R v Schembri

[2010] VSC 402

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0126

S CR 2010 0125

THE QUEEN
V
MARIO SCHEMBRI	Firstnamed Accused
And
BERNADETTE DENNY	Secondnamed Accused

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JUDGE:	T FORREST  J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2010
DATE OF SENTENCE:	8 September 2010
CASE MAY BE CITED AS:	R v Schembri and anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 402

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SENTENCE- Manslaughter – Post-mortem dismemberment an aggravating feature.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale	Office of Public Prosecutions
For the Firstnamed Accused	Mr P Dunn QC with Mr P Tiwana	Robert Stary & Associates
For the Secondnamed Accused	Mr G Steward	James Dowsley & Associates Pty Ltd

HIS HONOUR:

1. Herman Rockefeller made some unorthodox choices in his adult life.  So too did you Mario Schembri, and you Bernadette Denny.  None of those choices was in itself unlawful, nor is it the function of this Court to pass judgment on them.  The upshot of the choices you made, however, is that the scene was set for the totally unnecessary death of a man.  His parents, wife and children are devastated.  The harm that you have caused them is profound.  They will always carry some legacy of it, and so will you.

1. In late 2009 Herman Rockefeller placed an advertisement in “Australian Contacts” magazine.  It ran three times.

“Attractive couple

Attractive fun loving couple who enjoy an active uninhibited but safe sex life.  Swing together and independently.  We are  both in our 30’s.  Daytimes fine for meetings as we are discrete.  Phone 04xx xxx xxx or write.

No single men.”

The advertisement was false in the sense that Mr Rockefeller was acting alone.  Mr Rockefeller had placed 34 similar advertisements in  similar publications since 2000.

1. You had been in a relationship since April 2009, living together at 2/125 South Street, Hadfield.  You, Ms Denny, made contact with Herman Rockefeller who was using the alias of Andy Kingston.

1. In early January 2010, after several telephone contacts, Mr Rockefeller came alone to your house.  On that occasion he had sex with you, Ms Denny, while you, Mr Schembri, watched.  He told you falsely his wife was named Jenny.

1. On 21 January 2010, Mr Rockefeller was to return from an interstate business trip.  He sent a text message to his wife indicating that he would not be home until 10.30pm or thereabouts.  He also made contact with you Ms Denny, and arranged to visit your house.

1. The only evidence as to what occurred after he arrived is set out in your respective interviews with police.  Insofar as your accounts are consistent, I accept the following facts:

·    He arrived alone wanting another sexual encounter.

·    There was a verbal altercation as to whether “Jenny” actually existed.

·    This escalated into a physical altercation involving both of you and Mr Rockefeller.

·    During this physical altercation, Mr Rockefeller sustained the injuries that led to his death.

1. Beyond this, there is conflict in the accounts that you give.  As discussed with counsel, I will endeavour to avoid using the admissions made by either one of you as evidence of those facts in the case against the other.

1. Mr Schembri, you were interviewed by police commencing at 7.02pm on 28 January 2010.  Your account of the fight was as follows.

1. You told the police that Mr Rockefeller “didn’t bring his missus and there was a bit of a confrontation.”  You said that Mr Rockefeller told you his wife was sick, to which you replied, “Come on, you’ve used my wife, you’re selfish”.  You said that Mr Rockefeller tried to leave and you stopped him.  You said he would not stop walking towards the door, so you pushed him and a fight ensued.  I am not satisfied beyond reasonable doubt that your actions in preventing him from leaving were intended to detain him so that you could assault him.  You did intend to detain him, however, and it was only shortly thereafter that the fighting began.

1. The measure of the violence you inflicted can be found in the following answers you gave the police:

You implied he had no chance

“…how could you go against Muhammad Ali…it was like that with him.”

“He didn’t have the anger that I had in me”

“I lost it”

“I didn’t know I could get that angry or that forceful.  I’ve never hit that hard with anybody.”

You could not estimate how many times you hit him, but Mr Rockefeller fell and struck his head, possibly on the ground, and died.  The fighting occurred in the lounge and dining areas of the house.

1. It is more difficult to ascertain the role played by you Ms Denny.  As I observed to your counsel, I consider that you lied remorselessly to the police.  You initially denied any male attended your premises at all.  Then you told them that Andy Kingston arrived at your house that evening wanting sex.  You say you told him you were sick of his lies.  He was challenged about his lack of a sex partner whom he claimed was sick.  You say he wanted sex and touched you on the breasts and between the legs.  You then told the police you slapped his face, Schembri told Mr Rockefeller to “keep his fucking hands off” and Mr Rockefeller responded by saying he liked feisty women and then wrestling started.  Pushing turned to fighting in the lounge room.  You say that Mr Rockefeller, at some stage, kicked you in the shin.  You hit the deceased and he was punched more than a dozen times, although I accept you were referring to punches by both you and Schembri when you said this.  You maintained to the police that the fighting moved to the garage and was “full on” involving all of you.  Mr Rockefeller fell to the ground, got up, fell down again and remained prone.  Whilst I have grave reservations about your truthfulness, this account is the only admissible evidence of  your participation in the events that led to Mr Rockefeller’s death.  I shall act upon it in evaluating your participation in those events.

1. You maintained to police that Mr Rockefeller was still alive.  You told the police that he had been loaded alive into the boot of Schembri’s blue Commodore and that you drove him to the Heathcote area.  You could hear him moaning and tapping in the boot.  You then told the police you dumped the deceased, still alive, in that area.  You even travelled with the police to that area and feigned assistance whilst they conducted an extensive search for a man who, on your account, may still have been alive.

1. The truth was, of course, that by that stage you knew the corpse of Herman Rockefeller had been dismembered and burnt, and you participated in the purchase of a chainsaw and protective clothing so that the dismemberment could be effected.

1. The objective evidence of telephone records and traffic cameras demonstrate that both of you did in fact drive to the Heathcote area late on the night of Thursday 21 January and into the early morning of 22 January.  You did not leave Mr Rockefeller’s body there, but instead returned with it to Hadfield.

1. During 22 January, both of you loaded Mr Rockefeller’s car onto Mr Schembri’s flatbed truck.  The car was taken to Ballan and abandoned.

1. Both of you attended Bunnings in Broadmeadows at about 1.00pm on Saturday 23 January.  You purchased an electric chainsaw, six plastic drop sheets, two pairs of disposable overalls, a pack of five face masks and a dustpan and shovel set.  CCTV footage shows you, Mr Schembri, testing a chainsaw for weight and balance, much as a cricketer might sample a bat for pick up and grip.

1. On the Sunday, you, Mr Schembri, dismembered the corpse of the deceased.  You cut his arms, legs and head from his torso.  In the final stage of your interview, Ms Denny, you belatedly admitted being inside the house whilst Schembri was doing this.  Whilst you did not actually dismember the corpse yourself, you participated in the Bunnings purchases, and on that Sunday in January, you and Schembri attended at Safeway and purchased two packets of garbage bags.  Some human remains were later found in garbage bags.

1. On Monday 25 January, you, Mr Schembri, conveyed the garbage bags of the body parts to the home of a friend at 95 View Street Glenroy.  You burnt those body parts in a 44 gallon drum in the rear yard over the course of the next two days.

1. On Thursday 28 January, you both attended Safeway again where you purchased two 1 litre bottles of bleach, which were used in an attempt to clean bloodstains at the Hadfield address.

1. Every unlawful killing is a serious matter.  I accept the submissions of both your counsel that the death of Mr Rockefeller arose essentially spontaneously.  That, of course, is often the case in manslaughter, where there is an absence of specific murderous intent.  I consider that you both formed the view, perhaps with some justification, that Mr Rockefeller was trying to take advantage of you.  I accept that this made both of you, and particularly you Mr Schembri, very angry, and that that anger led ultimately to Mr Rockefeller’s death.  Had your offending ended there, your respective positions would be significantly less precarious than they are now.  Had you contacted an ambulance or police and put your side of events openly and frankly, you would still be confronting a manslaughter charge, but in circumstances where a sentencing court could readily understand and, perhaps to some extent, sympathise with your predicament.  Whilst I regard your efforts to conceal Mr Rockefeller’s death as serious aggravating circumstances, they should not cloud the fact that the events leading up to Mr Rockefeller’s death were spontaneous and a response to the anger that I have described.

1. It is clear enough that you, Mr Schembri, detained Mr Rockefeller and were responsible for perhaps all the heavy blows he sustained and it is equally clear that you, Ms Denny, actively assisted and encouraged Mr Schembri to the point of striking Mr Rockefeller yourself.  It is also clear that whilst Mr Schembri actually dismembered and burnt the body, you, Ms Denny, assisted him to purchase the necessary equipment at Bunnings and Safeway as I have set out.  For reasons that I shall elaborate upon shortly, I have concluded that Ms Denny’s overall moral culpability is somewhat less than Mr Schembri’s, however, it is still considerable.

1. Victim Impact Statements have been tendered by the prosecution.  They have been supplied by various members of the Rockefeller family in including his brother Robert, his parents, his wife Vicky and their daughter Sarah.  The damage you have caused to a decent honourable family is incalculable.  I quote from the psychological report that accompanied Mrs Vicky Rockefeller’s Victim Impact  Statement:

“Mrs Vicky Rockefeller is the victim of horrifying traumas.  The world as it  was known prior to her husband’s death is no longer safe or predictable.  The traumas that she has experienced and continues to re-live have imposed a life sentence.  She is isolated, set apart and defined by her husband’s death (killing), horrendous disposal of his body and the discovery of his secret life.”

You cannot be held accountable for Mr Rockefeller’s secret life.  By your pleas, however, you admit criminal responsibility for his death and defilement of his body.  I repeat the damage you have caused to a decent honourable family is incalculable.

1. I turn now to your personal backgrounds, and I shall deal first with Mr Schembri.  You are the father of seven surviving children.  You have six grandchildren and were one of eight children yourself.  You came to Australia from Malta in 1955 when you were three.  Your parents both worked long and hard to bring up their children.  Your schooling in Broadmeadows was brief and you are semi-literate.  You developed an affinity with sheet metal work in Technical School and have occupied yourself with manual types of work as an adult.  Your childhood was harmonious, within a boisterous, happy family.  Your first girlfriend, Christine, became your wife of over twenty years, and with her you had eight children.  Your sixth child, Tamarra, died at 16 months and I accept this caused you significant grief.  I refer to this because you told the police about it in the context of the anger you felt and how you reacted to it.  You separated from Christine and commenced another relationship with Helen Battersby.  This occupied eight years and concluded in about February 2009.  Shortly after that you commenced your relationship with Ms Denny.

1. You have worked for most of your adult life initially in factories, then with the Melbourne Harbour Trust, then as a maintenance worker for Essendon Council, and for a time you ran a rubbish removal business.  You also would buy old cars and either repair and sell them or sell parts from them.

1. In October 1992, you were convicted of intentionally causing serious injury at the County Court in Melbourne.  I have read Judge Crossley’s sentencing remarks.  I quote from these:

“The cause of the dispute is, in one sense, not particularly relevant for my purposes.  What is important, is that in order to address some grievance, real or imagined, you violently and viciously attacked your victim.  You were very, very angry indeed.  You lost control of yourself and punched him heavily, causing him to fall to the ground.  It appears that when he went down, you hit and kicked him to head and body.”

1. You were sentenced to 9 months imprisonment to be served by way of an Intensive Correction Order.  Whilst this offending occurred in March 1991, there is a depressing similarity between your loss of control then and that which occurred 19 years later in Hadfield.  Mr Coffee, a Clinical Psychologist, was engaged by your solicitors for forensic purposes.  He considers that you are not a belligerent man, or one given to compulsive aggressive acts.  Given the time elapsed between your convictions, I accept this.  You frankly conceded to him that certain types of provocation caused you to explode and that you were aware of this potential within you.  Mr Coffee thought that you were not suffering from any mental illness at the time of this offence, although he thought your poor reasoning capacity when highly emotionally aroused may have contributed to your offending.  It is apparent from his testing that you are an unsophisticated man.

1. You have two other criminal convictions which add little, if anything, to the 1991 conviction that I have referred to.

1. Ms Denny, you are now 42 years old.  You have no relevant prior convictions, save for two drink driving matters which serve to underline a drinking problem you have had throughout your adult life.  You have two children, aged 16 and 15.  These children are the product of a long term relationship you had with Robert Brisler.  Mr Brisler died in 1997.

1. You are the youngest of three children.  Your parents are still alive, and in fact are now the custodians of your daughters.  You were educated to the end of Year 9, having repeated that year.  You assert you were sexually abused by an uncle as an adolescent and your psychologist, Carla Lechner, has accepted this fact when forming her conclusions.  You completed a secretarial course after leaving school and then worked as a secretary for several years.  You were involved in a serious car accident at this time, suffering multiple fractures and serious internal injuries.

1. You met and lived with a married man at about the age of 22.  He discontinued the relationship and soon after you met and soon moved in with Mr Brisler.  You reported to Ms Lechner that he was physically and emotionally abusive.  You report becoming socially isolated and abusing marijuana and alcohol.  After his death you were left to bring up two young children then aged, by my calculations, three and one.  Your drinking increased, you became depressed and, not surprisingly, your role as a mother suffered.  You had no permanent relationship during this time.  You met Mario Schembri in April 2009 and commenced a sexual relationship that day.  He moved into your unit within a week.  Prior to meeting him, you had been hospitalised for alcohol rehabilitation.  Your children found Mr Schembri controlling, moved out and eventually took out an intervention order against him.  You were keen to experiment sexually and you engaged a prostitute to join you and Mr Schembri in sexual activity in mid-2009.  Throughout 2009 your drinking continued to cause difficulties in your life and for those around you.  You were diagnosed with depression in 2008 and prescribed Zoloft for it.  In August and September 2008, you were undergoing various forms of alcohol rehabilitation.  You resumed drinking not long after Mr Schembri moved in.

1. Throughout August to October 2009 you continued receiving various forms of treatment for alcoholism  including as an inpatient in Moreland Hall.  Your treating General Practitioner, Dr Lynch, observed depressive symptoms in November 2009 and Zoloft was again prescribed.

1. Ms Lechner assessed you for forensic purposes on August 17, 2010.  She has prepared a comprehensive and helpful report.  Her opinion is that you exhibit symptoms consistent with a Dependent Personality Disorder (DSM IV), and that you experienced symptoms of depression and anxiety at a “moderate level”.  You have an average level of cognitive functioning.  Ms Lechner’s opinion was that you lacked the moral, social and emotional fortitude to stand up for yourself and that your level of dependence on Mr Schembri explains your failure to challenge Mr Schembri’s decision to dismember Mr Rockefeller.  Dr Sullivan, a psychiatrist, saw you at the request of your solicitors on 24 April 2010, but did not report until 28 August 2010.  He was provided with relevant material including Ms Lechner’s report.

1. Dr Sullivan agreed that you suffer from a dependent personality disorder and that you suffer from symptoms of anxiety and depression that justify antidepressant medication and psychological treatment.  His opinion is that your personality structure is relevant to the poor judgment you showed, particularly in assisting in the efforts at concealment.

1. Neither Ms Lechner, nor Dr Sullivan, thought there was any clear nexus between your mental disorders and the offending, and neither thought your capacity to appreciate right from wrong was impaired.

1. Mr Dunn, of Her Majesty’s Counsel, on your behalf, sensibly conceded that the well known Verdins principles were not engaged in this matter.  The psychiatric and psychological evidence was relevant for another purpose – it explained, he argued, how it could be that a person of prior good character could become involved in this type of offending.  You prioritised your partner’s wishes over your own.  I accept that without Mr Schembri’s explosive loss of control, this offence would not have occurred.  I also accept that your personality profile provides some explanation for your failure to withdraw from the brutal assault upon Mr Rockefeller.  In that sense, I consider that your overall moral culpability is somewhat lower than Mr Schembri’s, despite the fact that your encouragement, assistance and participation were considerable.

1. Your pleas of guilty operate to reduce the sentences that this court must impose.  By them you have saved the community the significant expenditure of a trial and you have spared the Rockefeller family further trauma.  I have difficulty accepting that they are evidence of remorse in any real sense.  I consider that given the admissions made, the strong forensic evidence available, and the appalling post-offence conduct of you both, convictions for manslaughter were inevitable.

1. Mr Schembri, in your record of interview, after a period of negotiation, you were open with police and confessed your part.  I consider this to be evidence of contrition or remorse.  Ms Denny, your conduct whilst in police custody was reprehensible.  You were arrested on Thursday 28 January.  By that stage, the disappearance of Mr Rockefeller and the trauma it was causing his family was lead bulletin/front page news and had been so since Sunday 24 January.  You knew this.  Notwithstanding this, after you firstly denied all knowledge, you then told the police the deceased had been taken to Heathcote alive and dumped there.  You travelled there with them under the guise of helping them find him, perhaps alive.  This aspect of your conduct was simply mendacious.  The explanation for it must lie in your reluctance to admit Herman Rockefeller’s real fate and your participation in it.  I can distil no remorse or contrition from your police interview.

1. Character references were tendered on your behalves.  I accept that you, Mr Schembri, have been a good father, with strong family values.  I accept you have been a good neighbour and friend to many people.  They speak of your generosity and love for your children.  They speak of the loss of your daughter and the impact it had upon you.  I accept that, and I also accept that you have some insight into the consequences of your offending.  In other words, I consider you are remorseful for the harm you have done.  I consider your prospects for rehabilitation are reasonable only.  I am troubled by your propensity to lose control when angry.

1. Laurel Gore, a Senior Support Worker with the Prison Network Ministries, has counselled you, Ms Denny, for the last eight months, once or twice a week.  She speaks of your developing an insight into the consequences of your actions, and your remorse about “all that has occurred.”  She says you are ashamed that you could have been “part of a man’s life ending in such tragic circumstances.”  As you no doubt now appreciate, your conduct has not just had a profound impact on Mr Rockefeller’s family, but also yours.  Your aged parents are so traumatised they rarely leave their house whilst charged with looking after your children, who are themselves troubled and grieving.  Tayla Bond also speaks of your now remorse.

1. Your former teacher, Ms Vasallo, writes of your lack of maturity, your dependence on a man in your life, and your non-existent parenting skills.  The adult Bernadette, she says, “behaved like a 14 year old.”  The time that you will spend in custody will give you an opportunity to take stock, acknowledge your weaknesses and plan to address them.  I regard you as exhibiting some remorse, albeit of a belated nature.  I consider it of a lesser order than that exhibited by Mr Schembri.  I regard your prospects for rehabilitation as reasonable also and  largely dependent on your ability to avoid alcohol in the future.

1. In both cases, I consider there is a need to punish you and denounce your conduct.  I am also of the view that the aspect of general deterrence must be given weight.  Anger related violent incidents are everyday occurrences.  Every serious punch that is thrown has the potential to kill.  Those inclined to settle their arguments with fists must be deterred if possible. Mr Schembri, although your prior conviction was nearly 20 years ago, this is the second time in your life that your anger has led you to commit a serious criminal offence.  I consider that the aspect of personal deterrence must be given some weight in your sentence.  I do not consider it has any real part to play in your sentence, Ms Denny.  As I have stated earlier, I have found in both cases some remorse and that your prospects for rehabilitation are reasonable.  Both of you have a good deal to offer the community, providing you can conquer your demons.

1. The maximum sentence for manslaughter is 20 years imprisonment.  But for your plea of guilty, Mr Schembri, I would have sentenced you to 11 years imprisonment with a minimum term of 9 years.

1. But for your plea of guilty, Ms Denny, I would have sentenced you to 9 years imprisonment with a minimum of 7 years.

1. Please stand.  Mr Schembri, you will be convicted and sentenced to 9 years imprisonment.  I direct that you serve 7 years before becoming eligible for parole.

1. Ms Denny, you will be convicted and sentenced to 7 years imprisonment.  I direct that you serve five years before becoming eligible for parole.

1. I declare that both of you have served 223 days pre-sentence detention, not including today and that such detention is to be noted in the records of the court.

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