R v Guingab
[2011] VSC 110
•1 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
| THE QUEEN | |
| V | |
| .DANILO GUINGAB | Accused |
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JUDGE: | T. FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 19,20.21,22,23,26,27,28,30 July,2010 | |
DATE OF SENTENCE: | 1 April 2011 | |
CASE MAY BE CITED AS: | R v. Guingab | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 110 | |
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CRIMINAL LAW – Murder – Sentence – Plea not guilty – No apparent motive – Incarceration more burdensome than usual – 17 years 6 months with minimum of 13 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC Ms D Piekusis Mr M Rochford SC Mr A Tinney SC | Director of Public Prosecutions |
| For the Accused | Mr P Chadwick SC and Ms S. McCrickard | Victoria Legal Aid |
HIS HONOUR:
On 12 December 2007 the body of Luvina Dayang was found wrapped in black plastic bags in the front yard area of 35 View Road, Springvale.
You have been found guilty of murdering Ms Dayang on or about 11 December 2007.
Ms Dayang was approximately 50 years old, the mother of four adult children, and a resident ordinarily of the Philippines.
In July 2006 she came to Australia as a tourist on a three month visa. She overstayed her visa and commenced working at various casual occupations, usually as a cleaner, or caring for children. A good deal of the money she earned would be sent back to the Philippines where her family lived in reduced circumstances.
She remained in Australia up until her death. She spent most of her time in Sydney but also came to Melbourne on occasions.
On one of those occasions she met you and occasionally thereafter she would stay at your house at 940 Heatherton Road, Springvale.
You lived at that address with your wife and children, although it appears from the evidence that you were effectively estranged from your wife as a result of you maintaining a homosexual relationship. Both you and your wife are former residents of the Philippines and you were hoping to sponsor your friend Mr Magno in his efforts to migrate to Australia.
Ms Dayang had a limited circle of friends in Australia and particularly Melbourne. Violeta Tolentino was one. Although a resident of Melbourne, in 2007 she would sometimes accompany Ms Dayang when they would stay at your house.
On Saturday, 8 December, you sent Ms Dayang a text message. She was in Sydney when she received it. You suggested to her that she come to Melbourne as there may be a job available as a carer. She arrived in Melbourne on the morning of 10 December and met her friend, Violeta, at the South Yarra railway station.
The two women went for coffee together. Violeta lent Ms Dayang $50 and Ms Dayang proceeded on to your house. She arrived some time after 10 a.m. Both you and your wife were home at that stage although your wife left shortly thereafter.
Ms Dayang stayed at your house for most of that day but visited another friend Ivy Rivera in the afternoon. She stayed overnight at your house and remained there during the day of 11 December. So much can be ascertained from phone conversations the deceased had with Ivy Rivera in the morning and her daughter Yayo at about 2.30 p.m.
In that conversation it was apparent to Yayo that her mother was still at your house and that her mother believed that you were about to take her to see about the job that afternoon. Your wife was at work at the time.
When interviewed by police you told them that Ms Dayang received a phone call at about 3 p.m. and departed your house hurriedly, saying she needed to go back to Sydney.
Leaving aside various text messages which purported to have been sent by Ms Dayang, she was not heard from or seen alive by anyone else after the 2.30 p.m. phone call.
35 View Street where her body was located is about four to five hundred metres from your house in Heatherton Road.
At about 3.30 to 3:35 p.m. on 11 December you collected your children from school. Throughout that afternoon and evening there was considerable relevant mobile telephone traffic. At about 4:42 p.m. a text message was sent from the deceased's telephone to your wife. It read, “I'm going back to Sydney, thank you. Danny said bring cigarettes and $29 Vodafone prepaid”. Your wife tried to call Ms Dayang but she was not answering her phone.
It was the Crown case that by 4:42 p.m. you had murdered Ms Dayang and were sending texts from her phone in an effort to deflect suspicion.
A similar message was sent to Yayo from Ms Dayang's phone.
Another message was sent from that phone later that night, ostensibly from the deceased, and claiming that she had been caught by the Immigration police, that she needed 50,000 for the penalty and that the money should be sent to Danny. It is probable that the currency for this figure was Filipino pesos. 50,000 is about $1,500 Australian.
The next day Yayo spoke to you on the phone about this message and you said you did not want anything to do with the money or the Immigration police.
The discovery of the body was broadcast on television news and you told some of her circle of friends that you thought that the clothes depicted were Ms Dayang's. You told your wife you would call the police. In fact, you sent a text message from a public telephone to a Sheriff's officer saying the body belonged to Ludi, she was an illegal immigrant and that she lived in Sydney. You had had past dealings with that Sheriff's officer and his card was found by the police at your home.
The deceased had sustained injuries consistent with blunt trauma to the top of her head and bruises to her face, neck, torso, arms and legs. However, her death was caused by neck compression. She was strangled to death.
Bags of the type used to wrap the deceased were found at your house. Rope of the type used to bind the deceased was observed by your wife at your house, although not present when police searched your home some days later.
Your DNA, or DNA that was overwhelmingly similar to it, was found on a thong near the deceased's body. The verdict of the jury means that you killed Luvina Dayang and at the time you did so you intended to cause either her death or really serious injury.
What remains unclear is why you did so. On one view the text message requiring 50,000 to be sent to Danny may appear to supply a motive but I am not satisfied beyond reasonable doubt about this. Another explanation is that that text message was opportunistic and after the fact. Another explanation is that this message was part of a very inept attempt to deflect suspicion given your response the next day that you wanted nothing to do with the Immigration police.
I have considered the findings of Dr White, the pathologist. I am satisfied that your intention was to kill Ms Dayang. There was an abrasion consistent with a ligature mark on the anterior, that is, the front, aspect of the neck, petechial haemorrhaging was observed, purple bruising was observed below the ligature mark and congestion of the face was observed above the ligature mark but not below it. Both left and right thyroid cornu were fractured with soft tissue haemorrhage at the fracture sites. I consider the only reasonable interpretation of these injuries is that you intended to and did strangle Ms Dayang to death.
I consider your actions in killing Ms Dayang were probably spontaneous. I conclude this by your amateurish attempts to deflect suspicion and from the fact that the incident occurred in your home at a time when you had no means of transporting the body to a distant location.
There is nothing in your past life that suggests you have a predisposition to this type of conduct. You are now 46 years old and at the time of your arrest you were separated from your wife although, as I have observed, still living under the same roof. You have four children aged 12, twins who are 10, and the youngest aged 9. I accept that you are devoted to your children.
Your married life has been compromised by your homosexuality and in recent times you have conducted a relationship with your wife's relative Caloy Magno.
Your family migrated to Australia from the Philippines when you were about 20 which disrupted your medical technology studies. You did not resume those studies and worked firstly in Australia in the linen department of Royal Melbourne Hospital for about 5 years and, after a holiday back in the Philippines, at Toyota as a quality controller, again for about 5 years.
In the late 1990s you completed nursing studies at RMIT and then worked at Southern Health as a psychiatric nurse from 2000 until your arrest.
It appears from the evidence that you met the deceased in 2007 during her time in Melbourne and she stayed at your house on several occasions thereafter.
I am unable to make any precise assessment of your criminal culpability beyond that which the verdict demonstrates. In particular, I am unable to assess the motive for your conduct and the interaction between you and Ms Dayang in the immediate lead up to her death. As I have stated, I consider that you intended to kill Ms Dayang and that your intention to do so arose spontaneously. You maintain your innocence, which of course is your right.
You have remained in custody since your arrest and have been imprisoned at Port Phillip Prison since December 2008. In February 2010 you were sharing a cell with another man. You have made a complaint to police that over the course of some days this man assaulted you, and performed various sexual acts upon you, which involved non‑consensual anal penetration with an implement and ultimately his penis. That statement has been tendered on your behalf.
The prosecution did not dispute your account on the plea. I am told that charges have been authorised by the police and the matter is now with the Office of Public Prosecutions, although charges have not yet been laid.
There is a real practical implication in this for sentencing purposes. Where factors conspire to make a sentence more onerous than otherwise it would be, and those factors are not the fault of a prisoner, a sentencing court may take this into account when determining an appropriate sentence.
In this case I consider that your sentence has been and will be significantly more onerous than otherwise it would be for the following reasons.
I am satisfied on balance that the rapes occurred in the circumstances that you described. I have been supplied with hospital records which indicate that in addition to suffering some physical injuries you were hospitalised for a period of time having been regarded as a suicide risk. You were placed under close observation and reported constantly "experiencing flash‑backs and ruminating thoughts". A consulting psychologist, Carla Lechner, was engaged by your solicitors. You reported to her feeling anxious and hyper-vigilant as a result of either the rapes themselves or of the consequences of reporting them. I quote from her report.
He reported the incident and police are investigating, this causing other prisoners to get upset. He has not revealed his sexual orientation but remains fearful for his safety. He is currently in a cell with one other prisoner and this makes him feel safer. He is anxious and hyper-vigilant much of the time.
I consider that your pre‑sentence detention has been considerably more burdensome because of this incident. Prison life for a gay prisoner who has made an allegation of rape to police about another prisoner is likely to be a good deal more onerous than would otherwise be the case. I consider that you are at a greater risk of harm than most other prisoners.
I am also satisfied that you will be required to serve a significant proportion of the sentence I impose in protective custody. Shortly after you made the rape allegations you were transferred to Alex South protection unit. You have been transferred to Sirius unit which is also a protection unit. Brendan Money, Acting Assistant Commissioner of Offender Management Services, has helpfully provided an affidavit which sets out the effect of protection status and his opinion as to its likely duration. You will be able to access programs and services at a generally equitable level to mainstream prisoners. As a protection prisoner you will mix with fewer prisoners. Work is generally available. Out of cell hours depend on the type of prison in which you are accommodated but at Port Phillip, your current location, they are the same as mainstream prisoners.
It is difficult to discern any great disadvantage that will be suffered by you as a protection prisoner other than that your peer circle will be smaller. It is to be hoped that by serving your time in protection that the risk I have referred to attaching to your incarceration is ameliorated.
However, I consider that that risk will endure to some degree throughout your time in custody.
The fact of that risk, regardless of whether it materializes, is itself a factor that will make your sentence more onerous. I have moderated both the head sentence and the minimum term that I will impose to reflect the fact of the rape and the consequences that I have identified.
More generally Ms Lechner reported, and I accept, that you present with symptoms of adjustment disorder and disturbance of mood, reactive to your situation. You have been prescribed antidepressants while in custody. You are particularly distressed at the dislocation in your relationship with your children to whom you are devoted. You have little or no control over when you see them. In the three years that you have been incarcerated you have seen them about once every three months. You will not see them as a free man until they are adults.
I do not consider that your absence constitutes an exceptional hardship to your family but I do accept that the impact upon you of potentially being denied any meaningful access to your children as they grow up constitutes an additional burden to you arising from your imprisonment and I take this into account.
It is now a considerable time since your arrest. A good deal of the delay is attributable to interruptions to the trial process. You were originally presented for trial before Coghlan J in September 2009. That trial was aborted through no fault of yours or your practitioners. You were then presented for trial in May 2010 and after an interlocutory appeal the trial commenced in July. You were convicted on 17 August 2010. Your plea was interrupted by your solicitor seeking, quite properly, to investigate the rape allegations and assemble material relating to them.
The upshot of all this is that there has been a delay of three and a quarter years from arrest to sentence. Delay is relevant to a prisoner’s prospects for rehabilitation. If the time has been used well the prisoner is entitled to point to what he has achieved in that time and ask that rehabilitation assume greater weight in the sentencing mix. If the prisoner has not used the delay period well he will not be able to succeed in that submission.
In this case you have been incarcerated since arrest and any opportunity to demonstrate that rehabilitation is under way has been inhibited.
Notwithstanding this, I accept that your conduct whilst on remand has been exemplary. I take this into account when considering your prospects of rehabilitation.
There is also a fairness aspect to delay. You have had the resolution of this matter delayed considerably. To use the words of Street CJ in R v. Todd, you have been left in uncertain suspense as to your fate. I accept this is a factor that ought to act to moderate the appropriate sentence.
I assess your prospects for rehabilitation as very good. You have little prior history of violence, no relevant prior convictions, a good work history and, as I have said, you have occupied yourself usefully on remand. It seems that you are intelligent and industrious. You will be significantly older when released from prison and I accept will probably not re‑offend.
A victim impact statement has been filed by Sherilyn De Jesus, the daughter of Ms Dayang. Ms De Jesus was a witness in the trial and her distress then was apparent. In her victim impact statement she describes her closeness to her mother and how her mother would work in varying parts of the world in order to send money home to her family who, as I have stated, were living in reduced circumstances. The family of Luvina Dayang is grieving for her and is also suffering financially by her loss.
I must give significant weight to aspects of general deterrence, denunciation and punishment. There is no more serious crime known to our law than murder. Those who commit it must understand that long terms of imprisonment will inevitably follow. The community expects people in your position, Mr Guingab, to denounced and punished. Part of this sentence is designed to reflect those considerations.
Please stand, Mr Guingab.
On the charge of murder I sentence you to 17 years six months' imprisonment with a minimum of 13 years six months before you are eligible for parole.
I declare 1153 days of your sentence has been served by way of pre‑sentence detention including today.
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CERTIFICATE
I certify that this and the 8 preceding pages are a true copy of the reasons for Sentence of T Forrest J of the Supreme Court of Victoria delivered on 1 April 2011.
DATED this first day of April 2011.
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