R v Wagner - [2019] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WAGNER
[2019] SASC 70
Judgment of The Honourable Justice Parker
9 May 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION TO REFRAIN FROM FIXING
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
This is an application for a non-parole period to be fixed under s 47(3) of the Sentencing Act 2017 (SA).
In 2003, the applicant was convicted of ten counts of murder. These are commonly referred to as the “bodies in the barrels” murders. Upon sentencing the applicant to life imprisonment on each count of murder, the trial judge declined to set a non-parole period. In 2019, the applicant now applies for the Court to fix a non-parole period.
The applicant submits that the setting of a non-parole period would assist his mental wellbeing, and hopefully allow him to spend his final years with his now adult son in the community. He further submits that the Court should take into account that he pleaded guilty to three of the 10 counts of murder of which he was convicted. The applicant also refers to the cases of several other notorious offenders where the Court fixed a non-parole period.
The respondent submits that the crimes committed by the applicant are so grave as to preclude the fixing of a non-parole period.
Held, dismissing the application:
1. The requirements of s 47(9) of the Sentencing Act are engaged after the Court has determined to fix a non-parole period (at [4]).
2. Each of the cases relied upon by the applicant are clearly distinguishable (at [32]-[76], [91]).
3. The ten murders, when considered in combination, amount to the worst possible type of offending (at [100]).
4. The lack of even a bare assertion of remorse from the applicant is consistent with the applicant being incapable of true rehabilitation (at [101]).
5. There is a need to take into account the community sense of justice when determining whether to fix a non-parole period (at [102]).
6. The requirements of justice, particularly considerations of punishment and general deterrence, mandate that a non-parole period should not be set (at [103]).
Sentencing Act 2017 (SA) ss 15, 47; Criminal Law (Sentencing) Act 1988 (SA) s 32; Correctional Services Act 1982 (SA); Statutes Amendment (Truth in Sentencing) Act 1994 (SA); Prisons Act 1936 (SA) s 42i; Criminal Law Amendment Act 1988 (WA); Offenders Probation and Parole Act 1963 (WA) s 40D, referred to.
R v von Einem (1985) 38 SASR 207; R v Miller (2000) 76 SASR 151; R v Vlassakis (Unreported sentencing remarks, Supreme Court of South Australia, Duggan J, 10 July 2002); DPP (Vic) v Gargasoulas [2019] VSC 87; R v Birnie (Unreported sentencing remarks, Supreme Court of Western Australia, Wallace J, 10 February 1987); R v Birnie (Unreported sentencing remarks, Supreme Court of Western Australia, Wallace J, 3 March 1987), distinguished.
R v Bunting and Wagner (2004) 92 SASR 146; R v von Einem [2009] SASC 247; R v Verdins (2007) 16 VR 269, considered.

R v WAGNER
[2019] SASC 70
Criminal: Application

PARKER J: This is an application for a non-parole period to be fixed under s 47(3) of the Sentencing Act 2017 (SA).[1] In 2003 the applicant was convicted of ten counts of murder. The trial judge, Martin J, declined to set a non-parole period. For the reasons that follow, I also decline to fix a non-parole period.
Relevant provisions of the Sentencing Act 2017 (SA)
[1] The application in fact refers to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA), which is virtually identical to s 47(3) of the Sentencing Act 2017. The Sentencing Act 2017 was in force at the time this application was filed.
Section 47(3) of the Sentencing Act provides as follows:
If a prisoner is serving a sentence of imprisonment but is not subject to an existing non‑parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or by the presiding member of the Parole Board.
Section 47(5)(e) of the Sentencing Act specifies the circumstances in which a court may decline to fix a non-parole period. It provides as follows:
(5) The above provisions are subject to the following qualifications:
…
(e) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i) the gravity of the offence or the circumstances surrounding the offence; or
(ii) the criminal record of the person; or
(iii) the behaviour of the person during any previous period of release on parole or conditional release; or
(iv) any other circumstance.
Section 47(9) of the Sentencing Act imposes certain requirements when a court fixes or extends a non-parole period. This provision is not presently relevant because the Court must first determine whether it should fix a non-parole period. Should the Court decide to fix a non-parole period, then the provisions of s 47(9) will be relevant.
The application
The applicant, Robert Joe Wagner, is not legally represented. He has personally prepared his application. He makes the following points:
·He is the father of a 21-year-old son. He has been in custody since his son was 18 months old and would very much like the chance to spend time with him in the community.
·He believes that the setting of a non-parole period would greatly assist his mental wellbeing. Even if the non-parole period was lengthy, the fact that a date had been set would be beneficial to him.
·He is willing to undergo a psychiatric evaluation or assessment should this be required.
·His behaviour in prison has been reasonably good. He is currently a “circle worker”. That is a trusted position. He is eager to continue with his good behaviour so that he can progress through the system. The setting of a non‑parole period would be beneficial in that respect.
·He has served almost 20 years in custody.
·He had pleaded guilty to three counts of murder.
·Other people in Australia who were convicted of very serious offences and sentenced to life imprisonment have had a non-parole period set.
Sentencing remarks
The applicant was sentenced by Martin J on 29 October 2003. He had pleaded guilty to three counts of murder and had been found guilty by a jury of an additional seven counts. His co‑accused, John Bunting, was sentenced at the same time after having been convicted by a jury of 11 counts of murder.
Martin J noted that s 32 of the Criminal Law (Sentencing) Act 1988 (SA) provided that a court may decline to fix a non-parole period if the court is of the opinion that it would be inappropriate to fix such a period because of the gravity of the offences or the circumstances surrounding the offences, the criminal record of the offender, the behaviour of the offender during any previous period of release on parole or by reason of any other circumstance. The Director of Public Prosecutions had submitted that because of the gravity of the offending by Bunting and the applicant, the Court should decline to fix a non-parole period.
Martin J noted that the applicant did not do well at school and had not learnt to read or write. He had attempted suicide at the age of eight years and was a regular truant from school when he was aged from about 13.5 to 14 years. At that time he developed a relationship with one of the victims of the murders, Barry Lane. When aged 14 the applicant had disappeared from home and his mother did not see him for about four years. He and Mr Lane lived in a homosexual relationship for some years. Martin J went on to describe in some detail the ten murders of which the applicant had been convicted. I will refer later to the essential features of that conduct.
After referring to the facts of the murders Martin J made the following observations:
[94]This bare summary of the facts of each crime provides only a limited overview of the circumstances surrounding your crimes and of the extent of the brutality and depravity involved. Your crimes were premeditated and many of them involved considerable planning and preparation. I am satisfied that both of you derived pleasure from the physical acts of killing and the violence and torture that preceded some of the killings. I am also satisfied that you derived pleasure from dismembering and defleshing some of the bodies. While there was an underlying theme of an intense hatred of persons perceived to be of homosexual orientations and persons who were seen by you to be paedophiles, you were also prepared to kill persons you thought might expose your criminal activity. It is not an exaggeration to say that by 1999 you were in the business of killing for pleasure. The Centrelink benefits of the deceased were, in your words Mr Bunting, the “icing on the cake”.
[95]Every unlawful killing diminishes our community. There is a direct impact upon the family and friends of the victims which has been vividly demonstrated by the victim impact statements presented to the court. There is also the wider impact upon our community generally which should not be underestimated. As a community we are disturbed and, at times, distressed by unlawful killings and other crimes which undermine our feelings of security and wellbeing as individuals and as members of the community. The impact of your crimes throughout our community has been obvious.
[96]It is difficult to envisage more serious total criminal conduct than the conduct in which together you have engaged. You were not affected by alcohol or other drugs. There are no mitigating circumstances. There has not been even a hint of contrition from either of you. I am satisfied that neither of you is contrite.
[97]Many words could be used to describe the horrific nature of your crimes and the surrounding circumstances, but I will not employ those extreme descriptions because in some perverse way, within the prison environment, you might seek to benefit from or glorify in those descriptions. What should be clearly understood is that your victims were defenceless. Your acts of violence and torture, and the killings, were cowardly.
[98]In considering whether to fix a non-parole period I must have regard to the facts of your crimes and associated circumstances and to the gravity of your total criminal conduct. I must also have regard to your personal circumstances and to any prospects of rehabilitation. It is notoriously difficult to assess future prospects and I recognise that experience with violent offenders has demonstrated that some persons, once considered to be incapable of rehabilitating, can, after a lengthy period of imprisonment, reform to the extent that with appropriate supervision and assistance they can be safely returned to the community. However, in respect of both of you, the evidence given at the trial has driven me to the conclusion that both of you are incapable of true rehabilitation.
[99]I agree with the remarks of judges in interstate courts that a sentence of life imprisonment with no possibility of parole is a dreadful sentence of the utmost severity. However, as the same judges observed, dreadful crimes may require dreadful punishment. Through its parliamentary representatives, the South Australian community has recognised the possibility that the gravity of crimes or circumstances surrounding crimes may require a court sentencing an offender to life imprisonment to decline to fix a non-parole period. In respect of both of you, I am firmly of the opinion that by reason of the gravity of your crimes and the circumstances surrounding your crimes, it would be inappropriate to fix a non-parole period.
[100]I must add this. The fact that I decline to fix a non-parole period does not mean that you are necessarily shut off from obtaining a non-parole period at some time in the future. The Sentencing Act currently provides that you may apply, at any time in the future, for the fixing of a non-parole period. The judge on such an application would have the power to fix a period or to decline to do so. In other words, I cannot make an order that you are never to be released. I cannot bind a judge if you should make an application in the future for the fixing of a non-parole period. However, I make it plain that I cannot envisage any circumstances which would justify the fixing of a non-parole period in the future for either of you. If I had the power to make an order that you are never to be released, I would unhesitatingly make that order.
[101]In respect of both of you, by order I decline to fix a non-parole period.
Community Impact Statement
Mr Noah Redmond appeared on behalf of the Commissioner for Victims’ Rights to read a community impact statement prepared under s 15 of the Sentencing Act.
The Commissioner stated that the “bodies in the barrels” murders have left an enduring impact on South Australia due to the recognition by the community of the horrific nature of the offences. The Commissioner also observed that by not pleading guilty to all ten murders, the applicant demonstrated a continued lack of contrition and little compassion or concern for the mental wellbeing of the victims’ families.[2] It had been necessary for the families to go through the Court process over an extended period, thus increasing their trauma.
[2] In fact he ultimately pleaded guilty to three murders.
The Commissioner also observed that the offences were planned and premeditated with no mitigating circumstances, there was no alcohol or drugs involved, and no contrition. The killing of ten defenceless people followed by systematic theft of their money while fooling their families was callous and cowardly.
The crimes have not only affected the families and friends of the victims but, due to the long investigation and horrific nature of the offences, followed by a year-long trial, first responders and others involved in bringing justice to the families have been negatively affected. Some still find it difficult to cope and they are also victims.
The murders, carried out over a protracted period, are a sad part of the criminal history of this State. The applicant was not given a non-parole period for good and valid reasons. The reasons were the gravity of the offending, the circumstances of the crimes and the lack of contrition. These considerations remain relevant.
Even though much time has passed, the victims are still suffering and their pain is still very real. The present application has been an extremely difficult process for the families of the victims and one that they never anticipated facing. The process has brought a renewed focus to their loss and grief. The families of the ten people murdered do not want to see a non-parole period fixed. They find it abhorrent that the applicant might be given an opportunity of release and a second chance to spend time with his loved ones when he has stolen those opportunities from them. While the refusal of the Court to set a non-parole period did not alleviate the pain of the victims, it went some way to acknowledge the horrific nature of the crimes and the depths of their suffering.
The Commissioner also observed that while the applicant has stated that the fixing of a non-parole period will assist his mental wellbeing, it will not help the mental wellbeing of those left suffering because of his actions. The Commissioner noted that some victims suffer unimaginable nightmares, some are unable to sleep, some have lost all motivation, some have post-traumatic stress disorder and require ongoing psychiatric care and will do so for the rest of their lives. Others find it impossible or difficult to trust anyone and do not have a normal circle of friends. Marriages have been destroyed as the result of the serious mental health issues caused by the crimes committed by the applicant. His crimes and the subsequent protracted trial have left an indelible mark on the victims. One victim has stated that they are unable to attend the Central Market because of its proximity to the courts and the dark memories that this evokes.
The Commissioner also stated that the victims are not only concerned for their individual wellbeing, but also for the safety of the community. They do not believe that the applicant has reformed or rehabilitated or demonstrated any remorse. A number of victims believe that he would kill again if he is released. They remain terrified of the applicant and live in fear that somehow, one day, if released, he would find them and hurt them. The victims fear for themselves, their families and society if he were ever to be released.
The applicant has stated that the fixing of a non-parole period would, even if lengthy, be beneficial for him. However, the Commissioner considers that the possibility of parole would re-traumatise the victims and be detrimental to their recovery. It would jeopardise their efforts to continue to rebuild their lives in the aftermath of the most horrific crimes this State has known.
For these reasons, the victims’ families strongly oppose the setting of a non-parole period. Although they acknowledge that any non-parole period is likely to be so lengthy that the applicant would never be released, it would be symbolic of a right to freedom to which he should not be entitled. The victims have at least some peace while the applicant and the other offenders are in gaol and they wish to be afforded the opportunity to live the rest of their lives that way. While there remains no chance that the applicant will be released, there is hope for the victims.
The applicant’s submissions
The applicant made brief submissions when the matter first came before the Court. He made some further submissions when the application was heard by the Court. As the applicant was unrepresented, I suggested that it may assist him if I heard the respondent first. Neither party opposed that course, so the hearing was conducted accordingly.
The applicant submitted that the setting of a non-parole period would help his mental wellbeing. He also wanted the Court to take into account that he had pleaded guilty to three of the ten counts of murder of which he had been convicted. He also stated that he had undertaken some programs in prison. He referred to a brief intervention program dealing with alcohol and other drugs and a brief anger management program. He also did a “whole” anger management program. However, it was hard for him to do other programs without a non‑parole period having been fixed. He had also undertaken some education in prison and had learnt to read and write. If he was released on parole he could undertake other programs.
The applicant asked rhetorically why the Department for Correctional Services (DCS) considers it appropriate for him to “babysit” a prisoner who may be mentally unwell or who may have tried to kill himself when people say that he was so bad that he should not have a non-parole period fixed.
The applicant also complained that DCS refuses to allow entry to a person who wishes to visit him and Bunting to provide them with assistance. He also complained that DCS would not allow him to receive some of his mail. He seemed to suggest that these issues might be overcome by the setting of a non‑parole period. I pointed out that the management of DCS had power under the Correctional Services Act 1982 (SA) to decide if a prisoner was to be allowed to receive visitors or mail. Whether or not the court had set a non-parole period was not relevant to the exercise by DCS of those statutory powers.

The applicant also stated that he hoped that the Court would set a non‑parole period that would allow him to spend his final years with his son.
The applicant stated that he would not suggest to the Court that he was sorry or felt remorse because the prosecution would allege that he was only saying these things so as to have a non-parole period fixed.
The applicant referred to the cases of several other notorious offenders where the Court had fixed a non-parole period. The cases were those of his co-accused James Spyridon Vlassakis and James William Miller, Bevan Spencer von Einem and James Gargasoulas. He also referred to a couple in Western Australia for whom he used the name, Burns. I am certain that the applicant actually intended to refer to David and Catherine Birnie. They were convicted of four murders and other offences in 1987. I have obtained their sentencing remarks from the Supreme Court of Western Australia and will discuss the relevance of their case at a later point.
The respondent’s submissions
Ms Carmen Matteo appeared for the Director of Public Prosecutions as respondent. She took the Court to the detailed description of the ten murders committed by the applicant as set out by Perry J in R v Bunting and Wagner.[3] That judgment considered an application for permission to appeal against conviction.
[3] (2004) 92 SASR 146.
In view of the details set out in R v Bunting and Wagner, it is not necessary to refer at length to the circumstances of each murder. However, I will refer later to particular aspects of the applicant’s conduct identified by Perry J and upon which Ms Matteo largely based the respondent’s submission that the Court should decline to fix a non-parole period.
The essence of the respondent’s submission is that the crimes committed by the applicant are so grave as to preclude the fixing of a non-parole period. Some of the individual murders involve crimes at the highest level of objective seriousness. When examined in combination, those crimes exceed what a court might define as the worst possible type of offending. The ten murders committed by the applicant involved planned killing and brutality on a scale never before seen in South Australia or in Australia.
The respondent further submits that while the applicant has been in custody since May 1999 when he was arrested, the passage of time has not diminished the gravity of his crimes. Furthermore, his conduct was such that the passage of time is unlikely to advance significantly his prospects for rehabilitation. In that respect Martin J found in 2003 that the applicant could not be rehabilitated based on the gravity of his offending.
The respondent also submits that the requirements of justice, particularly punishment and deterrence, indicate that a non-parole period should not be set. The punitive aspect of sentencing must feature heavily in circumstances where the offending involved not only planned multiple killings but also violent killings for pleasure and profit. The murders were followed by the foul treatment of bodies which went well beyond what might have been required to conceal the bodies.
Cases relied upon by the applicant
As I have noted, the applicant relies upon several cases where a non-parole period had been fixed even though the defendant had been convicted of multiple murders or those involving appalling treatment of victims. The apparent intention of his submission was that his case should be treated no differently and he was entitled to have a non-parole period fixed. For the reasons that follow, I consider that the cases relied upon by the applicant are readily distinguishable. Accordingly, these cases do not provide any basis to employ a parity argument or some similar notion.[4]
[4] Of course, any parity argument in the strict sense could only apply to the co-offender, Vlassakis.
Bevan Spencer Von Einem
Contrary to the belief of the applicant, Bevan Spencer von Einem has only been convicted of one murder. The suggestion by various writers and producers that von Einem was likely to have been involved in other murders is entirely irrelevant to the sentencing process. A court can only sentence a person for crimes of which they have been convicted.
Von Einem was found guilty by a jury of the murder of a 15 year old boy whom was abducted from a North Adelaide street in 1983. The boy’s body was found in a remote area of the Adelaide Hills seven weeks after his abduction. The scientific evidence established that the body had been dumped about a week before it was discovered and that the victim had died not more than two days before the dumping. Thus, it was apparent that the victim had been held captive for several weeks before his death. The victim had been sedated while held prisoner. A number of injuries were detected on his body. These included deep seated bruises inflicted up to two to three weeks before his death and head injuries, one of which had resulted in a subdural haematoma. There was also an injury to the anus caused by a hard blunt object which would have caused heavy bleeding.
The trial judge fixed von Einem’s non-parole period at 24 years. That term was fixed prior to the enactment of the Statutes Amendment (Truth in Sentencing) Act 1994 (SA). On appeal von Einem’s non-parole period was increased to 36 years.[5] Because the non-parole period of 36 years would have been subject to remissions, it cannot be directly compared with a non-parole period fixed after the revised approach to sentencing. After the Truth in Sentencing reforms, von Einem’s non‑parole period was adjusted to 24 years and 15 days.[6] While his non‑parole period would have expired more than a decade ago, von Einem remains in custody.
[5] R v von Einem (1985) 38 SASR 207.
[6] R v von Einem [2009] SASC 247 at [1] (Sulan J).
The Court of Criminal Appeal considered whether it was appropriate to set a non-parole period for von Einem. In 1985, s 42i of the Prisons Act 1936 (SA) provided that a sentencing court need not fix a non-parole period if there was special reason not to do so. The prosecution submitted that the nature of the crime committed by von Einem and the absence of indications favouring rehabilitation indicated that there was a special reason not to fix a non-parole period.
King CJ held that there may be cases in which the character or mental state of the prisoner rendered him such a danger to the community that release before the expiration of the head sentence would involve an unjustifiable risk to the public. However, King CJ did not consider that the circumstances, grave as they were, amounted to a special reason to refrain from fixing a non-parole period which would enable the release of von Einem on parole in his old age. His Honour did not consider that the protection of the community or the community sense of justice required an order which meant that von Einem would necessarily die in prison. The purposes of sentencing would be sufficiently met by a non-parole period which would hold out some prospect of release if von Einem lived to an advanced age.
Jacobs J noted the prosecution’s submission that the case was so vile and shocking that there were special reasons to decline to fix a non-parole period. Jacobs J also observed that it was obvious from the length of time the victim had been held captive before he was killed that one or more other persons were involved. Thus, the Court did not know the precise part, if any, that von Einem played in the mutilation and ultimate death of the victim. It was possible that he may only have been an accessory before the fact and it would be unsafe to impute to him direct responsibility for all or any of the more atrocious aspects of the crime. Jacobs J described von Einem’s crime as “one of the worst crimes in the annals of our law” and also a crime of a type that had caused consternation in the community. For those reasons he agreed with King CJ that the non-parole period should be fixed at 36 years.
Olsson J agreed with King CJ. His Honour noted that “[a]s a sole murder the accused’s crime has established new depths of depravity in South Australian history.” Olsson J also indicated that in his view the circumstances of the crime came very close to the borderline of constituting a special reason for declining to fix any non-parole period.
The fact that von Einem has been convicted of one murder and the applicant has been convicted of ten provides a proper basis to distinguish von Einem’s case. It is therefore unnecessary to undertake any comparison of the specific level of depravity displayed in the crimes committed by these two murderers.
James William Miller
James William Miller was convicted of six of the seven so called “Truro murders”.[7] At the time Miller was sentenced in 1980 the law did not provide for the fixing of a non-parole period for persons serving a sentence of life imprisonment. He applied in 2000 for a non-parole period to be fixed. That application came before Doyle CJ.[8]
[7] The only connection to the town of Truro was that it was the nearest town, albeit some distance, from the remote location where most of the bodies were dumped.
[8] R v Miller (2000) 76 SASR 151.
Doyle CJ accepted in R v Miller that Miller may not, himself, have inflicted violence upon any of the victims. Miller was found not guilty of the first of the seven murders but he was convicted of the six subsequent murders on the basis that he assisted his friend Christopher Worrell by acting as driver while Worrell picked up girls.[9] The girls were then driven to a remote location where they were murdered by Worrell. On each occasion Miller absented himself from the scene for a short period so as to enable Worrell to carry out the murders. Miller also assisted in the disposal of the victims’ bodies.
[9] Worrell was killed in a motor vehicle accident about two years before the bodies were discovered. The serial killings ceased upon the death of Worrell.
Miller was found to have engaged in a joint undertaking with Worrell that included murder if Worrell so chose. Miller furthered that joint undertaking by acting on the directions of Worrell and by leaving him with the victims at the crucial time. Doyle CJ accepted that the role of Miller was subordinate to that of Worrell. His Honour also accepted that Miller was in a dependent relationship with Worrell that made him Worrell’s willing assistant.
The Director of Public Prosecutions submitted that the Court should decline to fix a non-parole period for Miller. Doyle CJ held as follows:[10]
Murder is a grave crime, and the circumstances surrounding the murders in question do nothing to lessen its gravity. This is a case with multiple murders in appalling circumstances. However, Mr Miller’s role was the lesser role, and he did not inflict violence upon the victims. Grave as his crimes are, I do not consider that their gravity makes it inappropriate to fix a non-parole period, and thus to require him to serve the whole of his life in prison.
[10] (2000) 76 SASR 151 at 159 [35] (Doyle CJ).
Doyle CJ also stated:[11]
Were it not for the lesser role in the offences played by Mr Miller, I would have refused to set a non-parole period. The gravity of the offences and the community sense of justice would, in my opinion, have dictated that result had Mr Miller personally inflicted violence on the victims or caused their death. In my opinion it is only the subordinate role that he played that justifies my conclusion that I should not decline to fix a non‑parole period.
[11] Ibid at 160 [41] (Doyle CJ).
I consider that Miller’s circumstances are readily distinguishable from those of the applicant. As Doyle CJ observed, Miller played a lesser role in the six murders of which he was convicted. Miller did not inflict violence on the victims and nor did he directly cause their death. In contrast, while the role of the applicant may have been subordinate to that of Bunting to some degree, he nevertheless played a key role in ten murders. Certainly several of those murders, and probably all, were clearly pre-planned. The applicant was also responsible for the infliction of physical violence on victims and was a very active participant in extremely cruel acts of torture. He dismembered some of the bodies and was a key participant in their foul treatment. He also gained financially from some of the murders. These considerations leave no doubt in my mind that the offending of the applicant was substantially graver than that of Miller.
James Spyridon Vlassakis
Duggan J sentenced Vlassakis on 10 July 2002.[12] The Crown did not oppose the fixing of a non-parole period. Duggan J fixed the period at 26 years. His Honour stated that if it had not been for the plea of guilty by Vlassakis, his extensive co-operation with the police in the investigation of the murders and his undertaking to give evidence for the prosecution in the trial of the applicant and Bunting that was then forthcoming, he would have imposed a non-parole period of 42 years, i.e. the discount for the guilty pleas and co-operation was about 40%.
[12] R v Vlassakis (Unreported sentencing remarks, Supreme Court of South Australia, Duggan J, 10 July 2002).
Duggan J noted that as a result of the assistance given to the police and the undertaking to give evidence at trial, the confinement of Vlassakis was likely to be much more restrictive than would otherwise be the case. His Honour also noted that Vlassakis had shown an element of remorse since his arrest. I infer that his Honour’s reference to remorse was primarily based upon Vlassakis’ cooperation with the police and his willingness to give evidence for the Crown combined with his early guilty pleas.
There are a number of considerations referred to in the sentencing remarks for Vlassakis, in addition to the matters referred to in the preceding paragraph, which serve to explain why his Honour was prepared to accept the submission by the Crown that a non-parole period should be fixed. Vlassakis was not involved in the murders that occurred between July 1992 and April 1998. However, he was involved in four of the five subsequent killings that occurred between August or September 1998 and May 1999. Vlassakis was aged 18 years at the time he participated in the first three murders and 19 at the time of the fourth. He had no relevant prior convictions.
Expert psychological reports indicated that Vlassakis had an immature and dependent personality. His mother was in a relationship with Bunting and, in the words of Duggan J, he became “besotted by Mr Bunting” and “he became somewhat of a hero to [Vlassakis]”. It was suggested in sentencing submissions that Bunting had become a father figure to Vlassakis. I also note that before Vlassakis was co-opted by Bunting to join in the murders his mother, Elizabeth Harvey, admitted to him that she had been involved in one of the earlier murders.[13]
[13] I understand that Ms Harvey died of natural causes and thereby avoided prosecution.
After being shown several of the bodies by Bunting, and told by his mother of her involvement, Vlassakis participated in four murders. While Vlassakis had not known in advance that his half-brother, Troy Youde, was to be murdered, he actively participated with Bunting and the applicant in the killing. Vlassakis took over from the applicant the strangling of Youde so as to speed up his death. However, it was the applicant who ultimately killed Youde by strangulation. After the death of his half-brother, Vlassakis continued to claim his Centrelink benefits and used the money to buy amphetamines.
Vlassakis had participated in tricking the victim Frederick Brooks into being handcuffed. He knew that Bunting and the applicant intended to murder Mr Brooks. Vlassakis was present when Mr Brooks was tortured over a period of several hours. Vlassakis stated that although he was present he did not participate in the torture beyond punching the victim and stubbing out a cigarette on him. After the death of Mr Brooks, Vlassakis took action to ensure the continuation of his Centrelink payments. Those payments were given to another offender, Mark Haydon.[14] Vlassakis impersonated Mr Brooks when he attended a medical practitioner and at Centrelink.
[14] Haydon was convicted of assisting in the disposal of the bodies and sentenced to a lengthy period of imprisonment.
Vlassakis had an important role in the murder of Gary O’Dwyer in that he introduced him to the applicant and Bunting and made inquiries about him at the behest of Bunting. While Vlassakis participated to some extent in the assault and torture of Mr O’Dwyer, he denied that he was present when he was killed.
Vlassakis also had a central role in the murder of his step-brother, David Johnson, the last of the victims. He knew in advance that Mr Johnson was to be killed and to that end lured him to Snowtown under a pretext. Vlassakis was present during the initial assault on Mr Johnson by Bunting. After Mr Johnson disclosed his PIN code, Vlassakis and the applicant travelled to Port Wakefield to see whether the PIN was correct. By the time Vlassakis and the applicant had returned to Snowtown, Mr Johnson had been strangled by Bunting. Vlassakis and the applicant took Mr Johnson’s body to the Snowtown bank vault where the applicant commenced to cut up the body.
Vlassakis told stories so as to explain the disappearance of Mr Johnson and lodged a claim for Centrelink benefits in his name. Vlassakis also went with the applicant to Mr Johnson’s home to take his clothes and other personal belongings. Vlassakis also withdrew some $400 from Mr Johnson’s bank account and used this sum to purchase a car.
I consider that the decision by Duggan J to set a non-parole period for Vlassakis can readily be distinguished from the circumstances of the applicant on a number of grounds.
First, Vlassakis pleaded guilty to all four murders in which he had participated whereas the applicant had entered a plea for only three of the ten murders of which he was convicted.
Secondly, on my reading of the sentencing remarks published by Duggan J, it appears that although Vlassakis had an important role in some of the killings (e.g. his action in luring Mr Johnson to Snowtown and effecting the introduction to Mr O’Dwyer) his role was always subsidiary to that of Bunting and the applicant. Moreover, his involvement in the torture was far less significant than that of Bunting and the applicant.
Thirdly, Duggan J accepted that Vlassakis showed remorse for the killings.
Fourthly, at least to some extent, the involvement of Vlassakis could be explained by his youth and the dependent relationship he had with Bunting (who was in a relationship with his mother). The psychological reports indicated the particular vulnerability of Vlassakis to the malign influence of Bunting. His mother’s admitted role in one of the murders seems also to have played a part in him joining the later stages of the killing spree.
Finally, and most importantly, Vlassakis actively assisted the police and prosecution. His evidence undoubtedly played a key role in the conviction of Bunting and the applicant.
For these reasons the circumstances of Vlassakis’ case are clearly distinguishable. I therefore do not consider that any parity issue arises so as to suggest that the applicant should be granted a non-parole period.
James Gargasoulas
In late 2018, James Gargasoulas was found guilty by a jury in the Supreme Court of Victoria of six counts of murder and 27 counts of reckless conduct endangering life. Those charges arose from his action in January 2017 in driving at high speed at lunchtime through pedestrians in the Burke Street Mall and other nearby streets in the Melbourne CBD. The Mall was crowded and Gargasoulas accelerated his car so as to mow down pedestrians. When these crimes were committed, Gargasoulas was suffering from a drug induced psychosis. Much of his behaviour in the period leading up to this incident had been erratic and bizarre.

Gargasoulas was sentenced by Weinberg JA on 22 February 2019.[15] Counsel for Gargasoulas submitted that because of his state of mind at the time he committed the offences his moral culpability was reduced and thus a non-parole period should be fixed.
[15] DPP (Vic) v Gargasoulas [2019] VSC 87.
Weinberg JA noted that the sheer gravity of the offending by Gargasoulas and the devastating consequences of his actions would ordinarily require a complete denial of eligibility for parole.
Weinberg JA indicated that a complicating factor in sentencing Gargasoulas was that he now had been diagnosed with paranoid schizophrenia as distinct from the drug induced psychosis that was present due to his taking of methamphetamine prior to committing the crimes.[16] His psychotic condition was unlikely to improve in the foreseeable future. The fact that Gargasoulas needed to be held in virtual solitary confinement and could not receive appropriate treatment may exacerbate his condition. The Crown conceded that this consideration should be taken in to account in support of fixing a non-parole period.
[16] Of itself, a drug induced psychosis does not remove criminal liability in Victoria: ibid at [59] (Weinberg JA) (or in South Australia). Gargasoulas stood trial after a preliminary hearing concerning his mental state and the availability of the defence of mental impairment: ibid at [57] (Weinberg JA).
Weinberg JA referred to the decision of the Victorian Court of Appeal in R v Verdins.[17] The Court of Appeal held in Verdins that impaired mental functioning, whether temporary or permanent, could be relevant to sentencing in a number of different ways. Of those considerations, Weinberg JA noted that the existence of impaired mental functioning at the time of sentence may cause a given sentence to weigh more heavily on an offender than it would on a person in normal health. His Honour also noted that if there is a serious risk that imprisonment will have a significant adverse effect on an offender’s mental health, this will tend to mitigate punishment. The Crown had expressly or implicitly accepted the relevance of those two principles but nevertheless opposed the fixing of a non-parole period.
[17] (2007) 16 VR 269.
Weinberg JA also held that the mental state of Gargasoulas at the time of the offending could not, to any significant extent, constitute a mitigating factor through a lessening of his moral culpability. It was necessary for the sentence to “send a message, loudly and clearly” that the influence of drugs such as ice on persons who commit violent offences will not be regarded as a basis for leniency.
Weinberg JA examined at considerable length the factors for and against the fixing of a non-parole period for Gargasoulas. His Honour ultimately concluded that he should fix a non-parole period of 46 years. He stated that the main factor in support of fixing a non-parole period was “the exceptional feature arising out of your present mental condition” and his problematic prognosis. His Honour also indicated that he had taken into account the relative youth of Gargasoulas and the possibility that he would spend, perhaps, 60 years in prison in the absence of a non-parole period.[18] However, it is quite apparent from the sentencing remarks, that age was only a minor consideration in the decision by Weinberg JA to set a non-parole period.
[18] He was aged 29 years when sentenced.
The crimes committed by Gargasoulas were truly appalling and their effects upon many of his victims were devastating. It is quite clear from the sentencing remarks of Weinberg JA that the only reason his Honour fixed a non-parole period was the very serious psychiatric illness now suffered by Gargasoulas and his apparently poor prognosis in a prison environment. There is no suggestion that such considerations are in any way relevant to the applicant. I therefore regard Gargasoulas as being clearly distinguishable from the applicant’s case.
David John Birnie and Catherine Margaret Birnie
I have obtained the sentencing remarks for David John Birnie and Catherine Margaret Birnie from the Supreme Court of Western Australia.[19] In 1987 they both pleaded guilty to four counts of wilful murder, one count of aggravated sexual assault and one count of deprivation of liberty. The defendants did not dispute the prosecution allegation that the four murder victims had been unlawfully detained for varying periods up to several days, raped on multiple occasions and their bodies mutilated. The fifth victim had managed to escape her unlawful detention after she had been raped.
[19] R v Birnie (Unreported sentencing remarks, Supreme Court of Western Australia, Wallace J, 10 February 1987); R v Birnie (Unreported sentencing remarks, Supreme Court of Western Australia, Wallace J, 3 March 1987).
A psychiatric report showed that Catherine Birnie was emotionally unstable and under the influence of her partner to a degree not previously seen by the reporting psychiatrist in over 30 years of practice. Her only motive in committing the crimes was her need to satisfy the sexual desires of her partner. Nevertheless, the psychiatric reports indicated that she was fit to plead. David Birnie’s only motive was his sexual gratification.
The sentencing judge, Wallace J, stated when sentencing David Birnie, “[e]ach of these horrible crimes was premeditated; planned and carried out cruelly, relentlessly, over a comparatively short period.” His Honour also made similar remarks when sentencing Catherine Birnie.
Wallace J held in each case that the only appropriate punishment was strict security life imprisonment. His Honour stated that, in his opinion, the two offenders should never be released from prison.
A report by the Law Reform Commission of Western Australia entitled “Review of the Law of Homicide: Final Report” states that the only sentences available for the offence of wilful murder are life imprisonment or strict security life imprisonment.[20] At the time that David Birnie and Catherine Birnie were sentenced, the Supreme Court had no role in determining the minimum period to be served before the prisoner became eligible for parole.[21] The minimum period was set by legislation.
[20] Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Project 97 (2007) at 301.
[21] This changed shortly after David Birnie and Catherine Birnie were sentenced, with the enactment of the Criminal Law Amendment Act 1988 (WA), which inserted s 40D(2a) of the Offenders Probation and Parole Act 1963 (WA). This empowered the Court, upon imposing a sentence of strict security life imprisonment, to order that the person is not to be eligible for parole.
Because the Supreme Court had no role in setting a non-parole period for David Birnie and Catherine Birnie, their case provides no assistance to the applicant. However, the statement by Wallace J that he did not consider that they should ever be released from prison provides a clear indication that if the option had been available to his Honour he would have declined to fix a non-parole period.
The conduct of the applicant
A significant feature in several of the murders was the desire of Bunting and the applicant to obtain access to the ongoing Centrelink payments received by the victim and to obtain possession of their personal property. Several of the victims were cruelly tortured so as to force them to disclose details, such as a PIN code, that would enable the killers to deal with Centrelink in the name of the victim and gain access to their bank accounts. Thus, for example, in the case of the victim Barry Lane, the applicant withdrew $15,400 by way of Centrelink benefits from his account.
The evidence given by James Vlassakis at the trial referred to the torture of several of the victims before their death. That evidence was consistent with the forensic examination of the bodies which revealed burns from cigarettes and lighters, electrical burns, beating and the crushing by pliers of toes and knuckles. Vlassakis gave evidence that a Variac machine had been used to pass currents through the victims’ bodies. The electrical wires were attached to the victims by alligator clips.
The applicant described the torture of the victim, Barry Lane, to Vlassakis in an excited fashion and referred to apparent differences in the level of pain depending upon whether the toe nail or the knuckle of the toe was squeezed.
The murders displayed interlinked motives. In some cases the primary motive appears to have been the mutual hatred held by the applicant and his friend Bunting for persons whom they characterised as homosexuals or paedophiles, whether accurately or not. In that respect the applicant and Bunting were effectively acting as vigilantes.
Some of the murders seem to have been motivated by, at least in part, personal dislike held by the applicant or Bunting for the victim. A desire to cover up earlier murders was also apparent in some cases where the victim may have had knowledge that could incriminate the perpetrators.
The evidence of Vlassakis established that Bunting and the applicant had openly displayed their enjoyment in killing. They boasted about the details of some of the deaths and joked about one of the victims “rotting nicely” in a barrel.
I will refer in greater detail to three of the murders committed by the applicant as they best illustrate the level of depravity and cruelty shown by the applicant (and Bunting). This level of detail is only available because of the evidence given by Vlassakis about the murders of Frederick Brooks, Troy Youde and Gary O’Dwyer. He had pleaded guilty to those three murders and also that of his step-brother, David Johnson.
The murder of Frederick Brooks was the most atrocious of all the murders for its sheer cruelty. However, similar conduct also occurred in the murders of Troy Youde and Gary O’Dwyer.
Murder of Frederick Brooks
Mr Brooks was aged 17 years when he was killed. The evidence of Vlassakis disclosed that the applicant placed handcuffs on the victim, initially as part of an apparent game. Upon a signal from Bunting, Mr Brooks was grabbed from behind by the applicant who commenced to choke him. Bunting told the applicant to let the victim go although that intervention was apparently intended to allow more time for the actions which followed.
Mr Brooks was placed in a bath tub while awake and fully aware of what was being done to him. He was subjected to acts of extreme cruelty for the apparent amusement of the applicant and Bunting. They punched Mr Brooks in the testicles. Electrical leads were attached to his genitals and a Variac machine was used to pass electricity through him. The applicant inserted burning cigarette butts into Mr Brooks’ nose and ears and also applied a cigarette lighter to his forehead and other parts of his body. Mr Brooks’ knuckles and toenails were squeezed with pliers. Sparklers were inserted into the eye of his penis and one was set alight. Water was also injected into his testicles with syringes by Bunting and the applicant. He was violently and repeatedly struck with a jack handle to the shoulder area.
Mr Brooks was coerced through torture to disclose his mobile telephone number and bank PIN code. He was recorded reciting specific phrases at the direction of his assailants. That recording was later used to deter inquiries by being transferred onto Mr Brooks’ telephone message bank.
Particular music was played during the assault and torture. The music referred to hatred of paedophiles. Mr Brooks was compelled to refer to his abusers by deferential names. Thus, Bunting was required to be called “Master” and the applicant, “God”. The names of the previous victims were recited before Mr Brooks was killed. Although Vlassakis claimed not to remember how Mr Brooks was killed, as with most of the victims, a large gag was placed in his mouth and held in place with tape.
Murder of Troy Youde
The evidence given by Vlassakis about the torture and killing of his half brother, Troy Youde, was generally similar to that he gave about the murder of Frederick Brooks. After information was extracted from Mr Youde under torture, a rolled up sock was put in his mouth and held in place with tape. The applicant then commenced to strangle Mr Youde with a rope. Bunting and the applicant laughed when the rope broke. The applicant stood on the chest of Mr Youde so as to expel air from his lungs and to ensure that he was dead. Bunting and the applicant dismembered the body of Mr Youde. Both legs were severed at the knees and his thighs were largely defleshed. A number of deep cuts were made in the skin and muscle over the front of the abdomen.
Murder of Gary O’Dwyer
Gary O’Dwyer had no connection with Bunting or the applicant. He was intellectually disabled and suffered a physical disability due to an accident. He frequented the streets of Murray Bridge and lived near Vlassakis. Bunting enlisted Vlassakis to find out whether Mr O’Dwyer received a pension. Upon it being confirmed that he received a pension and lived alone, Bunting asked Vlassakis to introduce him and the applicant to Mr O’Dwyer. The three killers visited Mr O’Dwyer in his home where he was given alcohol. The applicant then grabbed him from behind without warning and handcuffs were applied. He was struck about the head and made to call those present by deferential names. The Variac machine was used to torture Mr O’Dwyer. The post-mortem showed use of alligator clips and electrical burns. His voice was recorded in a similar way to that of Mr Brooks and Mr Youde. It is not clear how Mr O’Dwyer was ultimately killed.
Consideration
For the reasons I have already given, I regard each of the cases relied upon by the applicant (i.e. Von Einem, Miller, Vlassakis, Gargasoulas and Birnie) as being clearly distinguishable. Those cases provide no assistance to his application. In fact, for the reasons that follow, the observations made by Doyle CJ in Miller support the respondent’s position that a non-parole period should not be fixed.
Doyle CJ stated in Miller that, but for the fact that Miller had not personally inflicted violence on the six victims or caused their death and had played only a subordinate role in the crimes, he would have been required by the gravity of the offences and the community sense of justice to decline to fix a non‑parole period.
I respectfully agree with the reasoning of Doyle CJ in Miller. While both Miller and the applicant were convicted of a series of murders committed in company, the circumstances of the applicant’s crimes and the nature of his involvement in the criminal enterprise were very different to those of Miller. Thus, a different outcome is required.
While the evidence suggests that Bunting was the prime motivator, the willing involvement of the applicant went far beyond the subordinate role played by Miller in the crimes he committed with Worrell.
In contrast to Miller, the applicant used his physical strength to overpower victims and then personally applied extreme violence to, and inflicted appalling torture upon, at least several of the ten victims of whose murders he was convicted. Martin J observed that the killings were cowardly and the victims defenceless. The applicant showed pleasure in inflicting pain and boasted and joked about his involvement in some of the killings.
The applicant also personally dismembered several of the victims after death and treated the bodies with an appalling lack of respect and dignity. As the respondent has submitted, that foul treatment went well beyond what might have been required to conceal the crimes.
Most, if not all, of the murders committed by the applicant were pre-planned. In fact, Martin J observed in his sentencing remarks that many of the killings involved considerable planning and preparation. The applicant financially benefitted from some of the murders, while his associates also gained money and property from several of the killings committed by the applicant.
The playing of the particular music during the torture sessions, the forcing of the victims to refer to the perpetrators by deferential names and the listing of past victims, all point to a ritualistic element in the killings. That aspect of the crimes may possibly be linked to the vigilante motive apparent in the behaviour of the applicant and Bunting. However, as the respondent has stressed, their motives clearly went beyond vigilantism and the associated perverse and perverted ritualism.
In that respect, the use of torture to obtain financial information and the inquiries made through Vlassakis to establish whether monetary gain could be made by killing Gary O’Dwyer, support the submission made by the prosecution at trial that Bunting and the applicant were in “the business of killing”.
The brutal torture inflicted by the applicant and Bunting immediately prior to the murders of Frederick Brooks, Troy Youde and Gary O’Dwyer displayed an extreme level of depravity. For that reason, I agree with the respondent’s submission that those three murders constituted crimes at the highest level of objective seriousness. I also agree with the respondent’s submission that the ten murders, when considered in combination, amount to the worst possible type of offending. I firmly consider that the “bodies in the barrels” murders are the worst crimes ever to be detected in South Australia. None of the murders committed by the applicant displayed any mitigating features. The applicant is plainly a hardened killer.
The applicant expressly declined to assert that he was remorseful for his appalling actions, on the basis that he would be accused of lying to support the fixing of a non-parole period. The lack of even a bare assertion of remorse is consistent with the observation of Martin J that the applicant is incapable of true rehabilitation.
The Commissioner for Victims’ Rights has referred to the ongoing detrimental effect of the murders upon the families of the victims, the first responders and the community generally. The matters referred to by the Commissioner serve to highlight the need to take into account, as Doyle CJ observed in Miller, the community sense of justice.
For the reasons set out at [94] to [102], I agree with the respondent’s submission that the requirements of justice, particularly considerations of punishment and general deterrence, mandate that a non-parole period should not be set. The punitive aspect of sentencing weighs very heavily in circumstances where the applicant engaged in ten planned killings, some involving appalling torture and later mutilation of bodies, motivated by a mixture of pleasure, profit, personal dislike, vigilantism and the avoidance of discovery.
Conclusion
I dismiss the application.