R v Mustey

[2001] VSC 68

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1453 of 2000

THE QUEEN

v.

SHANE MATTHEW MUSTEY

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	16 FEBRUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 68

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CATCHWORDS:                  Murder – Admissions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C. Hillman	Office of Public Prosecutions
For the Accused	Mr. I. Crisp	Victoria Legal Aid

HIS HONOUR:

1           Shane Matthew Mustey, the jury empanelled upon your trial has found you guilty of the murder at Melbourne, in the State of Victoria, on 29 August 1999 of Mark Welbourne King.  It is now my responsibility to impose sentence upon you.

2           Against that background, I have had regard to the fact that you have admitted 44 prior convictions arising from 14 court appearances between January 1992 and June 1999.  They relate (inter alia) to convictions for theft, the failure to answer bail, criminal damage, your possession of property suspected of being stolen, unlawful assault, the causing of injury intentionally, the causing of wilful damage to property, the obtaining of property by deception and attempting to do so, robbery, causing injury recklessly, burglary, attempted burglary, being in possession of a drug of dependence (heroin) and using a drug of dependence (heroin).

3           You have undergone a number of periods of imprisonment, and I note that on the occasion of your last appearance on 8 June 1999, which, it should be remembered, was only approximately 10 weeks before you killed Mr King, you were convicted of failing to answer bail and three counts of theft.  An effective sentence of imprisonment for two months was imposed, the service of which was suspended for a period of 12 months.  It is evident that you were dismissive of the opportunity which was then given to you to avoid further incarceration, in spite of your lengthy criminal history.

4           The circumstances surrounding the commission of the crime for which I must now impose sentence have been canvassed in the course of the trial and need only be set out in a relatively brief form at this stage.  Your victim was, at the time of his death, aged 46 years.  He worked for a travel company based in Melbourne and resided in an apartment complex in Exhibition Street.  Mr King, who lived alone, was a regular patron at a number of clubs situated in Little Bourke Street and which were only a short distance from his home.  Shortly after midnight on 29 August 1999, he was seen at a club called Club Chinatown, where he remained for approximately half an hour.  He was last seen alive at another establishment known as the Shanghai Club at about 3 a.m.  Staff at that club gave evidence that Mr King appeared to be inebriated and he was refused service.  He appears to have accepted this assessment of his condition without demur and quietly left the premises.

5           When he did not attend work on the following Monday and Tuesday, two of his work colleagues became concerned.  Eventually they went to his apartment, where they sought assistance from the caretaker of the building.  He was able to gain access to Mr King's apartment, which was found to be in a state of disarray as if it had been ransacked, and located his body in the bedroom.

6           Mr King had suffered multiple head injuries, an injury to the cartilage of his larynx and two stab wounds, one to his lower back and one to the sole of his left foot.  He had been bound and gagged, and had obviously been subjected to a savage beating. 

7           The circumstances under which your attention was attracted to the deceased are unknown.  It is highly likely that you appreciated that he was both intoxicated and vulnerable; in other words, that he was what could be appropriately described as a "soft target".  Whether or not you met Mr King in the street or followed him to his building has not emerged from the evidence.  However, there is no doubt that you were able to gain access to his apartment, and I am satisfied that your intention at the time was either to steal from him or rob him according to what you perceived was necessary in the circumstances to secure his money.

8           Once inside the apartment, it appears that a struggle took place between yourself and Mr King.  Probably after securing his credit cards and the personal identification numbers, you bound his hands and feet and placed a gag in his mouth.  You then left his apartment and entered one of the building's lifts, where you were seen by two other occupants at approximately 11 on that Sunday morning.  It is likely that you had been in the apartment for some hours at that stage.  The same couple saw you moments later coming from the direction of a Commonwealth Bank automatic teller machine.  They then noticed you re-enter the apartment building.  Records indicated that at 10.41 and 10.42 that morning attempts were made to access Mr King's Commonwealth Bank account using his Keycard at the teller machine located in Lonsdale Street.  Both attempts to withdraw $400 were unsuccessful because the wrong PIN was used.  Further evidence was given during the course of the trial that you used, or attempted to use Mr King's American Express card to purchase goods later that day. Unfortunately, from your perspective, your fingerprints were located on a number of items within the unit and you very quickly came under suspicion.  Later, it was ascertained that your DNA matched that found on a cigarette butt and that Mr King's blood was present on your T-Shirt.  You were arrested three days later on unrelated matters.

9           On Sunday, 5 September, whilst in custody, you became aware that the police were keen to interview you about the death of Mr King.  That evening you spoke to a Shift Manager at the Melbourne Custody Centre, a man named Peter Payne.  During that conversation, which was tape-recorded and later played in the court, you indicated that you were involved in the death of the deceased.  You told him that you had obtained your victim's credit cards, that you assaulted him and that, upon forming the view that you had been given the incorrect PIN for the bank account, you returned to the apartment and made further demands for the correct numbers, before you again assaulted Mr King.

10          You will understand that the crime of murder which you committed is, for practical purposes, the most serious known to our law.  Its significance arises from the fundamental importance that is attributed in our society to the life of each of those who dwell within it.  You engaged in vicious attacks upon Mr King with the intention of at least causing really serious injury to him for no better reason than to secure a relatively small amount of money and as an expression of a measure of frustration when you found yourself unable to gain access to the funds in his bank account.  In my opinion, there is nothing in the evidence which has emerged before the court that can be seen to mitigate the seriousness of this behaviour.  Your level of personal culpability is very high.

11          I have read the victim impact statements that were handed to me in the course of the proceeding and observed that, in your case, as in so many that come before this court, not only have you unlawfully taken the life of your immediate victim, but you have left his family and others who were close to him with a deep and continuing sense of anguish and loss. 

12          Through the sentences which are handed down upon those who commit such offences, and consistent with the application of other relevant sentencing principles, the courts must deter like-minded persons from acting as you have done.  They must, in addition, and where appropriate, effect just retribution upon perpetrators.  These considerations must, I consider, be taken into account in your case.  Nevertheless, these are not the only matters to be taken into account, and each occasion and each offender must be viewed in the light cast by all of the circumstances relevant to the individual offence and perpetrator.

13          As far as your background is concerned, you are an Aboriginal man who was born in Sydney and you are now aged 31 years.  You were adopted whilst an infant by a non-Aboriginal couple.  The family resided in New South Wales before moving to Romsey when you were 8 years old.  Your adoptive parents still live in the area.  You state that your childhood was relatively happy and that you were not subjected to any form of racial discrimination either at home or at school.  Although your adoptive parents regarded you with affection and treated you well, you perceived them as strict disciplinarians.  I suspect that, as has occurred in many similar situations, a number of underlying issues arising from your personal background, including your identity as a person of Aboriginal descent and as an individual, were never appropriately addressed as you were developing.  I understand that, to this day, there has been no contact with your biological parents and little, if any, with the Aboriginal community.

14          Your contact with your adoptive parents over a number of years appears to have been very limited and you have lived without what could be described as personal anchors and support.  Be that as it may, you rebelled against parental control and eventually left school after completing Year 10, and home, aged 16.  Before long, you returned, lived in a caravan for over a year whilst working on a sheep property.  You then went on to perform work as a labourer, a gardener and a swimming teacher at local primary schools, as well as some clerical work.  However, prior to your incarceration in September 1999, you had not held a job for five years.  You had been a user of cannabis and for some years you were a heavy drinker before you began to use heroin, to which you became addicted.  In recent years, your life has been characterised by alcohol and drug abuse and the commission of offences involving dishonesty and violence.

15          I accept that you have experienced a measure of remorse for your actions and are ashamed of what you have done.  This emerged to some extent in the conversation that you had with Mr Payne in which you volunteered information about Mr King's death, although I should add that I consider you were primarily concerned about your own situation at that time.  Not surprisingly, you feel that you have let down your family and, in order to avoid upsetting them even further, you warned them not to read the newspapers, watch the news or visit you.  I imagine that that sense of shame must weigh heavily upon you.

16          In determining an appropriate sentence to be imposed upon you, I have had regard in your favour to your age and your background.  You are still relatively young and, although your criminal history provides little cause for confidence, I consider that your eventual rehabilitation must be accorded significance as a sentencing consideration.  I am familiar with and have had regard to the range of sentences that have been imposed by this court over recent years in respect to the crime of murder, bearing in mind that each case must be considered in the light cast by its own particular circumstances, including those of the individual offender.

17          The task of determining an appropriate sentence is frequently very difficult.  I have found it so in your case.  To some extent, the direction that your life has taken can be seen as demonstrating the difficulties confronting so many in the Aboriginal community.  But, ultimately, the court is confronted with the undeniable and irrevocable reality that you have taken the life of another in circumstances of considerable viciousness.

18          I have arrived at the view that the appropriate sentence in your case is one of imprisonment for a period of 17 years.  I fix a non-parole period of 14 years.  I declare that the period of pre-sentence detention, which I understand is 289 days, be reckoned as having been served under the sentence hereby imposed, and I direct that this declaration and its details be entered into the records of the court.

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