R v Spence - [2015] VSC 321

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0023

Between:

THE QUEEN
and
HARVEY SPENCE	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 February to 25 March 2015 (Trial); 19 June 2015 (Plea)
DATE OF SENTENCE:	13 July 2015
CASE MAY BE CITED AS:	R v Spence
MEDIUM NEUTRAL CITATION:	[2015] VSC 321

---

CRIMINAL LAW – Sentence – Murder – Accused suspected deceased of informing on him to police about illicit drug activities – Accused drove deceased, with others, to rural location on pretext – Accused dragged deceased into shed and directed PM to tape his hands behind his back and gag him with tape – At direction of accused, at gunpoint, TM placed plastic bag over deceased’s head but refused to tie bag – PM instead tied plastic bag – Deceased suffocated to death – Intentional killing – Accused directed PM and TM to burn body, who did so only partly – Body ultimately burnt to ashes by WR and AC – Ashes disposed of by WR and others – Very serious example of murder – No remorse – No prior convictions for violence alleged – Moderate reduction in moral culpability on account of effects of acquired brain injury – Reasonable prospects of rehabilitation – Importance of general deterrence, specific deterrence, just punishment, denunciation and rehabilitation – Sentence of 27 years’ imprisonment with non-parole period of 22 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC with Mr N Hutton	Office of Public Prosecutions
For the Accused	Mr J Desmond	Emma Turnbull Lawyers

HIS HONOUR:

Overview

Harvey Spence was a small-time drug dealer. He came to believe that an associate, Nhan Ngoc (“Kevin”) Doan, may have informed police about his illegal drug activities.

On 6 January 2013, fixed with this suspicion, Mr Spence, on a pretext, drove Mr Doan, along with Peter Mitchell and Todi Muja, from Melbourne for several hours to a property in Johnsonville (which is near Bairnsdale). Along the way, Mr Spence called Mr Doan a “dog” and, during an early part of the journey, made him travel in the boot of the car.

After arriving at the property, which belonged to his associate “WR”, Mr Spence dragged Mr Doan into a shed and directed Mr Mitchell to bind his hands and gag him with tape. Mr Spence again called Mr Doan a dog. WR entered the shed. Concerned he might not be able to breathe properly, WR removed the tape from Mr Doan’s mouth. Mr Spence and Mr Mitchell immediately reapplied the tape. WR left and Mr Spence followed. Upon his return, Mr Spence had a rifle. He then persuaded Mr Muja, at the point of the gun, to place a plastic bag on Mr Doan’s head, but Mr Muja refused Mr Spence’s direction to pull the bag down and tie it around his neck. Mr Spence had Mr Mitchell do this instead, so that Mr Doan would suffocate to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Spence

Details

AGLC: R v Spence [2015] VSC 321
Case: [2015] VSC 321
Decision Date: 13 July 2015

CaseChat Overview and Summary

The case of R v Spence involved the sentencing of an individual convicted of murder. The victim, suspected by the accused of providing information to the police regarding the accused's illicit drug activities, was taken by the accused and others to a rural location under false pretenses. The accused instructed two co-accused to restrain the victim, gag him, and place a plastic bag over his head, resulting in his suffocation. Despite the accused's instructions, one of the co-accused refused to tie the plastic bag around the victim's head, leading to the victim's death. The court was required to determine an appropriate sentence considering the severity of the crime, the accused's lack of remorse, and the potential for rehabilitation.

The central legal issue for the court was to balance various sentencing objectives, including general deterrence, specific deterrence, denunciation, just punishment, and rehabilitation. The court also had to consider the accused's moderate reduction in moral culpability due to an acquired brain injury and the reasonable prospects of rehabilitation. The court needed to ensure that the sentence was proportionate to the gravity of the crime while also taking into account the accused's potential for rehabilitation.

The court acknowledged the heinous nature of the crime, noting the accused's premeditated actions and lack of remorse. However, it also recognised the accused's moderate reduction in moral culpability due to an acquired brain injury and the reasonable prospects of rehabilitation. After weighing all these factors, the court determined that the appropriate sentence was 27 years' imprisonment with a non-parole period of 22 years. This sentence aimed to achieve the objectives of general deterrence, specific deterrence, denunciation, just punishment, and rehabilitation while considering the accused's personal circumstances.

The final orders of the court were that the accused be sentenced to 27 years' imprisonment with a non-parole period of 22 years. This sentence was intended to address the severity of the crime, the accused's lack of remorse, and the potential for rehabilitation, while also fulfilling the broader objectives of the criminal justice system.

Orders