R v Walker, De Bono & Conci
[2003] VSC 155
•12 March 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1422 of 2002
| THE QUEEN |
| V |
| STEPHEN JAMES WALKER, DENNIS JOHN DE BONO, MICHAEL THOMAS CONCI |
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JUDGE: | REDLICH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 February 2003 | |
DATE OF SENTENCE: | 12 March 2003 | |
CASE MAY BE CITED AS: | R -v- Walker, De Bono and Conci | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 155 | |
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CRIMINAL LAW - Sentencing – Dispute as to mitigating and aggravating circumstances – Onus – Whether aggravating circumstances can include commission of a discrete and serious offence - When false assertions of fact on plea affect remorse.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan S.C. | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For Accused Stephen Walker | Mr G. Lyon | Randles Cooper & Co Pty Ltd |
| For Accused Dennis De Bono | Mr J. Montgomery | Victoria Legal Aid |
| For Accused Michael Conci | Ms J. Sutherland | Slades & Parsons |
HIS HONOUR:
The Director of Public Prosecutions originally presented Dennis John De Bono, Stephen James Walker and Michael Thomas Conci on a count that they at Yarraville in the State of Victoria on 5 June 2001 murdered Edward Joseph Gutkowski. The Director further presented each of the accused on a count that on 6 June 2001 they intentionally and without lawful excuse damaged by fire a bungalow situated at 79 Ovens Street, Yarraville belonging to Edward Joseph Gutkowski. On 7 February 2003, the Director filed over the existing presentment with a new presentment. On arraignment Stephen James Walker pleaded guilty to the murder at Yarraville on 5 June 2001 of Edward Joseph Gutkowski. Dennis John De Bono pleaded guilty to the manslaughter on 5 June 2001 at Yarraville of Edward Joseph Gutkowski. Michael Thomas Conci pleaded guilty to one count of impeding the apprehension, prosecution, conviction or punishment of Stephen James Walker on or about 5 June 2001 knowing or believing that he had committed the crime of murder. The new presentment contained no count of arson. The Crown indicated in each of the cases of Mr Walker and Mr De Bono, that it intended to rely upon the arson as a circumstance aggravating the offences to which they had pleaded guilty.
Prior to the commencement of the pleas the learned prosecutor referred me to a brief summary of the facts which he understood to be the subject of agreement. As the pleas progressed it became apparent that beyond an admission as to the elements of the offence established by each offender by their plea of guilty, critical facts were the subject of dispute and the evidence upon which to resolve such issues was very limited. The pleas on behalf of each of the offenders and submissions by the parties occupied five sitting days.
As the Crown relies upon the same evidence in the cases of Mr Walker and Mr De Bono, it is convenient if I set out my findings of facts which are common to both of them. In the course of doing so, I shall deal with the legal and factual issues which were raised on the pleas by various parties.
The facts common to Mr Walker and Mr De Bono
The deceased, Edward Gutkowski was 34 years of age at the time of his death. He lived alone in a bungalow at the back of his mother's house at 79 Ovens Street, Yarraville. His mother and nephew lived in the house at the front of the property, the bungalow being separated from the house by a walkway. The deceased was unemployed and although on a methadone program, he was a regular user of heroin and a dealer in heroin on a small scale. He would make purchases of heroin from his dealer, cut the heroin down and sell foils of heroin to his associates. In this way, he was able to finance his own habit.
When the deceased required heroin, he would ring up his supplier who would come to the back gate of the Ovens Street property and provide the deceased with the heroin. The deceased would then cut up the purchase and sell smaller quantities to associates who would come to the back gate of the Ovens Street property and rap on the back gate. The deceased supplied only a limited number of people in the area as he was anxious to retain his anonymity and to avoid becoming known as a drug-trafficker. He supplied Mr De Bono and Mr Walker on an irregular basis with small quantities of heroin. Some time prior to 5 June 2001, Mr Walker and Ms Angela Grozdanovski (girlfriend of Mr Walker) had gone around to the deceased's bungalow with the intention of purchasing drugs. Some disagreement developed between them and it appears that there may have been an abusive exchange between the deceased and Ms Grozdanovski. One of the concerns of the deceased appears to have been that Mr Walker and Mr De Bono were letting other people know that drugs could be obtained from his property. Following this disagreement, there was a degree of ill-feeling between the deceased, Mr Walker and Ms Grozdanovski.
At about midday on 5 June 2001 the deceased went to Unit 5, 57 Fehan Street, Yarraville which was only a block away from his own home. Mr De Bono rented Unit 5 and Mr Walker, Ms Grozdanovski and Mr Conci all lived in Unit 5.
This visit to Unit 5 was to collect $50 from Mr Walker for heroin purchased a few days earlier. Mr Walker was not at home at that time. The deceased was told to come back at 10 o'clock that evening when Mr Walker would be at home.
Early that evening Mr Walker and Mr De Bono went around to Mr Gutkowski's bungalow intending to purchase more heroin from him. They came to the back gate and after placing an order with the deceased for more heroin. They then left. Mr Gutkowski arranged for his supplier to bring further heroin to his bungalow. Within a short time the heroin was delivered and the deceased made up a number of foils of heroin to take to Fehan Street to give to Mr Walker and Mr De Bono. He left his bungalow with the heroin and walked to Fehan Street.
The deceased was armed when he went to the house to sell drugs
It was not disputed on the plea that the deceased carried a weapon with him to the Fehan Street premises. There was a dispute as to what that weapon was. Mr Walker on his plea relied upon what he had said to Mr De Bono in the cells following their arrest on 13 June 2001. These conversations were tape-recorded and I shall need to refer to them in relation to a number of issues. At various times in those conversations reference was made to a wrench, flick knife or crowbar as the weapons which the deceased was carrying.[1] These conversations reveal that Mr Walker and Mr De Bono were by this time aware of the fact that the police knew that the crowbar was the weapon which had been used to kill the deceased. Mr Walker and Mr De Bono discussed the explanation that they should proffer for how they came to have possession of the crowbar. I am satisfied that the weapon that Mr Gutkowski carried with him was a small tomahawk which he was observed to place down the front of his track suit pants before leaving home. The tomahawk was visible to Mr Walker and Mr De Bono when they spoke with the deceased in the hallway of Unit 5 immediately before the deceased was killed.
[1]Transcript of conversations at pp. 545, 549, 558-9, 581, 605, 615, 630 and 680-2.
It appears that on previous occasions when the deceased had gone to Mr De Bono's home he had taken some weapon with him for protection. The previous week when he had gone to Fehan Street to collect money that he was owed he had gesticulated with the weapon by pretending to hit himself on the head to emphasise that he would not tolerate any procrastination or prevarication from Mr Walker and Mr De Bono.
The Crown accepted that the deceased when dealing with Mr Walker and Mr De Bono on previous occasions, had carried a weapon with him and had demonstrated that he would use violence, if necessary, to protect himself. The deceased had given a description of these events to associates. The conversations between Mr Walker and Mr De Bono which were recorded show that they were mindful of these earlier incidents.
The crime was not premeditated
I was advised at the commencement of the plea that the Crown accepts that the offences to which Mr Walker and Mr De Bono respectively pleaded guilty were not premeditated and I accept that their conduct should be viewed as a spontaneous reaction to the situation that arose at the time that the deceased delivered drugs to their premises.
Shortly after 9.30 pm Mr Gutkowski arrived at Unit 5, Fehan Street and was met at the door by Mr Walker and Mr De Bono. The property, 57 Fehan Street, comprises a small weatherboard house at the front of the block which is divided into two units, Units 4 and 5. Behind the weatherboard house are five brick units running down the length of the block and there is a common laundry. There is a dispute as to what occurred in the hallway of Unit 5 and there is inadequate evidence to permit a determination as to precisely what did occur. The deceased wanted payment of the $50 owed for the previous heroin purchase and he referred to Ms Grozdanovski in crude terms. The occupants of Unit 4, the other half of the front of the weatherboard house, overheard a voice saying "Give me the fucking deal you cunt or I'll kill you" or words to that effect and they also heard someone yell, "You've brought a weapon here have you?" The occupants of Unit 4 then heard a terrific noise coming from Unit 5. They heard swearing and shouting and crashing noises and they thought that someone was going to end up coming through the wall. During this time Mr Walker struck the deceased over the head a number of times and killed him. The noise they thought went on for some 10 to 15 minutes before there was silence.
A dispute in the hallway including demands and insults
It was not disputed on the plea that the deceased had come to sell Mr Walker and Mr De Bono three foils of heroin and to collect payment for a previous sale of heroin, nor was it disputed that Mr Walker and Mr De Bono, while being ready to pay for the three foils of heroin did not have the money for the previous purchase. This much is evident from the conversations recorded between Mr Walker and Mr De Bono in the cells. Those conversations also reveal that the deceased insulted Mr Walker's girlfriend and this upset Mr Walker.[2] The Crown did not dispute this fact. Mr Walker, Mr De Bono or Mr Conci was overheard to say, "Give us the deal or I'll kill you" and one of them also made the observation about the weapon which the deceased was carrying. It was submitted on Mr Walker's behalf on the plea that I should regard it as possible that it was the victim who uttered the threat and was referring to the money that he was owed. Such an explanation is fanciful particularly in light of the evidence of the occupant of Unit 4 who said, with some reservation, that it was the voice of the same person that had issued the threat and observed the weapon.
[2]Transcript of conversations at pp. 544, 624.
Who initiated the violence?
Mr Walker, through his counsel, contended that the recorded conversations between Mr De Bono and himself demonstrated that it was the deceased who precipitated the violent confrontation.[3] The learned prosecutor, in my view, correctly described much of that part of the conversation as an attempt by Mr Walker and Mr De Bono to falsely construct a claim of self-defence and I cannot rely upon those descriptions as to what occurred. In the course of those conversations, Mr Walker repeatedly gave a detailed description of how Mr Conci initiated the violence by emerging from the bedroom and stabbing the deceased in the neck.[4] Mr Conci may well have done so. It was apparent that Mr Walker had some animus towards Mr Conci at this time because he believed that Mr Conci had made some advances towards his girlfriend after Mr Walker was arrested. Mr Walker in the course of his plea disavowed this description of Mr Conci's role, but the disavowal is less than persuasive. After careful consideration of the recorded conversations and the limited circumstantial evidence that is available, I am unable to draw any conclusion as to how the violence in the hallway commenced although I accept that the deceased made some derogatory remark about Ms Grozdanovski.
[3]Transcript of conversations at pp. 541, 544, 546, 549 551, 555, 558, 580-1, 615, 630, 634-5, 639, 641, 644, 661, 663, 675, 677, 684, 686 and 707.
[4]Transcript of conversations at pp. 548, 556-7, 595, 612, 616, 621-2, 624, 641 and 656-7.
A pinchbar with the deceased's blood on it was found by police hidden under carpet in the Fehan Street flats’ communal laundry. The pinchbar came from Unit 1 at Fehan Street and was the weapon used by Mr Walker to kill the deceased. Blood spatter near the bathroom at one end of the hallway of Unit 5 shows that Mr Gutkowski was attacked there, the origin of that blood spatter being near floor level. A number of long gouge-marks were found on the walls of the hallway and also on the front security door. There was blood in other areas of the hallway and flesh from the deceased was found on the front security door and inside the bathroom door.
The only evidence available to the Crown to cast any further light on what occurred in the hallway was the conversations which took place between Mr De Bono and Mr Walker whilst they were together in the cells. The conversations have limited evidentiary value because it is conceded by all parties that not everything that was said by them during those conversations was true. At different stages of the conversation, which is a lengthy one, Mr Walker and Mr De Bono are heard discussing how they can construct a claim of self-defence.
It was maintained on Mr Walker's plea that the events in the hallway were as he had described them to Mr Bernard Healey, clinical psychologist, in a report dated 8 February 2003 which was tendered. Mr Walker maintained that the deceased had attended the premises at Fehan Street 4 or 5 days prior to 5 June 2001 demanding payment for an earlier heroin purchase. On that occasion, the deceased had threatened Mr Walker and had tapped himself on the head with a tomahawk that he was carrying, telling Mr Walker that he was not afraid of him. Mr Walker claimed that on the day of his death, the deceased came to the Fehan Street premises carrying the crowbar and three $50 "deals" of heroin. He said that the deceased swung the crowbar at him and that he disarmed the deceased and then hit the deceased on the head with the crowbar and then again as the deceased fell to the ground. The deceased did not bring the crowbar to the Fehan Street flat. It is a crowbar which was identified by the occupier of Unit 1 as belonging to him. The deceased was not in possession of a crowbar when last observed by his visitors when he departed for the Fehan Street flat. The tape-recorded conversations between Mr Walker and Mr De Bono supports the view that the deceased did not bring the crowbar to Fehan Street.
In determining what facts I should find on these pleas, I have applied the principles set out in the decision of R v Olbrich.[5] The High Court adopted what was said by the majority in the Victorian Court of Appeal in R v Storey.[6] Consequently, I have not taken into account facts in a way adverse to the interests of any accused unless those facts have been established beyond reasonable doubt. On the other hand, I have not taken into account facts in favour of an accused unless those facts were established on the balance of probabilities. On some issues, I have simply not been able to make any finding because neither party has been able to persuade me to the requisite degree.
[5][1999] 199 CLR 270 at 280-81.
[6][1998] 1 VR 359 at 369.
I am not satisfied on the balance of probabilities that the deceased physically attacked Mr Walker before Mr Walker attacked the deceased. I am unable to sentence Mr Walker on such a basis notwithstanding the Crown's quite proper concession that it could not prove the contrary position beyond reasonable doubt. Having carefully considered the tape-recorded conversations, I cannot make a finding of fact on this issue and must therefore deal with Mr Walker on the basis that it is unknown whether the deceased assaulted Mr Walker before he struck the deceased.
I do not accept that Mr Walker struck the deceased only twice on the head with the pinchbar. There was obviously a struggle in the hallway which lasted some time. I am satisfied that the attack upon the deceased by Mr Walker was a more brutal and sustained attack in which the deceased was struck on numerous occasions with the pinchbar although I cannot make a finding as to how many times. Even if the deceased had provided some physical provocation, Mr Walker, by his plea, admits that there was no lawful justification for the injuries he inflicted upon the deceased which caused his death.
At the conclusion of the plea made on Mr Walker's behalf, it was submitted by the learned prosecutor that the plea had involved a number of assertions of fact which were demonstrably untrue and which had been placed before me for the purpose of misleading me to achieve a sentence that would be lighter than the one which would otherwise have been appropriate in all the circumstances. In particular, the learned prosecutor pointed to the assertions made by Mr Walker to Mr Healey that it was Mr Gutkowski who brought the pinchbar to the Fehan Street flat and the claim that the deceased was only struck two blows to the head. I am satisfied on the basis of the depositions and tape-recorded conversations that those assertions of fact are incorrect. Counsel for Mr Walker and Mr De Bono were alert to the fact that such facts were in issue, but no evidence was called in support of these propositions. The learned prosecutor invited me to treat the false facts advanced on Mr Walker's behalf as demonstrating a lack of remorse on Mr Walker's part and as being relevant to the question of rehabilitation. The absence of remorse may be indicated by a lack of candour with the Court.[7] There are circumstances in which lies advanced by an offender in the course of their plea might be used in such a way. In R v Asad[8] Buchanan JA observed:
"It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender in his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related."[9]
[7]See R v Streckert (1985) 38 SASR 250; R -v- Rumpf [1988] VR 466.
[8](2003) VSCA 3.
[9]See Footnote 8 at paragraph 14.
Usually evidence is required before a fact would be accepted by the court which mitigates the seriousness of the offence as established by the depositions. Before I could use the false assertions made on Mr Walker's behalf in the way the Crown submitted, I would need to be satisfied that Mr Walker had instructed his counsel to make such submissions or told the psychologist of such matters knowing the facts to be false, that the purpose was to knowingly mislead the Court by minimising the seriousness of his criminal acts and that such conduct reflected a lack of remorse.[10] I should approach such a conclusion with caution as there are many reasons why facts may be advanced by an offender which may prove to be incorrect. A sentencing judge can more readily draw such conclusions where false evidence has been given or tendered on the plea, the offender having attempted to discharge their evidentiary onus to establish facts which reduce the seriousness of the offence. In this case, this course was not followed.[11] To find that demonstrably false facts not the subject of viva voce evidence but asserted on a plea detract from the remorse which otherwise exists, there must be compelling evidence to establish each of the necessary facts which provide the foundation for such a conclusion. Mr Walker has exhibited a degree of contrition and does have prospects of rehabilitation despite the appearance of a lack of candour by him to his counsel and psychologist.
[10]See Signato v The Queen (1998) 194 CLR 656
[11]See R v Newton (1982) 4 Cr Appeal R 388; R v Jauncey (1986) 8 Cr App R 401.
Mr De Bono's role
It is not uncommon for there to be analytical difficulties associated with the Crown's acceptance of a plea of guilty where the evidence invites the conclusion that the offender is guilty of a more serious offence. Such difficulties were adverted to by Cummins J. in R v Christie & Rogers[12] and in R v Wiley[13] where it was observed that the sentencing judge is sometimes required to adopt an artificial and unrealistic view of the facts. This is such a case. The Crown has submitted that I should be satisfied beyond reasonable doubt that Mr Walker subjected the deceased to a sustained and brutal attack in which he repeatedly struck the deceased over the head with the crowbar in the presence of Mr De Bono. It is that conduct which Mr De Bono is said to have aided and abetted. The evidence which establishes this is common to Mr Walker and Mr De Bono. The Crown was placed in a difficult position. It could not establish beyond reasonable doubt precisely what role Mr De Bono had in fact played in the hallway it being evident from the tape recorded conversations between Mr De Bono and Mr Walker that he had a poor recollection of the events that occurred. Mr De Bono's comments to Mr Walker amply support the conclusion that at the very least, he was present and encouraged the acts of Mr Walker which caused the death of the deceased.[14] It was in this setting that the Crown determined to accept Mr De Bono's plea of guilty to manslaughter on the basis that Mr De Bono aided and abetted Mr Walker when the deceased was killed and that Mr De Bono's intention was no more than that required for an unlawful dangerous act. He clearly played a lesser and more passive role than Mr Walker.
[12](1999) VSC 117 para. 19.
[13][1989] VR 21 at 39.
[14]Transcript at pp. 549, 595, 661, 674-5, 698.
Circumstances of aggravation
Having killed Mr Gutkowski, Mr Walker and Mr De Bono set about disposing of the body. The body was dismembered in Unit 5, probably at the end of the hallway near the bathroom using a cut-throat razor and hacksaw grinder or circular saw. The occupants of Unit 4 heard a tapping sound for some time which was probably noise associated with the dismembering of the deceased's body. The tools may have come from Unit 1, the occupier of that unit being in hospital at the time. Blood was found at the base of the shower in Unit 1 where the tools may have been cleaned. A cutthroat razor was found above a cupboard in Mr Walker's bedroom. Mr Walker and Mr De Bono refer to the razor and the likelihood that it would have blood on it in their conversation in the cells.[15] The razor had blood on it which contained within it the deceased and Mr Conci's DNA. Although the deceased's blood was found upon runners belonging to Mr Conci the Crown has conceded that it is unable to establish that Mr Conci played any role in the dismembering of the deceased's body. Whilst it is clear that Mr De Bono was at least present whilst the deceased's body was dismembered and assented to what was done, I am unable to say what level of assistance was provided by Mr De Bono in dismembering the body.
[15]Transcript at p. 613.
After Mr Gutkowski's body was dismembered, various parts were deposited in street bins in the vicinity which had been left out for council collection that night. Each of the offenders took part in the disposal of the body in this way, although it was said on Mr Conci's plea that he only disposed of one part. Many of the body parts found their way to the Brooklyn tip where they were progressively discovered over the next few days.
After the body was disposed of Mr Walker and Mr De Bono went to Mr Gutkowski's bungalow and stole at least two rings, a gun, a portable phone and a video and then set fire to the deceased's bungalow.
On his plea, Mr Walker claimed that following the attack upon the deceased, he shared with his associates the heroin which had been brought to the flat by the deceased. Mr Walker told Mr Healey that he then went to the deceased's dwelling and took a VCR, a gun, a cell phone and a diamond ring. Mr Walker said that he observed a handsaw there and then decided to dismember the deceased returning to Fehan Street with the handsaw. Mr Walker provided Mr Healey with this account which is contained in Mr Healey's report. That account is inconsistent, in material respects, with the facts as I have found them.
The Crown points to the dismemberment, defilement and disposal of the deceased's body and the arson of the deceased's bungalow as circumstances of aggravation of the offences to which Mr Walker and Mr De Bono have pleaded guilty. The dismemberment and disposal of Mr Gutkowski's body shows a lack of remorse by Mr Walker and Mr De Bono and the lengths to which they were prepared to go to conceal the crime which had been committed. It is well established that such conduct must be viewed as circumstances of aggravation. Counsel for Mr Walker and Mr De Bono did not contend otherwise although the precise role which Mr De Bono played was disputed and is attended by some uncertainty.
The dismemberment of the body may be viewed as an aggravating circumstance independent of the question of whether it tends to negative remorse or was pursued for the purpose of concealing the crime. In support of this consideration the Crown has referred me to photographs 284, 287 and 288 and has submitted that those photographs when viewed in conjunction with the remarks of Mr Walker[16] in the transcript of conversation reveal a malicious mutilation of Mr Gutkowski's body. I was urged to listen to these conversations. Upon listening to the recording Mr Walker can be heard to laugh as he describes what he did to the deceased's body.
[16]Transcript of conversations at p.630.
It was said on Mr Walker's behalf during the course of the plea that I could not find that the deceased's body was mutilated in a malicious manner and that there was no expert evidence to explain this aspect of the dismemberment. It was submitted on Mr Walker's behalf that because only small parts of what Mr Walker was saying are audible or intelligible I should be slow to interpret his words in the way in which the Crown contends. Furthermore, it was suggested that I should not attach any particular significance to the fact that Mr Walker was laughing as he described what he had done as there were competing inferences as to why he was laughing and whether it was laughter born of amusement or hysteria. The learned prosecutor was criticised for belatedly drawing my attention to this material. In my view he was justified in doing so. This limited material does raise the hypothesis that the mutilation of Mr Gutkowski's body was maliciously motivated. Careful consideration of the evidence that exists has led me to conclude, however, that there is insufficient evidence to permit satisfaction of this circumstance beyond reasonable doubt.
Mr De Bono's role with respect to the dismemberment and disposal of the deceased's body is also attended by uncertainty. It appears that Mr De Bono regarded the deceased as too big and heavy to bury. Again it is apparent from the recorded conversations with Mr Walker that Mr De Bono's memory of these events is poor but the conversations confirm that Mr De Bono was at least present and aware that the deceased's body was being dismembered. Counsel for Mr De Bono accepted that such a conclusion could properly be drawn from the conversation.[17] These passages support the conclusion that Mr De Bono participated in the disposal of the deceased's body. It was accepted by his counsel that such conduct constituted circumstances of aggravation of the offence and that in principle, if Mr De Bono was present and encouraging the dismemberment and disposal of the deceased's body, little would turn upon the precise nature of his participation.
[17]Transcript of conversations at pp. 564, 584-5, 596, 613, 629, 647, 663-5, 667-8, 683-5 and 687.
By the time of Mr De Bono's conversations with Mr Walker on 13 June 2001, Mr De Bono expressed regret and revulsion about what had been done to the deceased's body. I accept those remarks as indicating a genuine remorse for that conduct.
The head of the deceased has never been found and no information has been forthcoming from any of the offenders before the Court to assist the investigating police in locating it. This has been a continuing source of distress to Mr Gutkowski's family. I accept the Crown's submission that the proper conclusion to be drawn from the tape-recorded conversations between Mr Walker and Mr De Bono is that the head of the deceased was not disposed of in exactly the same manner as the other parts of Mr Gutkowski's body. According to Mr Walker it was Mr Conci who disposed of the deceased's head. I also accept that the tape-recorded conversations show that Mr Walker and Mr De Bono were concerned that the cause of death of the Mr Gutkowski would become apparent if his head was discovered.[18] The Crown invited me to conclude from these conversations that Mr Walker and Mr De Bono recognised that the recovery of the head would show, not merely the cause of death, but the severity of the assault upon the deceased. The paucity of the evidence does not enable me to draw any conclusions as to precisely how this part of the deceased was disposed of and whether there was any particular motive for the course that was followed in its disposal. I cannot say whether Mr Walker or Mr De Bono knew where the head was finally disposed of. The fact remains that Mr Walker and Mr De Bono violated the deceased's body in the most macabre and callous manner significantly aggravating the seriousness of the crime to which each has pleaded guilty. The brutal circumstances in which the deceased died and the mutilation of his body are and will remain a source of continuing trauma and distress to the deceased's family. They must forever carry with them the images of how Mr Walker’s and Mr De Bono desecrated the deceased's body and that his head has not been recovered.
[18]Transcript of ocnversations at pp. 611, 615, 616, 621-2, 637-9.
The Crown also relies on the arson of the deceased's bungalow which put at risk the lives of other persons residing in the adjoining house. For the reasons that I have already expressed the arson of the deceased's bungalow should be viewed as an aggravating circumstance, but I do not regard it as appropriate to take into account that the arson threatened the lives of others in the adjoining premises. This was an unintended and incidental consequence of Mr Walker and Mr De Bono's conduct.
Insufficient nexus between aggravating circumstance and crime
All of the authorities extensively reviewed by the Court of Appeal in DPP v England, to which I have referred, illustrate that there must be a sufficient nexus between circumstances of aggravation and the commission of the crime for which the offender is to be sentenced. That connection is present in all of the cases considered in the judgment of Brooking JA. In my view, the degree of connection between the endangerment to the lives of the deceased's neighbours and the commission of the offence is not present and I would be in error in viewing that aspect of the arson as making the crime to which the offender has pleaded guilty more serious. Even if there were a sufficient nexus between the endangerment to the lives of others as a result of the arson and the commission of the offence it is evident that neither Mr Walker nor Mr De Bono intended or were recklessly indifferent to any such consequence in burning the deceased's bungalow. The comments of both Mr Walker and Mr De Bono in the tape-recorded conversations strongly suggest that they did not contemplate any such consequence and regretted that any such risk had been created.[19]
[19]Transcript of conversations at pp. 541, 554, 574-5, 603, 613, 618 and 709.
If I adopted the approach which the Crown urges,[20] there is a danger of compromising the well-established principle that a judge should not take into account as a circumstance of aggravation, evidence which constitutes the commission of a serious and separate offence to that upon which the offender is to be sentenced where the offender has not been charged or convicted in respect of such an offence. As a matter of fairness a person should not be punished for an offence for which he has not been charged or convicted. While a sentencing court may not be precluded in some cases from considering a separate offence the authorities suggest that it must always be a matter of degree to determine whether such facts should be taken into account. When it would be appropriate to do so is left to the discretion of the sentencing judge.
[20]R v De Simoni (1981) 147 CLR 383; R v Teremoana (1990) 54 SASR 30; Walsh v The Queen (1996) 6 TR 70; R v Newman & Turnbull [1997] 1 VR 146; R v Delphin (2001) 79 SASR 429; R v Sessions [1998] 2 VR 304 at 322.
The endangerment to the lives of others resulting from the arson of the deceased's bungalow involves consideration of circumstances which themselves amount to a discrete and serious offence. The Crown, having initially presented the offenders on a count of arson chose to shape its new presentment differently. The new presentment was explained on the basis of the Crown practice not to include other counts on a presentment containing a count of murder. Such a practice ought not inhibit me from applying basic principles of fairness. The Crown should bring the separate charge where it desires flexibility in sentencing so as to permit a judge to deal with aggravating circumstances which amounts to a discrete and serious offence.
I will take into account as a circumstance of aggravation the arson of the deceased's bungalow as demonstrating the lengths to which Mr Walker and Mr De Bono were prepared to go to distract attention from or conceal the commission of the offence to which they have pleaded guilty. It is also indicative of a lack of remorse for what they had done. Counsel for both Mr Walker and Mr De Bono accepted that the evidence could be used in this way.
The victim impact statements have enabled me in a more specific way to consider the matters that a sentencing judge would ordinarily consider in a broader context. They have provided a human dimension to the impact of this crime. As Vincent J. observed in R v Beckett:[21]
"They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only of significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it."
[21][1998] VSC 219 Unreported (20 August 1998).
It is clear from the victim impact statements of Eddie Gutkowski’s family that he was greatly loved by them. To his nephews, sister and brother-in-law he was a cherished and loyal member of the family. Each describes the various ways in which this loss has affected their lives. Family reunions are a painful reminder to them of the loss of their loyal friend. Each speaks of the grief and suffering of Eddie's mother. The conduct of Mr Walker and Mr De Bono has left them with an incalculable loss and a grief which they will have to endure for the rest of their lives. They have been left with a terrible legacy.
The matters raised in the victim impact statements are not however the only matters which I am required to consider in determining an appropriate sentence. I must consider each of the offenders before the Court in the light of all the circumstances relevant to the specific offence and to the individual offender.
Mr Walker's individual circumstances
Mr Walker, you have pleaded guilty to having murdered Edward Joseph Gutkowski on the 5th day of June 2001 in the circumstances which I have described in detail. You indicated your willingness to plead guilty to murder shortly before the trial was due to commence. Your plea will justify some mitigation of the punishment I would otherwise be obliged to impose. Your plea has saved the State a trial and the witnesses both trauma and inconvenience. I treat your plea of guilty as indicating contrition on your part notwithstanding some remarks you made to Mr De Bono on 13 June 2001 which could be interpreted as suggesting otherwise.[22] I take into account your plea of guilty both for its own sake and because of its beneficial consequences.[23] You are entitled to a significant discount from the sentence that would otherwise have to be imposed for your brutal crime. I take into account the submission made on your behalf that a defence of self-defence was a "reasonable possibility" and would have been left to a jury had the matter proceeded to trial.[24] I also note your admission to Mr De Bono that when you get upset you lose your head.[25]
[22]Transcript of conversations at p. 647.
[23]See R v Donnelly (1998) 1 VR 645 and passage in the judgment of Calloway JA. in R v Duncan [1998] 3 VR 208 at 215 to which I was referred.
[24]See R v Lloyd (1998) 104 A Crim R 187.
[25]Transcript at p. 604.
You were born on 29 May 1966. You have admitted to being convicted of 58 offences from 14 court appearances between August 1985 and November 2000. These convictions included burglary, theft, obtaining property by deception, handling stolen goods and forgery. Your first conviction was for possession of a drug of dependence and using a drug of dependence and it is apparent both from your convictions and from the evidence that was placed before me that for most of the last 17 years you have used and possessed drugs of dependence. Of greater concern are your convictions for crimes of violence. You were convicted of assault occasioning actual bodily harm in July 1986, of robbery and causing intentional injury in June 1987 for which you were sentenced to a term of imprisonment of 12 months. You were convicted of assault with intention to rob in December 1994 and you were sentenced to a term of imprisonment of 15 months, 11 months of which was suspended. In March 1998 you were sentenced to be released on a combined custody and treatment order for a period of 12 months for theft charges, entering a building with intent to steal, obtaining property by deception and attempting to commit an indictable offence and you were required to serve six months in custody and the balance in the community. In breach of that order you were convicted in November 1998 of theft, attempted theft, using heroin, tampering with a motor vehicle, handling stolen property, obtaining property by deception, using and possessing cannabis and you were sentenced to a term of imprisonment for an aggregate period of six months which was wholly suspended and you were required to serve six months for the breach of the suspended sentence. Eight days later you were further convicted of three counts of burglary, theft, handling stolen goods, possession of property suspected of being the proceeds of crime, theft of a motor vehicle, going equipped to steal and possession of cannabis, and you were sentenced to a term of imprisonment of six months. As Mr Healey notes in the psychological report, you had only been released some six weeks prior to the commission of the crime which now brings you before this Court.
It is clear from your criminal history and from the material placed before me on your plea that you have been entrapped by heroin abuse or addiction since a relatively early age. There is no doubt that the crime which brings you before this Court was a drug-related one and that you, Mr De Bono and Mr Conci, to varying degrees, were all "hanging out" at the time that Mr Gutkowski had the misfortune to visit your home to sell you more heroin and collect a payment for a previous deal of heroin. You had relapsed into heroin abuse following your release partly because of your association with a female heroin addict.
I accept the submission made on your behalf by Mr Lyon who has put your plea in a comprehensive and compelling manner that you were affected by alcohol and Serepax on the evening of 5 June 2001 when Mr Gutkowski visited you. You and Mr De Bono openly acknowledged in the course of your tape-recorded conversations in the cells that you had consumed a large amount of alcohol that day. You also told Mr Healey that after you had hit Mr Gutkowski with the crowbar, you shared with your associates the heroin that he had brought with him, before going to his home to steal his property. The effects of alcohol, Serepax and heroin may in part explain your callous and macabre treatment of Mr Gutkowski's body and the arson of his bungalow.
I accept that through your period of current remand you have been drug free and have completed a drug program achieving enhanced prisoner status in November 2001.
You told Mr Healey as appears from his report that following your withdrawal from drugs whilst in custody you came to appreciate the brutality of your action and are bewildered as to how you could have behaved as you did. You have required ongoing medication for depression and a sleep disorder whilst in custody. This condition may in part be due to your recognition of the enormity of your conduct.
You were adopted in infancy and lived with your adoptive parents until you left home at the age of 18 years. You attended a primary school in Werribee and then primary high school for Years 7 to 10 and you did not appear to have any difficulty coping with school life. You represented the school in football and cricket and played football for a local club. Subsequent to schooling, you attended the School of Graphic Arts where you qualified as a printer. Your adoptive parents were both hardworking, honest people. Your father, a qualified motor mechanic, worked for many years as the purchasing manager for Rheem Australia, whilst your mother performed clerical work. You have an adopted sister who is aged 40 years and with whom you had regular contact until the commission of this offence. It appears that your home life was relatively happy and harmonious.
You left school approximately halfway through Year 10 to work as a sales assistant at the Waltons store at Highpoint. Your father then managed to gain employment for you at Rheem where you worked as a manual labourer for some nine months before you and a lifelong mate from Werribee were lured by the excitement of the prospect of work in Sydney. Whilst your friend had work to go to, you had difficulty obtaining employ and within three months you had commenced to use heroin. You moved to Kings Cross. Recognising that you had a problem, you returned to Melbourne after approximately 12 months and with your father's assistance you were re-employed by Rheem who supported your training as a printer. You continued to use heroin recreationally on weekends and inevitably your use of heroin increased. Eventually your parents discovered your heroin use and they were devastated. You moved out of your parents' home. Your employer put you through a detoxification program which was initially successful but you reverted to heroin usage culminating in your appearance before the County Court on the charge of robbery in 1987 when you received your first term of imprisonment. Rheem Australia continued to support you after your release and it was during this period that you were offered an apprenticeship as a printer which you completed after three years. Between 1987 and 1994 you continued to use heroin intermittently and your work at Rheem was interrupted by periods of imprisonment and detoxification. It appears that when you found your heroin use beyond a "manageable" level you completed the detoxification course on leave without pay from Rheem. You avoided any contravention of the law for some four years, but in 1993 you received a wholly suspended sentence as a result of a number of offences including assault following the excessive consumption of alcohol. Despite the opportunity presented to you it appears that you continued to use heroin and by December 1994 you were resident in a detoxification program at Moreland Hall. You and another inmate went out drinking and observed a person asleep in a car and aroused him by impersonating police officers. You assaulted and attempted to rob the victim and you were sentenced to four months in custody with a substantially longer period of custody suspended. On your release you found gainful employ and obtained a fork lift licence. You remained in almost continuous employ between 1995 and 1997 working in positions with National Can, Wright Rubber and Westgate Transport. Despite your continued employment you followed your previous pattern of heroin use at the weekends with an escalating use of heroin. You submitted yourself to a number of detoxification programs and sought counselling at various times but you could not break the cycle of heroin usage. Although you were involved in a number of relationships with girlfriends during this period none of them appears to have endured. Your social network was largely one of drug associations.
I have already referred to your convictions in 1997 and 1998 during a period in which you were heavily involved in drug use. It was after your release from custody in May 2001 that you commenced a relationship with Ms Grozdanovski who found accommodation for you at Mr De Bono's flat in Fehan Street where you continued to use heroin.
I have had the benefit of Mr Healey's report which shows, Mr Walker, that upon Wechsler Adult Intelligence Scale testing you were assessed with an IQ of 104 showing that you were of above average intelligence. Mr Healey observed that there was a substantial discrepancy between your verbal IQ which was 123 (placing you at the 92nd percentile) and your non-verbal IQ of 80 (placing you at the 9th percentile). It was Mr Healey's opinion that this discrepancy may reflect a higher level cerebral impairment brought about by drug abuse. Personality testing indicated that you suffered from anxiety, social introversion and sociopathic features consistent with your drug abuse, anti-social behaviour and vulnerability to substance abuse. You have some history of epilepsy which Mr Healey did not regard as surprising having regard to your excessive use of benzodiazepines. You told Mr Healey that on some 20 occasions you have been treated for overdosing on a combination of pills and heroin. Your functioning by 5 June 2001 had obviously undergone a marked decline through your use of benzodiazepines and heroin. As Mr Healey's report suggests, you are now well aware of the lethal effects of such drug abuse which have persistently brought you into conflict with the law and, in part explains your brutal and bizarre conduct on this night.
You have been in custody since June 2001. It is apparent from Mr Healey's report and the information provided to him by Dr Tuck of Port Philip Prison that you were malfunctioning as an individual when you first entered the prison at which time you were aggressive, unsettled and quite erratic in your behaviour. It is thought that your serious abuse of benzodiazepines is largely responsible for this disturbed and detached functioning. It explains your fitting. You have been prescribed various medications that I have already referred to and this medication regime has been supported by consultant psychiatrist, Dr Lester Walton, and the prison psychiatrist, Dr James Lay. As a result you are now viewed as being much more settled, being non-demanding in your approach and willing to conform. You have completed a laundry certification course in the prison which is further demonstration of your work ethic which you appear to have maintained for substantial periods of the time that you were caught up in the drug cycle. I take into account your age at the date of your prospective release and with ongoing medication and counselling during your period in custody, there is some reason for optimism that you can be rehabilitated.
Mr De Bono's individual circumstances
Mr De Bono, you have pleaded guilty to the manslaughter of Edward Joseph Gutkowski on the 5th day of June 2001. You were present when Mr Walker brutally assaulted the deceased inflicting numerous blows to his head with a pinchbar. You were also present whilst Mr Gutkowski's body was dismembered. By your plea you admit that you encouraged or assented to what Mr Walker did. You then assisted Mr Walker in disposing of the dismembered parts of Mr Gutkowski's body and in setting fire to his bungalow. I have already examined the detail of this terrible crime and I do not need to narrate it further. The Crown accepted your plea on the basis that you had occasioned his death through the performance of an unlawful and dangerous act as that concept is understood by the law. What that expression means in practical terms in the context of your case is that you are not to be taken as having intended to kill Mr Gutkowski or to cause him really serious bodily injury, but to have brought about his death by encouraging an assault on him of the kind that a reasonable person in your position would have recognised would expose him to an appreciable risk of death or injury. It is on that foundation that I must now impose sentence upon you. I shall not repeat what I have already said in relation to Mr Walker concerning the considerations which I must take into account as a result of your plea of guilty. I do accept on the basis of the submissions made on your behalf by Mr Montgomery and the evidence placed before me that your plea unreservedly indicates contrition for the role that you played in this crime.
You are now aged 45 years having been born on 15 February 1958. You have admitted the commission of 40 offences prior to this crime arising from 21 court appearances between 1 June 1976 and 16 October 2000. Most of those offences relate to or arise from alcohol or drug abuse. Significantly your only period of incarceration arises from your first conviction when you were sentenced to three years in a youth training centre. On a number of occasions the sentence which has been imposed was wholly suspended. Some offences are for dishonesty and show a preparedness by you to disregard the rights of others but in my opinion these matters do not assume any particular importance in the present context. Of more concern are those offences which involve violence. You have been convicted of assault on two occasions and you have been fined for those offences. In December 1997 you were convicted of attempted armed robbery and you were sentenced to be released on a community-based order for a period of 18 months. I accept that all of these offences are indicative of your level of alcohol and drug abuse.
You were brought up in Brunswick and your parents appear to have been hardworking and devoted to you. Since you were arrested in June 2001 your father, who is diabetic and has had heart bypass surgery, has not visited you as he would be extremely distressed over your current situation. You are visited regularly by your mother. You have two sisters, Rosie aged 36 years, who is married with two children and with whom you have a good relationship. She visits you in custody regularly. Your younger sister, Mary, also has a good relationship with you.
You finished schooling at Brunswick Technical School during Year 11 and as you indicated to Mr Joblin, psychologist, you were only just literate when you left school aged 16. Initially you worked for VicRail and after five years left and completed a course at a landscaping and gardening school in Glen Waverley. You then began an apprenticeship with the Northcote Council as a gardener and labourer, remaining there for five years. You established a small business as a landscaper which you continued in for four years. When the landscaping business ended you attended a course in electronics and began a business searching for intrusive listening devices. Despite escalating problems with alcohol and drugs, you continued in that business for some three years but since then you have not undertaken any permanent gainful employ. You have performed a substantial amount of volunteer work in a community centre at Yarraville, about which I shall say something further. Since at least the mid nineties you have been on sickness benefits and receiving a disability support pension.
You were 19 years of age when you left your family home and commenced living with a young woman who shortly thereafter became your wife. You had a son, Tony, who was born in 1979 and you moved the family to Melton where you had bought a house. You are now separated from your wife but not divorced, the separation occurring in 1992. Since the breakdown of your relationship with your wife you have had no further significant relationship. Your son has remained with you after the separation and you first lived with your parents until you were asked to leave because of your mother's disapproval of your drinking and drug abuse. Since then you have lived in cheap rooming houses and other accommodation until you obtained a unit in Fehan Street, Yarraville where your son, Mr Walker and Mr Conci also resided.
It appears that from your late teenage years you have declined steadily into alcohol and drug abuse so that by the time you were in your mid-thirties and your small business ended, you could no longer work and you had lost your wife. You survived on your sickness benefit and disability support pension.
Two neuropsychological reports dated 1 June 1997 and 5 June 1998 were tendered on your behalf and two psychological reports of Ian Joblin, dated 20 and 24 January 2003 respectively. In the first of those reports it was noted that in 1997 you were a regular outpatient at the drug and alcohol clinic at the Western General Hospital and had been so for the previous 12 months as part of your bail conditions arising from one of your court appearances. At that time you exhibited gross cognitive impairment with a dense amnesia and impaired adaptive skills and you showed little insight into your condition. Your behaviour and responses were described as at that time as bizarre and inappropriate suggestive of the serious effects of substance abuse. The second report, prepared a year later, showed a significant improvement from your previous assessment but your profile indicated a substance-related brain injury of mild to moderate severity. This damage affected your capacity to concentrate, to plan and solve problems to regulate your behaviour and to process information. You were also suffering from an anxiety disorder which contributed to your poor memory performance.
When Mr Joblin assessed you in 2003, you told Mr Joblin that during the nineties while receiving treatment pursuant to a community treatment order, you were placed on anti-psychotic medication but you continued to take other prescriptive drugs such as Serepax and you continued to use alcohol, heroin and cannabis. These concoctions would cause you to either black out or become aggressive.
You have a sad history of amphetamine psychosis and Mr Joblin is of the opinion that you may be suffering from Korsakoffs’ syndrome which is constituted by an organic brain dysfunction. Amnesia and confabulation, that is loss of memory for recent events and the filling of memory gaps by tales of imaginary events are two of its manifestations. Mr Joblin also noted that you had continued to drink heavily and to use drugs since your assessment in 1998 and that your condition may well have deteriorated between then and the time of the commission of this offence.
Whether or not you do suffer from Korsakoffs’ syndrome, it is evident that you were suffering from a substance abuse-related brain injury of mild to moderate severity well prior to the commission of this offence. This condition clearly affected your judgment and your ability to make decisions and I shall take this into account in assessing your level of moral culpability. Whilst the evidence placed before me establishes that you had a clear understanding of what you and others were doing at the time of this offence your judgement was impaired, not only by virtue of your brain injury but because you had consumed a substantial amount of alcohol and perhaps drugs on this day and prior to the commission of this offence.
You became involved with the Baptist Church as a result of a court order directing you to do community work at one of their bargain centres and you continued as a volunteer at this centre until the time of this offence. Since you have been in custody you have been visited on a regular basis by Mr Forbes, a Director of Pastoral Care for the Baptist Community Care. He has told me how highly regarded and loved you were by the people with whom you worked at the bargain centre. Your willingness to help others was also confirmed by other material placed before me during the course of your co-offenders' pleas. As a result of Mr Forbes' regular visits you have built up a friendship with him. Mr Forbes has noticed over the time during which he has been visiting you that your clarity of thought has improved significantly, that you were having regular meals and that you were on top of your drug abuse. This has produced an obvious mental improvement. When you are released from custody, it is clear that the Baptist Community Care is committed to providing you with work and support. You have indicated your genuine remorse over your conduct and you have told Mr Forbes that you do not want to return to drug abuse.
Under the provisions of the Sentencing Act 1991, I am required to take into account any significant contribution that you have made to the community. Your counsel referred me to s. 6(c) of that Act. Whether or not your volunteer work can be described as a significant contribution, it is appropriate that I take it into account. I am also conscious that you exhibited genuine signs of remorse during your conversations with Mr Walker which were tape-recorded. I am satisfied that you do have prospects for rehabilitation and that it is your intention to pursue a more responsible lifestyle upon your release. I also accept the submission made by your counsel that you are by nature a follower rather than a leader, which was amply demonstrated by the manner in which you and Mr Walker communicated during your tape-recorded conversations.
The facts on Mr Conci's plea
In considering the cases against Mr Walker and Mr De Bono the Crown invited me to conclude that you may have played some role in what occurred in the hallway at the time Mr Gutkowski was killed. That evidence, which is no part of the case against you, is to be derived from the conversations which took place between Mr Walker and Mr De Bono in the cells after they were charged. Such considerations are not germane to your plea and I have ignored them. You have pleaded guilty to knowingly impeding the prosecution of Stephen James Walker, knowing or believing him to be guilty of murder of Edward Joseph Gutkowski on 5 June 2001. I will discount the penalty that I would otherwise be bound to impose in the light of your guilty plea.
Although you pleaded guilty to the count as the presentment is worded, it was submitted by Ms Sutherland who appeared on your behalf that your plea should not be regarded as more than an admission that you knew or believed that a serious or indictable offence had been committed. Your counsel submitted that you did not know that Mr Gutkowski had been murdered and you were not present at the time that he had been killed. All you knew was that Mr Gutkowski had died but you did not know the circumstances in which that came about. I was told that you had taken Serepax that evening and that you were in a depressed state of mind, and that when you returned to Unit 5 Fehan Street you were confronted with the most horrific scene which, as your counsel reminded me, had been described by Mr De Bono as the "house of horrors". I should set out the facts which your counsel submitted define the extent of your criminality.
"He saw the body of someone in a dismembered state. He said there was paranoia and panic and confusion. He said it was like a madhouse. Then to use his terminology, he simply freaked out, and for reasons which I shall shortly develop, assisted by picking up what he believes, although he said he is entirely unsure, a limb, be it an arm or a leg or a thigh or what have you and put it in the bin which was outside and took it out into the street. He says that that represents the totality of his involvement in this matter."
The Crown, with some justification, in responding to the submissions made to me by your counsel, said that you were minimising to the greatest possible degree your participation in this crime consistent with your plea of guilty. I was told that the account that you have asked me to accept had not been communicated to the Crown prior to your counsel informing me as to what you say occurred. The Crown challenges these assertions of fact. No evidence was called by you to persuade me your role was so minimal. As I foreshadowed in the course of the plea, I would not, absent evidence to the contrary, accept that you played the limited role you have described. I do not on the other hand accept the Crown's denial that the case against you was a weak one. The Crown cannot establish what it is that you did and it is on this basis that I must sentence you. You had blood of the deceased on your shoes. The razor found in Mr Walker's bedroom, which had on it the blood of the deceased but also contained within it your DNA. No satisfactory explanation was advanced as to how your DNA would come to be on the razor. These facts alone do not enable me to draw a conclusion as to what you did and I therefore propose to sentence you on the basis that the role you played in assisting Mr Walker is, beyond that which you have acknowledged, largely unknown.
Mr Conci's individual circumstances
You were born on 23 February 1977 and you are 26 years of age. You have 106 previous convictions upon 19 occasions that you have been before the court, between June 1993 and January 2000. You have numerous convictions for burglary, one conviction for armed robbery, two convictions for robbery and two convictions for attempted robbery. Many of the convictions appear to be drug-related crimes. In 1998 you were given a combined custody and treatment order and the benefit of a suspended gaol sentence. In 1999 you were convicted of using heroin. You have served significant time in custody. In short, you have a very significant criminal history record primarily reflective of your drug-using lifestyle. Despite your serious record I take into account that you are 11 years younger than Mr Walker and 19 years younger than Mr De Bono. At the time of this offence you were 24 years of age.
Although you were arrested on 6 June 2001 it was, I am told, in relation to unrelated matters but you were kept in custody for some time because of what Mr De Bono and Mr Walker were overheard saying to each other in the cells, presumably concerning your role in relation to this offence. You were released on bail on 19 June 2001 and on 7 August 2001 you were charged with Mr Gutkowski's murder and you have been on remand ever since.
You grew up with your family in Rosebud and you have three brothers. Your parents separated on your 14th birthday but you have kept in regular contact with your father. He now lives in Epping and has his own industrial waste business, operating a number of trucks. You have three brothers, Nathan who is aged 23 years, who is currently on remand at Port Phillip Prison, he having been a heroin user since he was 20; Jordan, 21 years of age, who is a demolition labourer and has been a heroin user since the age of 17; and Tommy, who is aged 16 years and who resides with your mother in Sunbury, and who has never been in trouble with the law.
You initially attended St Joseph's School in Sorrento and when the family moved you attended St Peter's in Epping. The family then relocated back to the Peninsula and you attended Rosebud Primary and then Dromana Secondary College, leaving school at 14 years of age. You commenced a brick labourer's apprenticeship and you worked at this for some 18 months before being laid off because of the recession. Whilst undertaking the apprenticeship, you were introduced to cannabis and you were also drinking excessive quantities of alcohol. It was during this period that you committed your first series of burglaries and you left the Rosebud area and went to live with your uncle in Reservoir. It was then that you first tried heroin at the age of 17 years and within six weeks you had committed an armed robbery and were sentenced to a youth training centre for 18 months. You told Mr Cummins, psychologist, when you saw him on 8 February 2003, that since then you have lived the life of an addict and any money that you have made from short term employment you would put into drugs.
You have been involved in a steady relationship with Lauren Kennedy for some six years and it is a relationship you are anxious to resume upon your release. Although she has demonstrated an interest in the outcome of these proceedings her influence has not been sufficient to deter you from continued drug abuse and criminal behaviour. You remain close to your mother, who was left in the most difficult circumstances when your father deserted her, leaving behind him large debts and four young sons, of whom you were the eldest. Your parents' separation had a profound emotional effect upon you. It also led to your leaving school and commencing to work to earn money to assist your mother in supporting the family. It is not surprising in this day and age that one so young as you then were, with such pressure placed on his shoulders, turned to drugs. Initially you smoked cannabis, drank alcohol to excess and commenced to take amphetamines intravenously. You were, as I have noted, introduced to heroin by an uncle and you also started abusing Rohypnol and Serepax. Your uncle supplied you with your source of heroin and most of your convictions arose from your need to feed your habit.
Following your last period of custody, you went to Myrtleford where you lived with your girlfriend, Lauren. There you received counselling, found employment and remained drug-free. I accept that it is your hope that you can return to a similar lifestyle and that with the ongoing support of your mother, grandmother and Lauren you do have realistic prospects of rehabilitation.
Following the offer of a job to do some concrete paving in Melbourne with a friend, you returned to Melbourne with your girlfriend but after some four weeks that work came to an end. Lauren returned to live with her parents in Footscray and you felt very much alone and you relapsed into serious drug abuse. It was in these circumstances that you turned to Mr De Bono for accommodation in what your counsel described as the "halfway house" which Mr De Bono was running at Fehan Street. Although you were aware that Mr De Bono had both a heroin and an alcohol problem, you described him to your counsel as having a "big heart" and you were able to stay there at little or no expense. Your counsel submitted that when you came home on 5 June 2001 to be confronted by the horrific scene, you felt a sense of obligation to help Mr De Bono and Mr Walker. I accept that you were under the influence of drugs at the time and were in a depressed state because Lauren had returned to live with her parents.
When you were interviewed by Mr Cummins on 8 February 2003 at Port Phillip Prison, Mr Cummins found you to be severely depressed, mildly agitated and moderately paranoid. Significantly, he did not find that you had an anti-social personality disorder and that you recognised you had improved markedly when receiving the benefit of counselling. Your disturbed upbringing has, as Mr Cummins found, caused significant developmental problems for you, which you have started to appreciate but which can only effectively be addressed through ongoing counselling. You have been in custody since 7 August 2001, having originally been remanded on the count of murder. Your lengthy period of incarceration has ensured that you have remained drug-free and you have been prescribed anti-depressant medication, Luvox, for your severe depression. I understand that you have a firm offer of employment with your father if you remain drug free. You do have a developed and genuine interest in your own psychological state which has led to your recognition that you need more counselling.
Drug abuse of Mr Walker, Mr De Bono and Mr Conci
Mr Walker, Mr De Bono and Mr Conci, before passing sentences upon you, I should make one observation which is common to all three of you. Each of you has a long history of drug abuse and many prior convictions which are drug motivated or related. Your willingness in the past to submit to drug abuse made you all a danger to society. There is no doubt that the death of Mr Gutkowski was drug related and your condition at that time posed a considerable risk to those you dealt with. Each of you has already served a substantial period of pre-sentence custody and Mr Walker and Mr De Bono face a further lengthy period of imprisonment. Your rehabilitation very much depends upon what you make of your drug free period in custody. In each of your cases there is evidence of a quite marked improvement in your mental state as a consequence of being drug free for a protracted period during your pre-sentence detention.
Disposition: Mr Walker
The courts have a duty through the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who, by resorting to violence, destroy such life. There must never be any doubt about the commitment of the community and the court through which it speaks to reflect the importance of human life through the imposition of substantial penalties where an offender contemplates the unlawful killing of another. The fact that your judgement was impaired by the consumption of alcohol and drugs does not excuse your brutal and callous conduct and the courts must be seen to condemn such violence and to denounce your mutilation and desecration of the body of Mr Gutkowski. There are significant mitigating circumstances to which I have made ample reference and they must also be weighed in the balance with the aggravating factors. The Crown has accepted that your acts were unpremeditated and in response to some provocation though the events which precipitated your violence are uncertain.
Mr Walker, you have served 643 days in pre-sentence detention. Pursuant to s. 18(4) of the Sentencing Act 1991 I declare the period of 643 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its details be entered on the court record. Mr Walker, for the murder of Edward Joseph Gutkowski I sentence you to 18½ years of imprisonment and I direct that you serve a minimum term of 16 years imprisonment before becoming eligible for parole.
Disposition: Mr De Bono
Your conduct resulted in the death of Mr Gutkowski. The court must impose a sentence which will deter people from using violence as a solution to their problems and express in clear terms the court's denunciation of such a brutal and savage assault as you encouraged Mr Walker to commit. Your role in the dismemberment of Mr Gutkowski's body and the arson of his bungalow are aggravating circumstances which I must take into account, as are the mitigating circumstances I have already mentioned. You did not intend to kill or do Mr Gutkowski serious injury and the violence employed was spontaneous and arose in the course of a heroin sale.
I have had regard to the range of sentences handed down in this Court in recent years for the crime of manslaughter, bearing in mind that each case must be separately considered. I have concluded that the appropriate sentence is that you be imprisoned for a period of 8½ years and I fix a minimum period of six years before you become eligible for parole. I declare pursuant to s. 18(4) of the Sentencing Act 1991 that the period of 643 days during which you have been in custody as pre-sentence detention be reckoned as having already been served under the sentence I impose and I so certify and direct that this declaration and its details be entered in the records of the Court.
Disposition: Mr Conci
In determining the appropriate sentence to impose upon you, it is necessary to look at the character of the assistance that you provided and the relationship which existed between Mr Walker, Mr De Bono and yourself. I also have regard to your motive for providing assistance. It is not in the interests of the community that persons should assist others in the concealment of the commission of very serious crimes. The concealment of both the death and the body of Mr Gutkowski, with the intent that his body not be located and the crime not be discovered, must be regarded as extremely serious conduct and as a general proposition those who might contemplate engaging in such activity must be deterred.
I have considered the principles set out in the Sentencing Act1991 and in particular those guidelines contained in s. 5 of that Act. I have familiarised myself with the range of penalties which have been imposed upon persons in recent years for what are essentially offences of the same character. I also take into account the personal factors that relate to you, including your prospects for rehabilitation.
Mr Conci, you been in custody since the 7 August 2001 in relation to this offence and you have served 583 days in pre-sentence detention. Pursuant to s. 18(4) of the Sentencing Act 1991 I declare the period of 583 days as already having been served under the sentence I impose and I so certify. The effect of the sentence that I am about to pronounce is that, subject to other charges for which you are on remand, you will be immediately eligible for parole because of the time that you have now spent in pre-sentence detention. Because of your prospects for rehabilitation as reflected in the submission by your counsel and the report of Mr Cummins and the suggestion of Mr Cummins that you would benefit from a sustained period of counselling I propose to direct a longer period of parole than normally I would. I sentence you, Mr Conci, to three and a half years imprisonment. I fix a minimum non-parole period of 18 months imprisonment.
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