R v Snell
[2017] VSC 394
•30 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0159
| THE QUEEN | |
| v | |
| LANIE SNELL | Accused |
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June 2017 |
DATE OF SENTENCE: | 30 June 2017 |
CASE MAY BE CITED AS: | R v Snell |
MEDIUM NEUTRAL CITATION: | [2017] VSC 394 |
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CRIMINAL LAW – Murder - Sentence – Plea of guilty - Pre-mediated killing – Significant planning - Acts causing death out of proportion to motive – Mixed anxiety and depression - Remorse – Reasonably good prospects for rehabilitation – Sentence of 18 years with minimum of 15 years - 6 AAA Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Lewis | Office of Public Prosecutions |
| For the Accused | Mr M. Perry | Dwyer Robinson |
HIS HONOUR:
Lanie Snell, on 8 May 2017 in this Court you pleaded guilty to one charge of the murder of Joshua Kane. Your accomplice Samuel Worthy pleaded guilty to the same charge on the same day. That date was intended to be the first day of the trial. Your other accomplice, Stuart Campbell, had previously pleaded guilty to the same charge on 20 April 2017. He was sentenced by me on 3 May 2017 to be imprisoned for 12 years and ordered to serve a minimum term of nine years before being eligible to apply for release on parole.
On 5 June 2017, during your plea hearing I heard submission from Mr Lewis, Crown Prosecutor, and from Mr Perry of counsel on your behalf on the appropriate sentence I should impose on you. The maximum penalty for murder is life imprisonment and it is now my responsibility to sentence you for this crime.
Circumstances of the offence
You had known Joshua Kane since he was a child. His family was originally from Mount Gambier but moved to Hamilton when Kane was very young. You moved to Hamilton when you were eight having previously lived in North Melbourne. Kane was 20 years of age at the time of his death, you were 34. On 4 May 2014 Kane commenced living at the Hamilton Caravan Park. You and your two children, moved into the caravan next to his on 16 September 2014. However, by October 2015 you had moved out of the park and into a property at 5 Rankin Court Hamilton with Myssie Andrews, David Andrews and Scott Wesley.
Your move out of the caravan park seems to have coincided with a deterioration in your relationship with Kane. Indeed you were at the time, not on speaking terms. According to the prosecution, case your hostility apparently stemmed from the way Kane had spoken to and handled your children on at least one occasion. For example, on 22 November 2015 Kane attended a birthday party at 5 Rankin Court. Your son also attended the party but was feeling unwell at the time and so was lying down. Kane apparently observed him doing this and said words to the effect of ‘Get up you lazy cunt, its daytime’. You were reportedly very angry at Kane for speaking to your son in that manner and so stopped speaking to him following that incident until the day of his murder.
The animosity you harboured in relation to Kane seemed to be shared by your two accomplices Campbell and Worthy, however for reasons less obvious than yours. Nonetheless from mid-January 2016 onwards you knew Worthy wanted to harm Kane because the two of you had discussed doing so. It was around this time that you commenced a sexual relationship with Campbell. You were at the time using cannabis, amphetamines, alcohol and Valium.
On 22 January 2016 you, Campbell and Worthy were overheard by Myssie Andrews discussing your intention to kill Kane. During that conversation you offered the use of your car to assist in the commission of Kane’s killing.
On Saturday 23 January 2016 you, Campbell and Worthy were at your house. It was decided the three of you would invite Kane on a walk to Mt Eccles National Park for the purpose of attacking him. You all agreed that you and Worthy would carry out the actual assault on Kane. Further preparations were made for the drive including packing a plastic bottle of bleach along with a machete Campbell and Worthy had bought from a Boating, Camping and Fishing store on 10 December 2015. You also each arming yourselves with a pocket knife. At about 7:14 pm Worthy is alleged to have rung Kane and invited him to go for a drive. He agreed. The three of you went to the caravan park and collected him in your car, a black Mitsubishi sedan.
Worthy drove with you and Campbell to the caravan park to collect Joshua Kane and, after stopping briefly to allow him to purchase a drink from a supermarket, drove to Mount Eccles National Park where Worthy parked your car in the top car park.
The four of you then walked along a track leading to Lake Surprise. You walked half way to the lake to some rocks where you and Campbell smoked some cannabis. As it started getting dark you all began walking back to the car. During that walk, Worthy attacked Kane with the machete from behind striking him several times and causing very serious injuries.
Kane cried out in reaction to the attack. While Campbell walked away in the opposite direction from where the attack was occurring, you walked towards Worthy and Kane. You and Worthy then returned to where Campbell was waiting. Worthy was holding the blood soaked machete and shaking. He reportedly said he couldn’t do it and tried to pass the machete to Campbell who refused to take it. You and Worthy then walked back to where you believed the deceased was but could not locate him.
You, Campbell and Worthy then returned to the car park. Shortly thereafter you heard Kane screaming out for help. You and Worthy walked in the direction of where the screams were coming while Campbell remained in the car park. The screaming stopped abruptly and you and Worthy returned to the car park a short time later. Worthy then asked Campbell to clean the bloody machete which he did while you and Worthy changed your clothes.
An attempt was then made by the three of you to depart the car park in your car, however the car battery was flat and so you called your housemate Myssie Andrews, who drove to meet you and provided a jump start to get the vehicle going.
On the drive back to Hamilton you all discussed what you would say if asked about your contact with Kane on that day. It was agreed that Campbell would take the blame for killing Kane on the basis that he did not have children whereas both you and Worthy did.
The following day you returned to Mount Eccles National Park to collect a number of incriminating items of evidence including the deceased’s mobile phone and his caravan keys that had been left at a ranger’s station. You also attempted to locate Kane’s body but abandoned the search when you could not find it. On 26 January 2016, you and Campbell moved back to the caravan park and collected the deceased man’s mobile phone, a set of keys and a singlet. Campbell removed the SIM card from the phone and broke it.
Joshua Kane was reported missing to the police by his sister on 28 January 2016. That same day police spoke to Worthy, who gave a false account of when he had last seen the deceased.
On Friday 29 January 2016, Myssie and David Andrews attended at the Hamilton Police Station after learning of Kane’s disappearance through his sister. They then accompanied police to the location where your car had been jump started. A crime scene was established and the deceased body found shortly thereafter approximately 70-80 metres down a subsidiary track leading off from the main walking track.
The following day the three of you were arrested and interviewed by police. You all initially maintained that after taking the deceased to the supermarket you had returned him to the caravan park. That story later changed, with each of you admitting to being present when Kane was murdered but giving conflicting accounts of who was responsible for causing Kane’s death.
A post-mortem examination was conducted on 31 January 2016 by Dr Linda Illes. The deceased man’s advanced state of decomposition was noted. Dr Illes concluded the cause of death to be multiple sharp force and chopping-type injuries consistent with the deceased having been struck with a heavy instrument with a sharp edge such as a machete, axe or cleaver.
As I said in sentencing Campbell, this was a brutal, cowardly and unprovoked crime against an unsuspecting and blameless victim. You played a crucial role in its commission. You, unlike Campbell and Worthy, had a motive to cause Kane harm. You were extremely angry about the derogatory way he had allegedly spoken to your children on at least one occasion at the birthday party I referred to earlier. It goes without saying that your ultimate response to that alleged incident, if indeed that is what motivated you to do what you did, was not only grossly disproportionate to what ultimately happened but almost inconceivable. Your counsel acknowledged that your reason for being involved in this killing does not stand much analysis. Yet according to the facts on which your plea of guilty is based, you and Worthy were the architects of the planned killing of Kane. During one particular conversation to which I have already referred Worthy suggested you and he could kill Kane and that no one would know.
While you may not have dealt the fatal blows you walked in the direction in which the attack on Kane was occurring and were present for at least the end of the first attack and the entirety of the second, at which point Kane was killed. You also took part in the concealment of the offence for a number of days after the murder had occurred.
Victim Impact Statements
Four victim impact statements were tendered to the Court during your plea hearing. They came from Garry Foley, the father of the deceased; Janine Kane, the mother of the deceased; Samara Foley, his sister; and Tess Emery, Garry Foley’s partner. These statements illustrate the immense suffering you have forced Joshua Kane’s family to endure. They are understandably bewildering by the sequence of events which led to the death of their much loved son, brother and step-son. What pains them most is how Joshua Kane was betrayed and ultimately murdered by those they, and indeed Joshua, believed were his friends. There is unfortunately little the Court can do to alleviate the profound loss felt by Joshua’s family. Nonetheless I note I have taken their statements into account in coming to the sentence I will soon impose on you.
Personal Circumstances
You are now aged 35 years of age. Your mother and father have supported you throughout this process. Your father was present at your plea hearing as I’m told your mother would have been had she not been recovering from leukaemia. You have two brothers, one of whom you report sexually assaulted you over a two year period when you were 12 years old. You have three children to your former partner, from whom you separated in 2008. Your children are aged 10, 14 and 17 years. You currently have no physical contact with them, the only form of contact coming by way of an infrequent phone call made by a maternal grandparent when the children are in that grandparent’s custody. I am told this arrangement is likely to continue throughout your incarceration. Your youngest child apparently has some level of intellectual disability.
Your own education involved attendance at North Melbourne Primary School until grade 2 when your family moved to Hamilton. There you were enrolled in the local primary and secondary schools until age 15. You report being unhappy throughout your schooling. You were bullied for being overweight. Your problems with your body image continued into adulthood, during which time you periodically suffered from bulimia.
You commenced TAFE study sometime after leaving secondary school with the aim of qualifying for a mechanics course. However by this time the first of your three children had arrived. You ceased studying shortly thereafter and spent most of your succeeding years on a single mother’s pension.
Your criminal history is relatively modest by this Court’s standards containing only minor property and drug offences, none of which involve violence. I agree, as was submitted by your counsel, that they are of little relevance in deciding the appropriate sentence for this offence besides perhaps illustrating the absence of any ongoing or entrenched history of violence. I will return to this point in relation to your rehabilitative prospects shortly.
Mental state
A psychiatric report authored by Dr Danny Sullivan was tendered on the plea on your behalf and became Exhibit 1 though Dr Sullivan did not give evidence. In his report Dr Sullivan diagnoses you with a long standing mood disorder best described as mixed anxiety and depression of a mild-moderate severity which, in his opinion, is in substantial remission likely attributable to effective antidepressant treatment and the absence of substance abuse. This diagnosis is buttressed by comprehensive medical record materials which were also tendered during your plea and indicate that you have been suffering from depression for quite some time.
Dr Sullivan notes your history of polysubstance abuse which commenced when you were aged 31 with cannabis and, for a six-month period when you were aged 33 years, progressed to methamphetamine.
You reported to Dr Sullivan feeling remorseful for your offence. However, when probed by Dr Sullivan you offered little explanation for why it was committed. You told him you that you did not think the discussions you had with Campbell and Worthy about harming Kane would ever be acted out, however in Dr Sullivan’s opinion, you could clearly foresee it was a distinct possibility.
Finally, Dr Sullivan offers the opinion that your incarceration will weigh more heavily upon you due to the separation it will impose between you and your children. Conversely, he believed your mental health difficulties may improve while in custody by virtue of the availability of effective treatment and abstinence from illicit drugs.
Plea of guilty
As I have already mentioned you and Worthy pleaded guilty on 8 May 2017. Campbell pleaded guilty earlier on 20 April 2017, having offered to do so on 20 March 2017. You entered your plea at a late stage, long after the trial was originally meant to commence on 20 April 2017. That followed a committal proceeding at the Warrnambool Magistrates’ Court and three earlier directions hearings in this Court occurring on 15 November 2016, 9 March 2017 and 6 April 2017.
That being the case, while you are entitled to a sentencing discount pursuant s 6AAA of the Sentencing Act 1991 (Vic). It will be considerably less than that applied to Campbell who, as I have already mentioned, pleaded guilty to this offence at an earlier stage and gave an undertaking to give evidence at the trial of you and Worthy, which was then in prospect.
I do however accept that your plea of guilty, along with the apology to Kane’s family you offered through your counsel at your plea, is a sign of your remorse for what you have done. By pleading guilty you have also saved the court and the community the time and expense of a trial. More importantly, you have spared Kane’s family the trauma of having to endure the trial process.
Prospects for rehabilitation and the future
You are now 35 years old. Until this offence you had seldom come to the attention of police. Your foray into drug use which commenced only recently seems to have unsurprisingly led to the predicament you now find yourself in. As noted by Dr Sullivan, a positive effect of your incarceration will be an abstinence from illicit drugs which has, according to him, already improved your mental health.
You have so far not wasted your time in custody instead taking advantage of several courses offered to you which your counsel submitted will make you more employable when you are eventually released.
Heather Baker from the Hamilton Community Church has written a reference and provided it to the Court. She describes your time volunteering as a kitchen hand at the Church café. Ms Baker’s support stands to your credit.
Although I regard your prospects of rehabilitation as reasonably good you, unlike Campbell and Worthy, cannot be categorised as a young offender. Therefore while I believe you pose a low risk of reoffending when released I must place considerable weight on the principles of just punishment, general deterrence and denunciation in concluding the appropriate sentence to be imposed on you.
Conclusion
This was a brutal and calculated attack on a vulnerable and unsuspecting victim whom you had known since he was two years old. Each of you played a significant role its commission – you had the motive, Campbell set the bait and Worthy dealt the fatal blows. The killing was premediated, cowardly and utterly senseless.
For the murder of the Joshua Kane, you are sentenced to be imprisoned for 18 years and I fix a minimum period of 15 years that you are required to serve before you become eligible to make an application for parole.
Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that your pre-sentence detention is a period of 517 days not including today and I direct that that be entered into the records of the Court and be reckoned as time already served.
Section 6AAA of the Sentencing Act
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I am required to declare the sentence that I would have imposed on you had you not pleaded guilty to this offence. I indicate that had you not pleaded guilty the sentence I would have imposed would have been a period of 22 years’ imprisonment. I would have fixed a period of 18 years before you would have become eligible to apply for release on parole.
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