R v Hentschel
[2005] VSC 6
•19 January 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BALLARAT
CRIMINAL DIVISION
No. 1478 of 2004
| THE QUEEN |
| v |
| THOMAS HENTSCHEL |
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JUDGE: | Teague J | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 19 January 2005 | |
DATE OF SENTENCE: | 19 January 2005 | |
CASE MAY BE CITED AS: | R v Thomas Hentschel | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 6 | |
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Criminal Law – Sentence – Murder – Driver for gunman in execution shooting – Plea of guilty – Substantial past assistance to Police – Undertakings to give substantial future assistance – Major discounts warranted – Head Sentence 18 years – Non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Coghlan Q.C., D.P.P. with Mr G. Horgan S.C. | Office of Public Prosecutions |
| For the Accused | Mr S. Langslow | Leanne Warren & Associates |
HIS HONOUR:
Thomas Hentschel. You have pleaded guilty to the murder of Michael Marshall. For that murder, I propose to sentence you to imprisonment for eighteen years, and then to set a non-parole period of ten years. But for the combination of your past co-operation, and your promises of future co-operation, taken with other mitigating factors, I would have considered setting an effective term of upwards of twenty five years and a non-parole period upwards of twenty years. Your plea of guilty and your past co-operation and linked factors warrant substantial reductions, on the head sentence and on the non-parole period. Your promises as to the future additionally warrant substantial reductions.
Before I come to the killing of Michael Marshall, I will make several preliminary points. I have accepted that there are exceptional reasons for my having today moved with expedition in sentencing you, and for my ordering special security measures. The court is closed. A limited suppression order is in place. My sentencing remarks are more opaque than I would have preferred to be the case. Special measures were also warranted because trials are likely to take place soon at which you are likely to be called as a witness. Within weeks, it is expected that you will be called on to give evidence at a committal hearing. The information that you have provided has put you into the highest category of risk. Your past co-operation and promises of future co-operation make you very vulnerable. Your security, in the short and long term, is a matter of extreme importance.
Even as to the terms of what I am now saying, organs of the media must be very careful of the laws as to contempt. Special care must be taken not to publish material, including as to this sentence, and from this sentence, that would have a real tendency to prejudice upcoming trials.
My last preliminary comment is that I will add to these reasons as Appendix A, a list of many of the past cases that I have taken into account, and as Appendix B, details of the undertaking you have given as to future co-operation. I am required to cause them to be noted in the records of the court.
I turn back to the circumstances of the killing of Michael Marshall. On 25 October 2003, Michael Marshall was shot dead outside his home. He was shot in the presence of his five year old son. The presence of the son was not a matter that you could have foreseen. When that shooting occurred, you were close by. You had driven the gunman to the scene. You drove the gunman away from the scene. You had assisted in other ways to prepare for the victim being dealt with in some way on that day.
You were approached about three weeks before 25 October 2003. Thereafter, there were further conversations and meetings. You say, and there is support for what you say, that the meetings were with two other men. Often in a coded way, you were given information. The information included: the name of the victim; his home address; his business; his cars; and, that surveillance had been carried out on him. Your initial role was to provide, but not to drive, a car that could not be traced. You had a contact who was in a position to organise such a car. The plan for you only to provide a car was later varied. It was accepted that you would be the driver, using your own car. You checked out the victim’s residence and surrounds. You organised gloves and a wig. There was talk about a collection of a debt owed by the victim and not of murder. Michael Marshall was a business man, with more than one business. Trafficking in illegal drugs was one such business. It is not clear what motive there was for him to be the subject of attention by the other two men. Before 25 October 2003, it was not apparent to you what attention he was to receive.
On that day, a Saturday, you were called by telephone and asked to pick up the gunman from near the Casino. When you picked him up, he had with him a big bag. He produced from the bag, two guns. You drove him to South Yarra. There, the two of you waited. When the victim was seen to approach, you drove to a point close to the victim. The gunman got out and you drove off. You heard the sound of gun shots. You drove into a nearby street, where the gunman rejoined you, and you drove off. You were present when the gunman reported to the third man, by telephone and in code, the success of the venture.
As to the facts of what occurred, I have your version. As to some matters I must allow for your spin, that is, the presentation of some matters in a way calculated to provide a more favourable impression of your role. The accuracy of some aspects of what you have said may later be challenged. Defence counsel have their ways of dealing with spin, as you will have further occasion to learn. As to many significant matters, your account is supported by information obtained from other sources. The combination does bear the indicia of reliability.
Some time after you were charged with the murder of Michael Marshall, you contacted the police about providing information. In the ensuing months, you have worked on the preparation of three jurated statements. One was as to the murder of Michael Marshall. Another was as to the murder at Essendon on 15 June 2000 of Mark Moran. The third was as to the murder at Pascoe Vale on 21 June 2003 of Jason Moran and Pasquale Barbaro. At an early stage, you indicated your preparedness to plead guilty to the murder of Michael Marshall.
I interpolate that each of the two statements as to your involvement in the murders of Mark Moran, Jason Moran and Pasquale Barbaro specifies that it was provided on the basis that it could not be used in evidence against you. I must and will respect that. You cannot and will not have those statements used as a basis for a harsher sentence. The statements are to be used as factors warranting mitigation, not aggravation. That is in line with the principles referred to in the cases mentioned at the plea.
The courts have often spelt out why a sentencing discount is appropriate for past co-operation, for a plea of guilty, for promises of future co-operation. Put shortly, it is in the interests of the community to encourage all kinds of such co-operation. Where the co-operation is of considerable value, the discount warranted can be the greater. Before me, I had the evidence of Detective Sergeant Bateson, and the submissions of the Director. They could scarcely have set higher the value of the co-operation.
The provision of past co-operation and the promises of future co-operation carry with them several weighty burdens. As a provider of information to the authorities, you have been branded as an informer. I have had placed before me today, highly persuasive evidence as to the terrible prison conditions you are experiencing, and as to the harmful effects on your health. In prison and out, you will be dependant on the authorities keeping you well protected. Only the highest possible level of protection will be appropriate. The balance of your time in prison will be served in highly restricted conditions. That alone is a major mitigating consideration.
A substantial part of the sentencing discount that you are being given is specifically for your promises of future co-operation. You are likely to be required to give evidence several times. At those times, you are likely to be subjected to fierce cross-examination. It is likely that you will suffer considerable stress in justifying the extensive second level of sentencing discount. Having said that, I will also say that the closer attention you have paid and will pay in the future to the truth, the less stress you are likely to suffer.
The plea of guilty as to the murder of Michael Marshall is itself valuable for more than one reason, which I need not spell out. I say that even though there was, on my assessment, a very strong case against you as to that murder.
The provision of the three statements is of enormous value although the extent is not easy to evaluate. The statement as to Michael Marshall alone is of very great significance, and in several ways. That significance is enhanced by the support your statement is given by evidence from other sources. The information which you provided has significantly increased the strength of the already very strong case against the gunman. It has added strength to the case against the third man, which effect may be the greater from a long-term perspective. At times, the value of evidence may be the greater where the other evidence is not so strong. The provision of the three statements has provided to investigators invaluable information of use to them in uncovering other evidence.
I will add a brief comment about long-term perspective. The murders of Mark Moran, Jason Moran, Pasquale Barbaro and Michael Marshall have more than you in common. There have been in Melbourne, over the last five years, several other killings and conspiracies with common links. Several people have been charged and are awaiting trial. It is preferable that the risk of potentially prejudicing those trials should be minimised. The laying of certain of the charges occurred close to the time that you started to provide information. There appears not to have been further killings since those charges were laid. The indications are that there is a link.
That you are remorseful is patent from your actions in providing such a high level of past co-operation, pleading guilty and undertaking to give evidence as required.
I note that there are no victim impact statements before me. I am told that the opportunity to submit same was provided, but declined.
The murder to which you have pleaded guilty was an extremely serious offence. Those who procured it and carried it out engaged in a planned execution. I accept that your knowing role in what took place was much less than theirs. I accept that you had limited options from the time that you picked up the gunman. Indeed, what Mr Langslow put to me in more detail on that subject was accepted by the Director as being reasonable.
Also to be treated as serious by me are your prior convictions. The most relevant of those was that for aggravated rape and related offences which led to you being sentenced to a long prison term nearly twenty years ago.
You are 42 years of age, having been born in April 1962. The report of Dr Glaser which has been tendered, summarises part of your background. More detail was provided by Mr Langslow. In short, you were born in Germany. You came to Australia as a three year old. Your father was a strict disciplinarian. From your childhood, there appears to have been a pattern of your putting a high priority on being accepted by your peers, but with limited success. Your first trouble with child welfare authorities was at an early age. The same applies as to the courts.
You have had for some years a supportive partner, whom you met in Japan. Her letter placed before the court contains a promise of continuing support. You have had problems finding friends who have not themselves had a criminal past. Those problems ultimately led you into the company of men for whom you chose to carry out certain kinds of activities like surveillance and driving. In choosing that company and those kinds of activities, you set yourself up for the kind of serious trouble that eventuated.
In sentencing you I must make allowance for the sentence that you are at present undergoing. On 18 June 2004 at Bendigo, Judge Smallwood imposed two sentences. One appears to have no impact on me. The other had him imposing a sentence of three years and one month for burglary and like offences. He set a non-parole period of two years. He set no figure for pre-sentence detention. It is appropriate that I do set a figure for pre-sentence detention as to the period from the date of your arrest on 25 October 2003 to the date of your being sentenced by Judge Smallwood on 18 June 2004. The period is 237 days. I direct that that figure be entered in the court records.
For the murder of Michael Marshall, I impose a sentence of imprisonment for eighteen years. I direct that it be served concurrently with the sentence imposed by Judge Smallwood. I set a non-parole period of ten years.
Appendix A
| Ellis | (1986) 6 NSWLR 603 | Armed robberies |
| Hentschel | [1988] VR 362 | Sexual |
| Cartwright | (1989) 17 NSWLR 243 | Drug |
| Young | [1990] VR 951 | Cause Injury |
| Perrier (No 2) | [1991] 1 VR 717 | Drug |
| Gallagher | (1991) 53 A Crim R 248 | Drug |
| Mundy Beaumont & Despot | (1994) 76 A Crim R 92 | Drug |
| Tan | (1995) 78 A Crim R 300 | Drug |
| John Cuthbertson | 13/11/95 VCA not reported | Murder |
| Jai Cuthbertson | 13/11/95 VCA not reported | Murder |
| Rostom | [1996] 2 VR 97 | Drug |
| Su | [1997] VR 1 | Drug |
| Dinic | (1997) 149 ALR 488 | Drug |
| Tuhi | 30/10/97 VCA not reported | Drug |
| Beckett | [1998] VSC 219 (Vincent J) | Murder |
| Beckett | [1998] VSCA 148 | Murder |
| Duncan | [1998] 3 VR 208 | Deception |
| Carey | [1998] 4 VR 13 | Drug |
| Kokkinos | (1998) 101 A Crim R 227 | Counterfeiting |
| Evans and Tsagaris | (2000) 112 A Crim R 234 | Manslaughter & Murder |
| TLT | (2000) 114 A Crim R 105 | Drug |
| Ritter | [2000] VSCA 135 | Drug |
| ZMN | (2001) 4 VR 537 | Armed robbery |
| AB v The Queen | (1999) 198 CLR 111 | Sexual |
| Ryan v The Queen | (2001) 206 CLR 267 | Sexual. |
| Wong v The Queen | (2001) 207 CLR 584 | Drug |
| Torney & Hentschel | [2003] VSCA 36 | Theft |
| Johnson v The Queen | (2004) 78 ALJR 616 | |
| Williams & ors v DPP | [2004] VSC 516 (Gillard J) |
Appendix B
Summary of Undertakings by Thomas Hentschel on 19 January 2005, to be noted in the records of the Court, pursuant to section 5(2AB) of the Sentencing Act 1991.
§ Undertaking to assist the police and give evidence for the prosecution against any accused charged in relation to the murder of Michael Marshall, as per his statement dated 13 July 2004 (25 pages).
§ Undertaking to assist the police and give evidence for the prosecution against any accused charged in relation to the murders of Jason Moran and Pasquale Barbaro, as per his statement dated 13 July 2004 (18 pages).
§ Undertaking to assist the police and give evidence for the prosecution against any accused charged in relation to the murder of Mark Moran, as per his statement dated 9 January 2005 (15 pages).
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