inhalation of gases and associated thermal injury and deprivation of oxygen caused her death. The presence of various chemicals found in petrol and which were identified in parts of her body means that she had inhaled the vapour, thus demonstrating that the burning occurred while she was still alive. The post-mortem report puts this as a primary cause of death coupled with the severe blunt force trauma to the head and torso.
Probably after she had died, you then used your four wheel drive vehicle to drive over her body causing injuries to other parts of her body including fractures to her vertebrae, pelvis and scapula. Although you were then claiming Eddie George had done this, you told police that as the vehicle was driving over Ms Chetcuti’s body it became stuck under the car and was dragged for some distance.
You then left the presumably now deceased Ms Chetcuti in the vicinity of where she had died and she was later found pushed to the side of the track. Those who found her body saw both the patch of burnt ground on a track where you had set fire to her and her body left off to the side of the track and in the foliage. That is depicted in the crime scene photographs which I have examined. They show that you treated her and her dead body with absolute contempt and consistently with your inability to see females as ‘individual human beings’.[2]
[2]See The Queen v Michael Cardamone – per Judge Wood - 1 December 2006 [2006]VCC 1635.
As to the allegation of an actual sexual assault on Ms Chetcuti while she was in your custody, I accept the submission by the Chief Crown Prosecutor that I can reach no conclusion as to whether you actually engaged in any sexual act with her. Though your sexual interest in her may have been part of the original motivation for what you have done, the evidence does not permit me to reach a conclusion as to whether you forced yourself on her sexually. Such an action by you would have been yet another aggravating circumstance and would have to be established by the prosecution beyond reasonable doubt. It has not been, and is not pressed by Mr Silbert.
Having done these terrible things, early in the morning of 13 January 2016 you returned to Myrtleford. After going to a Caltex service station and purchasing two cigarette lighters, you left the store and were seen on CCTV to have been bare footed, apparently having disposed of your shoes. Later you attended a car wash, and for eight minutes put your Nissan Patrol four wheel drive through the washing process. Some hours later you returned to the car wash and again had your car washed. In the afternoon you went back to Myrtleford and for a third time went through the car wash process. This time there was both washing and vacuuming involved in the vicinity of the driver’s door. You were also seen in Myrtleford later that day driving what was obviously Karen Chetcuti’s car.
Later in the evening of 13 January 2016, you were now aware of police interest in the missing woman. You approached some members of the police force who were searching for Karen Chetcuti and told them a series of lies about when you had last seen her and the reasons for your contact with her. You also suggested that they search in the vicinity of the Ovens River, which of course you knew would be futile. Part of your narrative at that stage included a description of what you had said about her asking you for cherry tomatoes. You claimed she was at your place obtaining them some time after 9:00pm. That was intended to give an innocent explanation for your contact with her. In order to corroborate your story you actually placed a container of those tomatoes in her refrigerator. However the container bore only your fingerprints and not hers, which put the lie to what you had said.
Later that night you again went to Myrtleford to see Eddie George for the purpose of again obtaining and using methylamphetamine. You also asked him to assist you with a motor vehicle telling him you were doing an insurance job for some drug dealers. What you were really asking him to do was to help you destroy Ms Chetcuti’s Citroen. He agreed, and ultimately sometime after 4:30am on 14 January 2016, you took her vehicle to a location in Halls Road near Lookout Hill where the vehicle was later incinerated. George also attended the scene driving your vehicle. After doing that you and George left the scene in your Nissan Patrol. Ms Chetcuti’s vehicle was destroyed by the fire.
Having done what you did, and without any apparent regret, you took every conceivable action to avoid responsibility for Ms Chetcuti’s murder.
On the afternoon of 14 January 2016, after police came to your house and requested it, you made a sworn statement about your contact with Ms Chetcuti at the time of her disappearance. In that statement you told a series of elaborate lies. You described how you had had a conversation with her on the night of 12 January and had invited her to come and obtain some tomatoes. You said she gave you her mobile phone number. You claimed she had come to your house to obtain that produce and that you and she had a ‘big chat’ about ‘farm stuff’. She finally left your house, you said, and when you looked at the time it was 9:15pm. That, you claimed, was the last contact you had with her.
The lies you told to the police were designed to explain your contact with her the previous Tuesday and why you had had telephone contact with her. After the written statement was completed you approached police and told yet more lies about why they might find your cigarette lighter in Ms Chetcuti’s car, telling them you were in the car ‘the other day’ and left it there.
On 15 January 2016 it was proposed that you, your mother and your sister would go on holiday to Lakes Entrance but, having embarked on the trip, after a short distance you decided not to go. Clearly you were feeling the pressure of the investigation and also felt you needed to keep in close touch with it.
Later that day you had an extended conversation with Detective Senior Constables Wallace and Dodemaide from the Homicide Squad. That conversation included your continuing false denials of any involvement in Ms Chetcuti’s disappearance and death. Your assertions included your complaint that because you were on the sexual offender’s register as a result of your prior convictions, local people were ‘pointing the finger’ at you and that you were ‘over it’. You also said you hoped the police found her safely or the person who had ‘done it’. Bearing in mind what you had done, the callousness of your conduct and lack of any regret was extraordinary.
You also had a conversation that day with a journalist from The Age, acknowledging that you had had contact with the deceased on the Tuesday and that the person or persons who killed her must have been waiting for her when she went home. Knowing she was there alone, that of course is what in fact you did. You claimed to have heard cars leaving at night and seeing Ms Chetcuti’s car in Myrtleford.
On 16 January 2016 your elaborate charade continued. At about 1:47pm, you rang your solicitor Geoff Clancy and told him you had been kidnapped by two Lebanese men and were being held in the boot of your car. As a result, Clancy rang the police and a description of the vehicle was circulated Victoria wide.
By this stage you were in fact in Melbourne in your white Holden Calais sedan and withdrawing cash from ATMs.
In the early hours of Sunday 17 January 2016, police identified your car in the St Kilda area and, following an attempt to intercept you, so began a pursuit for more than an hour, which ended in Ringwood, after which you were then arrested. In the interview with police that followed a new version of the death of Karen Chetcuti came from you. That version introduced two mythical Lebanese men, who you were suggesting must have killed Ms Chetcuti. You claimed what you could say about them and what they did was limited because you and your family were being threatened by them. You later told police that they had told you where Ms Chetcuti’s body was and that you would assist the police with that information.
Meanwhile police and volunteers searched in the Lake Buffalo area for Ms Chetcuti’s body. Through your counsel you had claimed that the reason they searched in that area was because of what you told them, albeit that at the time you were trying to implicate Eddie George. That was not so. The police were searching in the area because they had received information about possible scuff marks at the spill way area of the lake.[3] Everything you said to police was designed to divert them from the truth to protect yourself from being charged with murder.
[3]Depositions at [284].
Late in the evening of 17 January 2016 police took you to Myrtleford, with you telling them you would show them where Ms Chetcuti’s body was. You directed police to various off roads pretending to disclose the correct location. This went on into the early hours of 18 January.
During that time you gave a series of false accounts of what happened to Karen Chetcuti. You claimed that the two Lebanese men had shown you Karen Chetcuti restrained in her own car. You claimed they threatened you with a gun not to say anything. You claimed that these two Lebanese men had told you how they killed Ms Chetcuti by burning her, bashing her with bars, running over her with the car and torturing her. Later you seemed to suggest that because Eddie George had become involved with these men to get rid of the car, he may have been more involved.
You had been made aware that police had spoken to Eddie George and that he had made a statement concerning his assistance to you in destroying Ms Chetcuti’s car. The consequence was that later that day the Lebanese story was eventually abandoned and your account to police changed again. Now you claimed it was Eddie George who had killed Karen Chetcuti, although you admitted you were present for what occurred.
Later on 18 January in the holding cell at Wangaratta Police Station, you spoke to Detective Sergeant Dolan and told him the new set of lies. You said to him that you were ‘not the one who knocked her’ but that it was ‘all Eddie’, referring to Eddie George. You described Eddie George being at your place at Whorouly and, when Ms Chetcuti was there having coffee, you said he placed the animal tranquiliser in it. You said he then got into her car with her and then later returned to your house with her in the boot. You said he killed her by running over her and that he also tried to ‘light her on fire’.
You expressed frustration at having to tell this false story a number of times. You complained that George, having murdered Ms Chetcuti, was now putting the blame on you.
You said you would identify the location of where this occurred. That morning, to allow you to do so, police drove you back to the Lake Buffalo area. However before the police got you there, at about 12:55pm the body of Ms Chetcuti was located by searchers 35 kilometres from Myrtleford in an area called Dandongadale. Having seen the photographs taken at the crime scene I can only say that must have been a horrifying discovery for those searchers particularly given the state of her body.
Police did not tell you Ms Chetcuti’s body had been found. Nonetheless, you did direct police to the exact location of where she had met her death at your hands. At that scene you gave a description of what you claimed occurred. In all likelihood it was an accurate account of what happened except that it was you, not Eddie George, who was doing the criminal acts. At the scene you said you and Eddie George removed Ms Chetcuti from the car, removed her clothing and gagged her mouth. You claimed that Eddie George doused her with petrol and injected battery acid into her arm and ignited the petrol. She could be heard screaming through the gag. You claimed he then reversed over her with the car and then pushed her off to the side. Her discarded clothing was located in the blackberries, and that can be seen in the crime scene photographs.
A post-mortem was conducted on the remains of Ms Chetcuti on the following day, 19 January 2016. The result of that examination showed what a violent attack you had launched against this woman. It revealed that she had been given methylamphetamine and Xylazine, which is a very strong veterinary sedative. The immediate cause of death was described as burning and the effects of fire coupled with blunt force trauma to the head and torso. I assume the purpose of you administering methylamphetamine was to make her appear to be a drug user, though she was nothing of the kind.
Reciting this description demonstrates that the case against you on the charge of murder was almost overwhelming. You were charged with murder on 19 January 2016.
As the prosecution have argued, the murder of Ms Chetcuti has a number of aggravating features. You told your fellow prisoner BC that you had been watching her for some time. From the time you first attacked her until her death, in her conscious moments, she must have been terrified. The method by which you killed her, as I have already described, was grossly violent with her apparently dying of fire whilst alive. In addition, you viciously attacked her with heavy blows to the head and body. After she had died you drove a vehicle over her body. You then dumped her body and clothing.
Once the murder of Karen Chetcuti had been committed you engaged in an elaborate concealment of what you had done designed to divert the police investigation away from you. These measures included the various lies you told to police and others over a number of days together with your later efforts to arrange for the killing of Eddie George. Your conduct after murdering Karen Chetcuti demonstrates a complete lack of regret or remorse for what you had done. It is now claimed that you are remorseful for this crime. Based in part on your conduct to this point, I find that very difficult to accept.
The impact of this crime
It is obvious that your crimes have had a dramatic impact on the family of Ms Chetcuti, her friends and colleagues and, in all likelihood, the wider Wangaratta district generally. There has been significant concern about what you have done because, apart from the sheer violence of your actions, it was so futile and inexplicable.
At the hearing of your plea I was provided with thirteen victim impact statements. These are from various members of Ms Chetcuti’s family and her friends. These statements are the documents that remind not only the Court but the rest of the community of the long term consequences of crimes like yours. Many of these people struggle with knowing what you did and the detail of it. They believed that living in a rural area was not only enjoyable but also a safe environment. That belief has been shaken. Ms Chetcuti’s children are particularly vulnerable to the horror of it and will carry it with them for the rest of their lives. These impacts may diminish with time but they will never resolve.
I have taken these statements into account in determining the sentence that should be imposed on you.
Incitement to murder and attempt to pervert the course of justice
I next turn to the second charge you have pleaded guilty to – the charge of inciting murder.
After your arrest you were charged with the murder of Karen Chetcuti on 19 January 2016. You were held in custody at the Metropolitan Remand Centre. You were aware that Eddie George had made a statement to police about his assistance to you in destroying Karen Chetcuti’s car. In September 2016, you became friendly with another prisoner at the Melbourne Remand Centre, BC, and you began to discuss your circumstances, and this case, with him.
In conversations with BC, you originally told him that the killer of Karen Chetcuti was Eddie George and that you were simply present when it happened. Ultimately, however, you told him that you had murdered Karen Chetcuti and that you had had a sexual interest in her. You gave quite a detailed account to BC what you did and why you did it. You also told BC that Eddie George’s only involvement in this matter was when you and he incinerated Ms Chetcuti’s motor vehicle. You knew that George had spoken to police and that he would be a prosecution witness. Later in your discussions with BC you told him that Eddie George was ‘a big problem’[4] and that you needed to get rid of him. You asked BC whether he knew anyone who could, for payment, murder George so that you could avoid the consequences of what you had done. Without his evidence you obviously saw a chance for acquittal.
[4]Additional evidence at page 455.
To his credit, BC passed on that information to police. The result was that you were later provided by him with a name and phone number for a man who would kill George for you for a price. The man was in fact a covert police operative. You came to know him as Matty Thompson. He had several conversations with you including visiting you in custody on 6 March 2017. The arrangement you reached was that Eddie George was to be murdered by Thompson and that his death was to be made to look like a drug overdose suicide. George was to be forced to write suicide letters confessing to the killing of Ms Chetcuti. You provided details of where George could be found. You also gave an account of what you said he did to Ms Chetcuti, once more falsely suggesting that he had killed her.
You promised to pay Thompson $25,000 for the killing of George and, given that you were in custody, that money was to be handed to Thompson in two halves by your mother Maria Cardamone. You confirmed on a number of occasions that you did want the job done, and on 23 March 2017 a package containing $9,000 was handed by your mother to another covert police operative. Your mother has been charged in relation to her role in this incident.
On 29 March 2017 you were informed that George had been murdered and, under the arrangement, Thompson was to supply you with a photograph of George deceased. You told him to show it to your mother. Police then intervened. You were charged with this offence, as was your mother. She is in custody and is to be dealt with on 28 August 2017 in the County Court.
This offence of inciting murder, on its own, is a very serious offence reflected by the maximum penalty of life imprisonment. Your conduct in this case was not only aimed at the murder of another person but was intended to gain a benefit for yourself by striking at the very process of criminal justice on which the community depends.
Your conduct over the entire period commencing on 12 January 2016 and concluding with your plea of guilty on 30 June 2017 was extraordinary and, in my opinion, devoid of any regret or remorse.
Serious Offender Provisions
You fall to be sentenced as a serious violent offender on both the charge of murder and the charge of incitement to murder. In determining your sentence I must regard the protection of the community from you as a principal purpose for which the sentence is imposed.[5] It would also be open to me to impose a sentence disproportionate to the gravity of the offence, but given the objective gravity of this offence could hardly be higher, this becomes irrelevant.
[5]Sentencing Act 1991 – s 6D.
Personal Circumstances
You were born on 19 April 1967, the son of Italian immigrants. You are therefore now 50 years of age. You have a sister who is four years younger than you. You were apparently raised in Wangaratta on your family’s tobacco farm. Your education completed at year 12 level. Your family had two farming properties and on your father’s death you took them over.
Your father died three years ago and, obviously, your mother is still alive though she is presently in custody charged in relation to the plan to kill Eddie George.
You apparently suffer from some condition in relation to your circulation and you have been on anticoagulant medication for some 15 years.
Socially your life has been difficult and that has led you to drugs which began in your teenage years. You used amphetamines and methylamphetamine in significant quantities.
Your prior convictions began when you were 18 years with a conviction for unlawful assault in the Myrtleford Magistrates’ Court, for which you were placed on an adjourned bond. Three years later you committed the same offence again with almost the same result.
In 1991, you were convicted of offences of theft in various forms in Wangaratta and in Melbourne with non-custodial sentences being imposed. By 2003, it was drugs with trafficking and use of amphetamine and further offences for dishonesty. Again the sentences imposed on you were non-custodial.
However on 1 December 2006 in the Wangaratta County Court, you were found guilty of threats to inflict serious injury and to kill, sexual penetration, committing an indecent act with a child under 16 and rape. The total effective sentence was 10 years and three months with a non-parole period of seven years. On appeal, that sentence was reduced to nine years with a non-parole period of six years.[6] The orders of the County Court that you be sentenced as a serious sexual offender and be registered as such for life remain in force.
[6]The Queen v Cardamone [2007] VSCA 77.
Those offences were committed against a 15-year-old girl who lived with her boyfriend in a caravan while he worked on a tobacco farm. You committed these offences whilst holding a large wrench to threaten her and, as you gave directions for her to undress you, threatened that you would kill her if she did not comply with your demands. You then raped her digitally several times and forced her to perform oral sex on you. When the incident was over you told this young girl that if she told anyone, or if her boyfriend noticed anything, you would kill her and have her family killed. You said no-one would believe her and threatened to kill her if she told anyone. In police interviews you gave explanations for the various factual aspects of the prosecution case that implicated you and overall denied that the incident the young girl has described had happened.
For the first time during cross-examination by your counsel of the complainant during the trial, it was effectively put to her that she had solicited sexual contact with you so that you could be blackmailed for money. You did not give evidence during your trial.
After the expiration of your non-parole period your release on parole was ordered by the Adult Parole Board on 1 November 2012. On 20 May 2013, your parole was cancelled but you were released again on 17 March 2014. On 9 February 2015, your parole was again cancelled when certain charges were laid against you. However, those charges were later dismissed and your release was again ordered on 14 July 2015. On 21 September 2015, the conditions of your parole were varied by the addition of new conditions. At the time of your arrest for these matters there were 274 days owing on your parole period.
After you were charged with murder on 19 January 2016, you were remanded in custody and later moved from Port Phillip prison to the Metropolitan Remand Centre. Two months after your transfer you were charged with a prison offence concerning a positive urine screen for methylamphetamine. Various other incidents have occurred which do not really bear on the issues before me. You are now in the Exford Management Unit at the Metropolitan Remand Centre.
Mental state, remorse and prospects for rehabilitation
A written report provided by the psychiatrist Dr Lester Walton to your solicitors indicates that he assessed you on 17 July 2017. Dr Walton was confronted with your unwillingness to explain why you killed Ms Chetcuti or to discuss what you did in any detail.
Dr Walton’s report indicates that you have no mental health problems of any consequence and there was no psychiatric or psychological condition that played any part in your offending. You are not psychotic. You have a history of polysubstance abuse, more recently heroin and methylamphetamine. Similar observations were made in 2006. Clearly you had no insight into your offending then or now and need to deal with your drug issues. I acknowledge that the mixed anxiety/depressive disorder from which you now suffer will make your sentence more onerous.
Your counsel relied on Dr Walton’s report to support his submission that you are remorseful. Dr Walton did not give evidence on the hearing of the plea. He describes what you told him about feeling ‘bad’ for what you did and for the families. He observed that you became tearful. He asserts that you ‘express[ed] sorrow, including empathy for the victim’s family, delivered with accompanying tearfulness’. Dr Walton’s report is one primarily of his observations of you. He offers no opinion about the genuineness of the reactions from you that he saw. I am not persuaded that you are genuinely remorseful although I do not doubt you regret the situation you now find yourself in.
I will refer again to the submission concerning your prospects of rehabilitation. Mr Tehan relied on your plea of guilty, your life history and your apparently settled situation in custody to support the conclusion that you had positive prospects for rehabilitation. However there is nothing to indicate that there has been any significant change in your attitudes to women, particularly, or that you have any real insight into your offending. I regard your prospects of rehabilitation as virtually non-existent on the material before me.
Plea of guilty
Mr Tehan, on your behalf, placed heavy reliance on your plea of guilty and acceptance of responsibility. As I have already noted, your plea was entered on 30 June 2017 more than 17 months after you had murdered Karen Chetcuti. Your trial had been due to commence in Wangaratta on 31 July 2017 and was estimated to have taken about six weeks.
Your plea of guilty could not be described as an early plea and your counsel ultimately accepted that. It came after the arrest of your mother in relation to the plan to murder Eddie George. Up until your plea of guilty you did what you could to avoid the consequences of what you had done by lying to police and by going to somewhat elaborate measures to support explanations for your contact with Ms Chetcuti. On 8 March 2017, a contested committal was conducted in Wangaratta and you were planning to conduct a trial on the basis that although you were present at the death of the deceased, you were not the person who caused her death. While this was going on you were endeavouring to arrange for the murder of Eddie George. Ultimately your plea was made in the face of a very strong prosecution case.
However I do accept, as your counsel pressed, the utilitarian value of your plea of guilty. It avoided the need for a trial that was estimated to take as much as six weeks, with the associated trauma and upset for the family and friends of the deceased. Your plea also reflects your acceptance of responsibility for what you have done. Your counsel has argued that your plea of guilty was a strong reason for me to fix a non-parole period if I were to sentence you to life imprisonment. In the written submissions, the Chief Crown Prosecutor submitted that you are entitled to a sentencing discount for the utilitarian value of your plea.
Consideration and conclusion
In his submissions your counsel appeared to accept that a sentence of life imprisonment was open to be imposed in this case though he pressed for a determinate head sentence. In the event that life imprisonment was imposed he submitted there were five reasons why a non-parole period should be fixed. First, in Victoria there are only two cases where that has not happened after a plea of guilty to murder and in both of those cases the accused had prior convictions for murder.[7] Second, he relied on your plea of guilty and the submission that you are remorseful. I have already dealt with those matters. Next, he relied on your contribution to the location of Ms Chetcuti’s body but this, as it turns out, does not appear to be a valid claim. You did take the police to the location where the deceased woman was murdered and left by you. At this stage you were still claiming that Eddie George had murdered her. However by then the police had already found her body. Your counsel submitted that your conduct in taking police to the scene showed your desire to facilitate the course of justice to some extent. I reject that submission. Your conduct up to your plea of guilty showed no sign of any conscious desire on your part to facilitate the course of justice – rather the opposite.
[7]See Hunter [2013] VSCA 385 and Coombes [2011] VSC 407.
Mr Tehan then relied upon your age noting that you would obviously spend most of the rest of your life in custody.
Finally, he relied on your prospects of rehabilitation based on your acceptance of responsibility.
Given the nature and circumstances of the offence of murder, I have no hesitation in concluding that the total effective sentence I should impose on you is a sentence of life imprisonment. Protection of the community, denunciation and general deterrence are very significant sentencing factors.
On the charge of murder you are therefore sentenced to life imprisonment. On the second charge of incitement to murder you are sentenced to eight years’ imprisonment. On the summary charge of breaching your parole you are sentenced to the maximum penalty of three months’ imprisonment.
Minimum term
The issue that then arises for more difficult consideration is whether I should fix a minimum term to be served after which you would be eligible to apply for release on parole. As I have said previously, to refuse to fix a minimum term is an exceptional step and is a dreadful punishment; but this was a dreadful crime. It is true, as Mr Tehan put to me, that civilisation is judged by how we treat people like you and very often mercy is appropriate. However sometimes a crime is so horrific, so cruel and so callous that a step toward mercy becomes too difficult to take.
The fixing of a non-parole period is governed by s 11(1) of the Sentencing Act 1991, which provides:
(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate
In Victoria, as I have mentioned, the only sentences for murder where a minimum term was not fixed after a plea of guilty have been in cases where the accused had one or more prior convictions for murder.[8] Obviously you do not fall into that category of offender. This however is not the case in NSW. In that state, there have been a number of cases in which offenders have been sentenced to life without parole for murder following a plea of guilty and in the absence of prior convictions for that offence.[9] Indeed, in Standford and Knight neither offender had any prior convictions at all.
[8]See R v Hunter [2013] VSCA 385; R v Coombes [2011] VSC 407. In relatively similar cases where pleas of guilty were entered, non-parole periods were fixed – see R v Bayley [2013] VSC 295 and R v Dinsley [2013] VSC 631.
[9]R v Vincent Stanford [2016[ NSWSC 1434; Knight v R [2006] NSWCCA 292; R v Richard Williams Leonard NSWCCA 7 (Unreported) 7 Dec 1998; R v Mathew James Harris (2000) 121 A Crim R 342.
Returning to Victoria, in Coulston,[10] the Court of Appeal, I acknowledge speaking in the context of three verdicts of guilty for murder and other offences after a trial, said:
Sentencing judges must remain fully conscious of what has been said in decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non-parole period. They will remain well aware that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. It is a dreadful sentence, at all events for an offender who is not of advanced age. But dreadful crimes, especially where the past history is bad, may require a dreadful punishment.
[10][1997] 2 VR 446.
As I noted above, Mr Silbert submitted that the utilitarian benefit of the plea entitled you to a sentencing discount. That was a matter that your counsel heavily relied upon during argument. I am not, however, bound by the prosecutor’s submission to the extent that it suggests that a non-parole period should be imposed. That the benefit must be given weight in the sentencing exercise does not necessarily lead to that conclusion.
As to whether your plea of guilty with its utilitarian benefits should result in a minimum term being fixed ultimately depends on my assessment of whether or not this case is in an exceptional category because of the gravity of your offending. I do consider your conduct to be of such an order that the fixing of a non-parole period is not appropriate.
The value of your plea may simply be personal to you that for once you have done the right thing. As the majority in the Court of Appeal noted in Hunter:
It may be accepted that, but for the plea of guilty, the applicant would have had no prospect at all of having a non-parole period fixed. Certainly, in a case as grave as this, the entry of a plea of guilty was a necessary condition of the fixing of a non-parole period. But it is not correct, in our view, to view it as also being a sufficient condition. As the sentencing judge correctly pointed out, this Court has recently reaffirmed that some cases are of such gravity that the maximum sentence remains appropriate notwithstanding the entry of a plea of guilty.[11]
[11]Phillips v The Queen (2012) 222 A Crim R 149, 167–8 [67].
I have reached the conclusion that I should not fix a minimum term for the following reasons:
1.Your offending was thoroughly unprovoked, extraordinarily violent and horrifyingly callous with a variety of means being employed to create terror and suffering in the deceased woman before her extremely painful death. Ms Chetcuti must have gone through an extended period of suffering before her death and, in all likelihood, spent the hours she was conscious expecting to be murdered. Every conscious choice you made between the hours of 9:00pm on 12 January and about 6:00am on 13 January 2016 was at the very high end of criminal culpability.
2.Your conduct in the days after the offence, in which you began an elaborate attempt to escape responsibility by a variety of lies to police, demonstrated a complete absence of any form of regret or remorse for what you had done and complete disdain for the family and friends of the woman you murdered.
3.Your attempt to arrange for the murder of the witness Eddie George not only gives an insight into your lack of regret or remorse for the murder of Ms Chetcuti but is a crime which warrants significant punishment as an offence not only toward an individual but threatening the system of criminal justice. This offending is a particular distinguishing feature of this case.
4.Your plea of guilty was not an early plea and does not demonstrate your remorse. Whether it was to assist your mother I am not able to say. Its primary quality is its utilitarian value. I have weighed that value in arriving at your ultimate sentence together with all the other relevant factors, but that does not mean that the only reasonable conclusion is that a minimum term before eligibility for release on parole must be fixed.
5.Your more recent prior convictions from 2006 are very serious, most particularly those of rape and threats of violence toward a 15 year old girl who was your sexual victim. That they do not include a prior conviction for murder serves as a point of difference where the Court has declined to fix a non-parole period in other cases but, as noted above, there are additional features of this case which must also be considered. Your reform or rehabilitation following those offences has been non-existent. You have demonstrated complete contempt for the rules and processes that sought to bring your sexual offending under control. At the time of these offences you were on parole. You were on the sexual offenders register. You knew that your offending was linked to your drug use and that you needed treatment for that and yet you continued to use drugs and failed to take any genuine steps toward treatment.
6.In my opinion there is no evidence to indicate any significant prospect of rehabilitation on your part.
7.You are fifty years of age, and that is relevant in determining whether it is inappropriate to fix a non-parole period for you if sentenced to life imprisonment for murder.[12] You are not by any means a youthful offender.
[12] Lowe [1997] 2 VR 465.
In many cases, and even putting aside dismal prospects of rehabilitation, it is ‘pragmatic and utilitarian’[13] to discount a sentence for a plea of guilty so as to encourage others to do likewise. The question is whether that is a sufficient reason to counter the factors above which strongly indicate that the fixing of a non-parole period is not appropriate. In my opinion it is not in this case. That does not mean that the utilitarian benefit of your plea of guilty has been given no value. Rather, it means that when that value is weighed with all the other relevant and countervailing considerations was insufficient to result in a lesser sentence.
[13]Per King J in R v Williams [2007] VSC 131.
Therefore, as I have already indicated the sentence of the Court is that on charge 1, the murder of Karen Chetcuti, you are sentenced to be imprisoned for life. On charge 2, the charge of incitement to murder Eddie George, you are sentenced to be imprisoned for eight years. On the summary charge of breaching your parole, you are sentenced to the maximum penalty of three months’ imprisonment.
There is obviously no utility in making orders for cumulation because the total effective sentence is life imprisonment.
I decline to set a minimum period.
Section 6AAA of the Sentencing Act 1991 (Vic) has no application in this case.
I record pursuant to s 6F of the Sentencing Act that on the charges of murder and incitement to murder you are sentenced as a serious violent offender.
Pursuant to s 78(1) of the Confiscation Act 1997, I order the disposal of certain property sought by the Crown and not opposed on your behalf.
Finally, pursuant to s 18 of the Sentencing Act 1991, I declare the number of days of pre-sentence detention to be reckoned as time already served as 313 days, including this day, and I direct those details be entered in the records of the Court.
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