R v Walker & Maybus
[2016] VSC 116
•18 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0136
S CR 2015 0143
| THE QUEEN |
| v |
| JOHN PETER WALKER LUKE PAUL MAYBUS |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 February and 4 March 2016 |
DATE OF SENTENCE: | 18 March 2016 |
CASE MAY BE CITED AS: | R v Walker & Maybus |
MEDIUM NEUTRAL CITATION: | [2016] VSC 116 |
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CRIMINAL LAW – Sentence – Manslaughter – Theft – Arson – Late guilty pleas – Co-offenders pleaded guilty to manslaughter on the basis of different summaries of agreed facts – Varying prospects of rehabilitation – Membership of the Bandidos outlaw motorcycle gang relevant to specific deterrence – Comparable cases for manslaughter considered – R v Drummond [2013] VSC 104 – s 74 Crimes Act 1958 – s 197 Crimes Act 1958 – s 89(4) Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson with Ms A Moran | Office of Public Prosecutions |
| For the Accused | Mr S Johns | Theo Magazis & Associates |
| For the Accused | Mr S Petrovich with Mr S Tovey | Markotich Lawyers |
HIS HONOUR:
Luke Maybus and John Walker, you have both pleaded guilty to the manslaughter of Michael Strike. Mr Maybus, you have also pleaded guilty to the theft of a motor vehicle and the destruction of that motor vehicle by fire. The maximum penalty for manslaughter is 20 years’ imprisonment, for theft 10 years’ imprisonment and for arson 15 years’ imprisonment.
The offending
At approximately 5.25pm on 24 May 2014, the two of you, who were both fully patched members of the Melbourne chapter of the Bandidos Outlaw[1] Motorcycle Gang, were at the Bandidos clubhouse in Brunswick, along with a fellow member Joseph Girgis. Mr Walker’s dog “Trouble” was tied up outside. Michael Strike, the deceased, who was affected by alcohol and drugs, approached the dog, which became agitated.
[1]In both the Maybus summary of agreed facts ([3], [16]) and the Walker summary of agreed facts ([3], [20]), the Bandidos are stated to be an ‘outlaw motorcycle gang (OMCG)’.
What happened then is the subject of similar but different summaries of fact that were negotiated and agreed between each of you individually and the prosecution. You are each to be sentenced for the manslaughter only on the basis of the summary of agreed facts that applies to you.
Maybus summary of agreed facts
I will begin with the summary of agreed facts for Mr Maybus. Immediately after Mr Strike approached Mr Walker’s dog, the summary states, relevantly, that:[2]
[2]Maybus summary of agreed facts, [26].
(i) WALKER, hearing a commotion outside, went to the side door. The deceased was seen on internal CCTV footage by GIRGIS hunched over near the dog.
(ii) WALKER opened the door and asked the deceased what he was doing. The deceased was mumbling and incoherent. He mentioned the Dandenong Chapter of the Bandidos. The voices of WALKER and the deceased became louder. The deceased moved towards WALKER.
(iii) WALKER grabbed the deceased and dragged him inside the clubhouse. The door was shut and latched by MAYBUS. A further loud conversation ensued where the deceased mentioned a bombing at the Dandenong chapter of the Bandidos and that he knew Michael BOGOVIC, an ex-Bandido. He mentioned BOGOVIC by name.
(iv) MAYBUS, who was standing behind WALKER, punched the deceased hard with a fist to the right cheek. The deceased’s hands were by his side at the time. Following the punch, the deceased put his hands up to defend himself.
(v) WALKER, an ex-boxer and body builder, then punched the deceased multiple times to the face and chest.
(vi) GIRGIS, who knew BOGOVIC, attempted to call BOGOVIC, the first of numerous attempts by GIRGIS that evening to speak to BOGOVIC about STRIKE. At one point, MAYBUS also tried to contact BOGOVIC.
(vii) WALKER and MAYBUS assaulted the deceased by punching him. The Crown cannot prove beyond reasonable doubt that GIRGIS was not also involved in the assault.
(viii) In doing so, the assailants were acting pursuant to a joint criminal enterprise; namely inflicting injury to the deceased. Initially all participants were unarmed, then another assailant[3] assaulted the deceased with a steel bar to his limbs, bottom and torso. MAYBUS became aware of the use of the weapon and continued his own assault on STRIKE. This was a continuing unlawful and dangerous act which carried an appreciable risk of serious injury. The Crown do not allege that MAYBUS was ever armed during the joint assault.
(ix) Pathologist Dr Dodd, can identify at least 17 areas of direct trauma inflicted by an implement such as a pole or baseball bat. MAYBUS [was] not aware of how many occasions the deceased was struck. It is accepted by MAYBUS that the initial blows were struck whilst MAYBUS was assaulting the deceased. At some stage during the attack, WALKER rammed the deceased’s head into the stripper pole. Further, at some stage during the incident the deceased was struck with a steel bar to the left-side of his head. It is not put that MAYBUS agreed to or was party to the striking of Michael STRIKE to the head with the steel bar.
(x) It is accepted by MAYBUS that at the conclusion of the assault at the clubhouse, which lasted for some minutes, the deceased was catastrophically injured. Dr Dodd describes STRIKE’S head injuries as catastrophic but describes death as due to head and chest trauma. Any injury or combination of injuries that caused death were inflicted at a time when the joint criminal enterprise was on foot and MAYBUS was aware of the use of the [bar].[4]
(xi) The liability of MAYBUS is put on the basis of his own acts, namely punching the deceased and his awareness of the use of the [bar] by one of the other participants in the assault. (Charge 1 – Manslaughter)
(xii) Immediately following the assault, STRIKE was unconscious. The deceased was bleeding profusely, so much so that the source of the bleeding was obscured. The decision was made to remove STRIKE from the clubhouse.
(xiii) WALKER went next door to Doherty’s gym and got the keys to the Doherty’s gym van. WALKER parked the van next to the side door of the clubhouse. MAYBUS, WALKER and GIRGIS picked up the deceased and placed him in the rear of the van.
(xiv) MAYBUS drove off in the van with the deceased in the back. GIRGIS has denied travelling with MAYBUS in the van yet his phone records suggest otherwise. There was another assailant in the van with MAYBUS. By this time MAYBUS was of the view that STRIKE was already deceased. The Crown cannot establish beyond a reasonable doubt precisely when STRIKE died.
(xv) After MAYBUS left with the deceased, a clean-up commenced at the clubhouse. When MAYBUS arrived back he told the others at the clubhouse where he had put the body. WALKER later returned the keys to the van to Doherty’s gym.
(xvi) The cleaning of the whole main area of the clubhouse and chequer plate walls near some blood-stained recliner-chairs continued in order to try and hide any trace of what had occurred. The refuse, as well as clothing, was put into garbage bags.
[3]That is, not Maybus.
[4]In some places I have substituted ‘bar’ for ‘pole’ for clarity’s sake.
I should add that you, Mr Maybus, dumped Mr Strike on the side of a road near a cemetery in Keilor East, where he was found dead the next morning by a passer-by.
I should also add, as was discussed during your plea hearing, that simply being aware of the use of the metal bar by another does not make you criminally responsible for its use; you have to agree to its use, but, your counsel acknowledged at the plea hearing that, save for the blow or blows to Mr Strike’s head with the metal bar, you accepted that you had agreed to the use of the metal bar by “another assailant.”
In relation to the theft of the motor vehicle and the arson to which you, Mr Maybus, have also pleaded guilty, your summary of agreed facts states, relevantly:[5]
[5]Maybus summary of agreed facts, [41]-[46].
41. At approximately 11.39pm on Sunday 25 May 2014 the Metropolitan Fire Brigade were called to a fire in Cowper Street, Footscray. On arrival they located the Doherty’s Gym Ford Transit Van on fire and completely alight. The van was completely destroyed as a result of the fire.
42. The owner of the van, Tony DOHERTY, had last seen the van the previous day, Saturday 24 May, between midday and 3pm when he had parked it in the gym car park.
43. The van was insured for third party property damage only. The theft and fire of the van were not covered by the insurance policy.
44. The van was stolen by MAYBUS with the assistance of Matthew GRECH and Robbie RUSBHY. The night after the assault on STRIKE at the clubhouse which caused STRIKE’s death MAYBUS contacted GRECH and asked GRECH to assist him with an ‘insurance job’.
45. They, along with another associate, Robert RUSHBY, attended in the vicinity of the Brunswick clubhouse. MAYBUS and GRECH went to the gym car park and MAYBUS stole the Doherty’s Gym van whilst GRECH kept watch for anyone approaching. To do this MAYBUS “hot-wired” the van with a screwdriver. (Charge 2 – Theft)
46. MAYBUS then drove the van, with GRECH in it, to Cowper Street, Footscray where MAYBUS set fire to it. RUSHBY, who had followed the van to Footscray, then collected MAYBUS and GRECH and drove them home. (Charge 3 – Arson)
Objective Seriousness
Before turning to the summary of agreed facts for Mr Walker, there are a number of matters in your summary of agreed facts, Mr Maybus, which I wish to highlight as they bear upon my assessment of the objective seriousness of your offending.
First, your victim was substance affected and obviously vulnerable. The summary says he was “mumbling and incoherent.”[6]
[6]Maybus summary of agreed facts [48](ii).
Second, you locked the door of the clubhouse once Mr Walker dragged Mr Strike inside. I infer from that act, and your actions soon after, that you anticipated that Mr Strike was about to or likely to be given a hiding, and you did not want him escaping or anyone intruding.
Third, you threw the first punch. The relevant portion of the summary says that you “punched the deceased hard with a fist to the right cheek” and that “the deceased’s hands were by his side at the time”. Mr Strike was not showing any aggression towards you and the others when you threw that first, hard punch.
Fourth, you and Mr Walker jointly assaulted him, intending to injure him. The fact that it was an assault in company with the intent to injure are aggravating factors.
Fifth, although, according to your summary of agreed facts, you did not use a weapon, or instigate the use of the metal bar by another, you were a party to blows that were inflicted on the victim’s body with that bar, save for the blow or blows to the head.
Sixth, the joint assault on Mr Strike inside the clubhouse was a sustained attack. This was not a one punch killing. Your counsel took issue with the prosecution’s submission that you participated in a “protracted” attack on Mr Strike. Although I cannot say exactly how long you participated in the physical assault on Mr Strike which, according to the summary, lasted “some minutes”, it is clear from the summary that yours was not a momentary involvement. You agree that Mr Strike was struck to the body with the metal bar whilst you were continuing to assault him.[7]
[7]Ibid [26](ix).
All manslaughters are very serious offences, because they involve the taking of human life. Your counsel submitted that your offence falls within the mid-range of manslaughters because the attack was not premeditated, you did not use a weapon, you did not instigate the use of a weapon by another assailant and the agreement to which you were a party was an agreement to injure, not to seriously injure or worse. The prosecution submitted that your offending falls in the high end of the range of manslaughters. I find, having regard to the fact that the violence inflicted on Mr Strike was not pre–planned to any significant extent and did not, on the agreed facts, involve an intention on your part to inflict serious injury, that this manslaughter falls in the mid-range but at the upper end of the mid-range, for the reasons which I have highlighted above.
Walker summary of agreed facts
I turn now to the summary of agreed facts for you, Mr Walker. It is based largely on the account given to police by Mr Girgis, an account which I reiterate Mr Maybus does not accept and which the prosecution does not rely on as against him. Mr Walker, your summary of agreed facts states, relevantly:[8]
[8]Walker summary of agreed facts, [48].
(i) WALKER, hearing a commotion outside, went to the side door. The deceased was seen on internal CCTV footage by GIRGIS hunched over near the dog.
(ii) WALKER opened the door and asked the deceased what he was doing. The deceased was mumbling and incoherent. He mentioned the Dandenong Chapter of the Bandidos. The voices of WALKER and the deceased became louder. The deceased moved towards WALKER.
(iii) WALKER grabbed the deceased and dragged him inside the clubhouse. The door was shut and latched. A further loud conversation ensued where the deceased mentioned a bombing at the Dandenong chapter of the Bandidos and that he knew Michael BOGOVIC, an ex-Bandido. He mentioned BOGOVIC by name.
(iv) MAYBUS, who was standing behind WALKER, punched the deceased hard with a fist to the right cheek. The deceased’s hands were by his side at the time. Following the punch the deceased put his hands up to defend himself.
(v) WALKER, an ex-boxer and body builder, then punched the deceased multiple times to the face and chest.
(vi) GIRGIS, who knew BOGOVIC, went to a room in the premises, called the ‘church room’, and attempted to call BOGOVIC, the first of numerous attempts by GIRGIS that evening to speak to BOGOVIC about STRIKE.
(vii) Whilst in the ‘church room’ GIRGIS could hear a commotion consistent with an assault taking place.
(viii) In GIRGIS’ absence, WALKER continued his assault on the deceased in company with MAYBUS.
(ix) In doing so WALKER was acting pursuant to a joint criminal enterprise with MAYBUS; namely inflicting injury to the deceased in company with MAYBUS. Initially both participants were unarmed, then MAYBUS armed himself with [a bar]. During the course of the unlawful and dangerous act, MAYBUS assaulted the deceased with the bar to his limbs, bottom and torso. WALKER was aware MAYBUS was using the weapon and continued his own assault on STRIKE. This was a continuing unlawful and dangerous act which carried an appreciable risk of serious injury. It is not alleged that WALKER was ever armed during the joint assault.
(x) Pathologist Dr Dodd, can identify at least 17 areas of direct trauma inflicted by an implement such as a pole or baseball bat. Whilst Walker was not aware of how many occasions the deceased was struck, it is accepted by WALKER that the majority of these blows were struck whilst Walker was wrestling with the deceased.
(xi) When GIRGIS returned to the main area after a short time had passed, he observed tables and chairs had been knocked over. He observed “blood everywhere” including on the stage and the stripper pole. WALKER was wrestling on the ground with the deceased who was clearly injured. MAYBUS was standing nearby with a metal bar in his hands.
(xii) MAYBUS then forcefully swung the bar twice from over his shoulders and down across the back of the deceased. They were described by GIRGIS as “very hard hits”. The deceased screamed out in pain and let go of WALKER. His head and face were covered in blood. WALKER told MAYBUS to stop hitting the deceased. The deceased moved to a couch and got himself up on it. MAYBUS still had hold of the bar.
(xiii) The deceased then moved towards the side door. MAYBUS then “…loaded the bar up again over his shoulder and swung the bar very hard, hitting the guy across the left temple area…There was a big thud. It was a massive hit. It split his head open straight away.” The deceased was knocked out before he hit the ground. He hit the concrete floor and lay face down. There was blood everywhere between the [clubhouse] bar and the stage.
(xiv) It is accepted by WALKER that the deceased was catastrophically injured by this point. Dr Dodd describes STRIKE’S head injuries as catastrophic but describes death as due to head and chest trauma. Although other injuries cannot be discounted, in all likelihood the final blow from MAYBUS would have been of itself a significant contributing factor causing death. In any case, any injury or combination of injuries that caused death which were inflicted by MAYBUS occurred at a time when the joint criminal enterprise was on foot and WALKER was aware of the use of the [bar]. The liability of WALKER is put on the basis of his own acts, as described by GIRGIS, and his awareness of the use of the [bar] by MAYBUS while WALKER continued his own assault on the deceased.
(xv) After this blow WALKER got a blanket and laid it next to the side door. WALKER and GIRGIS went over to the deceased. He was moaning, in the foetal position and in much pain. The deceased was saying, “Help me.” The deceased was bleeding profusely, so much so that the source of the bleeding was obscured. It was obvious the deceased needed urgent medical attention. The decision was made to remove the deceased from the clubhouse. The deceased was carried by GIRGIS and MAYBUS and placed on the blanket.
(xvi) WALKER said he would get the Doherty’s Gym van and that someone needed to drop the deceased near a hospital. WALKER left and came back with the keys to the van. In the meantime, the deceased was lying in the foetal position on the blanket. He kept saying “Help me” and that he was cold. GIRGIS wrapped him tightly in the blanket.
(xvii) WALKER parked the van next to the side door. MAYBUS, WALKER and GIRGIS picked up the deceased and placed him in the rear of the van. The deceased wasn’t moving at all and kept asking for help. WALKER told MAYBUS to drop the deceased off near a hospital, to which MAYBUS agreed. MAYBUS drove off in the van with the deceased in the back.
(xviii) Even though GIRGIS and WALKER expected the deceased to be dropped off at a hospital it was obvious to both WALKER and GIRGIS there was a real possibility that STRIKE would die from the bashing he had undergone.
(xix) After MAYBUS left with the deceased, GIRGIS began cleaning up the blood with a towel and a mop. WALKER contacted a prospect, “Ian,” who arrived shortly afterwards. GIRGIS and Ian continued the clean-up operation. Ian went to Coles nearby and bought bleach and some “wipes”. Blood from the deceased was on tables, chairs, a couch and two recliner chairs. Both GIRGIS and WALKER had blood on their clothes. WALKER changed his clothes.
(xx) When MAYBUS arrived back he told the others present he had dumped the deceased in a park or gravel car park area in Keilor. He did not answer when asked why he did not take the deceased to hospital. He told GIRGIS that due to “heaps” of blood in the van he would take the van to a carwash to clean it.
(xxi) The cleaning of the whole main area of the clubhouse and chequer plate walls near the recliner-chairs continued in order to try and hide any trace of what had occurred. The refuse, as well as clothing, was put into garbage bags.
(xxii) MAYBUS returned and said he had washed the van out with a high-pressure hose. MAYBUS then rang Matthew GRECH, an associate of his, and directed him to attend at the clubhouse.
Objective Seriousness
As with Mr Maybus, I wish to highlight several aspects of the summary of agreed facts that applies to you, Mr Walker, as they are particularly relevant to my assessment of the objective seriousness of your offending.
First, your victim was substance affected and obviously vulnerable. The summary says he was “mumbling and incoherent.”[9]
[9]Ibid [48](ii).
Second, you personally dragged him into the clubhouse with no justification whatsoever. He may have been a nuisance, upsetting your dog and, instead of leaving immediately when you told him to go, walking towards you but it is not stated in the summary of agreed facts that he tried to assault you or anything like that. And although Mr Maybus threw the opening punch once Mr Strike was inside the clubhouse, I infer that you did not drag Mr Strike inside the club just to talk things over. You could have done that outside. You dragged him inside as you were intent on violence, away from the eyes of the public.
Third, you and Mr Maybus jointly assaulted him, intending to injure him. The fact that it was an assault in company with the intent to injure are aggravating factors.
Fourth, although you did not use a weapon, or instigate the use of the metal bar by another, you were a party to the many blows that were inflicted on the victim’s body with that bar, save for the last blow to the head. As was made plain during your plea hearing, you accept that the scope of the joint criminal enterprise to which you were a party included the use of that metal bar; that you were not just aware of its use, you agreed to its use.
Fifth, the joint assault on Mr Strike inside the clubhouse was a sustained attack. The joint attack began before Mr Girgis went into the “church room” to try and contact Mr Bogovic. It continued whilst Mr Girgis was inside the church room and was still going when Mr Girgis returned to the main area of the clubhouse.
Sixth, at the end of the attack, it was obvious to you, as well as the others, that Mr Strike was badly injured and needed urgent medical assistance. Indeed, as the summary states, “it was obvious to [you] there was a real possibility that STRIKE would die from the bashing he had undergone”[10] but you did not do what plainly needed to be done – call an ambulance. Bundling Mr Strike into the back of the van and telling Mr Maybus to drop him off “near a hospital” was, to say the least, a callous response to Mr Strike’s plight.
[10]Ibid [48](xviii).
Your counsel also submitted that your offence falls within the mid-range of manslaughters because the attack was not premeditated, you did not use a weapon, you were already engaged in the assault when another introduced a weapon and the use of that metal bar was “accompanied by an intent not possessed by” you. The prosecution submits it falls within the high end of the range. Because there was no significant pre-planning and because, on the agreed facts, yours was an agreement to injure, not to seriously injure, I place your offending in the mid-range of manslaughters but at the upper end of the mid-range, for the reasons highlighted above.
Victim Impact Statements
Victim Impact Statements were received from Mr Strike’s mother Sandra, father Robert, stepfather Peter and sister Lisa. Their great love for Michael, the devastating impact of his death on each of them personally, and on their families, and their daily struggle with grief and the senselessness of his violent death all figure prominently in each of those statements. Michael’s mother, who lost her only son, writes “Time is not healing, it just gets worse for me.”
Antecedents
Maybus’ antecedents
Mr Maybus, you have an extensive criminal history. Beginning in October 2004, when you were 17 years of age, you have amassed 75 convictions from nine court appearances. You have received fines, community based orders, wholly suspended sentences of imprisonment, a total effective sentence of 18 months detention in a youth training centre and a total effective sentence of two years’ imprisonment with a non- parole period of six months. There are 21 prior convictions for motor vehicle theft and 28 prior convictions for criminal damage, which makes specific deterrence a particularly important consideration in relation to charges 2 and 3 on the indictment, namely, the theft of the van from Doherty’s gym and the destruction of that van by fire.
Most importantly, you have prior convictions for offences involving violence against persons. At the Melbourne County Court on 18 April 2011, you were convicted of false imprisonment, intentionally causing injury, recklessly causing injury and two other offences (dangerous driving and criminal damage) and received a total effective sentence of two and a half years’ imprisonment with a non-parole period of six months (with a declaration of 12 days’ presentence detention). In sentencing you, Judge Punshon recounted[11] how, on 23 May 2010, using your car, you blocked the path of a taxi in which your current partner, from whom you were estranged at the time, was travelling. You got out of your car, smashed the rear side window of the taxi, punched your partner in the face four or five times, dragged her out of the taxi, kicked her two or three times, then forced her into your car. You drove her to your house and then attempted to drag her to your front door, punching and kicking her a few more times. Your partner suffered an asthma attack. You drove her to her place to get her Ventolin. You returned to your house and took her inside. You continued punching her to the head. At one stage you held a cushion over her face, and she thought she was going to die.
[11]R v Maybus [2011] VCC 470.
You put her in another vehicle and drove off again with her. Mid travel, she opened a door. You pulled over. When she got out and ran, you pursued her, dragged her back and head butted her, causing her nose to bleed profusely.
You then ran to a bridge and threatened to jump. Police were called. You were arrested. Your victim was taken to a hospital from which she was discharged later that day. As Judge Punshon noted, she forgave you for this appalling episode of violence and is still your partner today.
On 22 February 2013, at Sunshine Magistrates’ Court, you were sentenced to an aggregate of one month’s imprisonment, wholly suspended for six months, for two counts of recklessly causing injury and one count of unlawful assault. The offending occurred on 1 January 2012. You were with a male friend who was meeting his ex-partner at a supermarket for a “swap over” of custody of their children. Your friend confronted his ex-partner’s new boyfriend, and hit him over the head with a can. You heard the commotion, ran back and joined in, kicking the boyfriend in the head.
A little later out in the car park, your friend’s ex-partner punched your friend in the head. You again intervened, head butting her in the face. She suffered bruising and swelling to her left cheek.
You are not to be punished again for your prior convictions but they are relevant to my assessment of your prospects for rehabilitation and the weight I need to give to deterring you from further violent offending.
Maybus’ membership of the Bandidos
So too, in my opinion, is the fact that you were a member of an outlaw motorcycle gang, the Bandidos, at the time of the offending. The summary of agreed facts states the Bandidos to be an “outlaw gang”.[12] On your plea hearing, it was acknowledged that you joined the Bandidos around April 2012.[13] That you would join such an organisation not long after you were released from prison on parole in late 2011 does you no credit. I was told you joined because you were looking for companionship and brotherhood[14] but you cannot have been ignorant of the Bandidos status as an outlaw motorcycle gang, a status it takes pride in, as shown by the “1% badge” which is a noticeable part of its emblem that is prominently displayed out the front of the Brunswick clubhouse.
[12]Maybus summary of agreed facts [3], [16].
[13]The Queen v Maybus (Unreported, Supreme Court of Victoria, Justice Beale, 4 March 2016), 43.26 (‘Plea’).
[14]Ibid 44.
Your counsel submitted, having regard to your age, your plea of guilty and your completion of an anger management course in custody that your prospects of rehabilitation are reasonable. I disagree. Having regard to your offending, your many prior convictions (including priors for violence) and your membership of the Bandidos from early 2012 to at least early 2014, I regret to say that I consider your prospects of rehabilitation are poor and I consider that specific deterrence must figure significantly in the sentence I pass on you. As must denunciation of your conduct and the deterrence of others who are minded to engage in cowardly assaults on the vulnerable.
Walker’s Antecedents
Turning to your antecedents Mr Walker, you have a number of prior convictions for driving offences, drug offences and weapons offences. The only ones that I consider relevant are the weapons offences. In May 2014 at Melbourne Magistrates’ Court, you were convicted and fined in respect of two charges of possessing a prohibited weapon. Your counsel told me that you were intercepted by police whilst driving and found to have on your keychain two “Kubatons” – which are small metallic objects with a point on them. In June 2010, you were convicted and fined in respect of three charges of possessing a prohibited weapon. Your counsel told me that police located at your home a baton, taser and OC spray. I acknowledge that your criminal history is limited and you do not have priors for violence – which is a factor in your favour – but these weapons priors are a cause for concern, given the violence which you perpetrated and were a party to in relation to Michael Strike.
Walker’s Membership of the Bandidos
An additional cause for concern is your membership – hopefully former membership – of the Bandidos, which was also described in your summary of agreed facts as an “outlaw gang”. You were an office bearer in that organisation, namely Sergeant at Arms, when Mr Strike was killed.[15] Your association with an outlaw motorcycle gang is, in my view, relevant to the weight I give specific deterrence in sentencing you but I do not give specific deterrence as much weight in your case because of your much more limited criminal history.
[15]Walker summary of agreed facts, [13].
Plea of guilty
Maybus’ plea
Turning now to your pleas of guilty, Mr Maybus when you were arrested on 15 January 2015, you were charged with murder, theft and arson. You ran a contested committal, at the end of which you pleaded not guilty to all three charges. The trial was set down for February 2016. Prior to 8 February 2016, which was the day the trial was listed to commence, you gave no indication of an intention to plead guilty to any charges. No formal offers to plead guilty to manslaughter were made.
On 8 February 2016, the Prosecution dropped the murder charge against Mr Girgis and accepted a plea to a charge of assisting an offender. Mr Girgis undertook to give evidence against you and Mr Walker in accordance with a statement that he signed on that day. In Mr Girgis’ statement, he said you were the one who wielded the metal bar during the assault.
Once Mr Girgis’ statement was provided to you on 8 February 2016, your legal team enquired whether the prosecution would settle for anything less than murder and was rebuffed. However, based on Mr Girgis’ account, the prosecution accepted a plea from Mr Walker to the lesser charge of manslaughter.
You were arraigned in front of the jury panel on 22 February 2016 and pleaded not guilty to murder but guilty to theft of the van belonging to Doherty’s Gym and the arson of that van. The opportunity existed when you were arraigned on that day to plead not guilty to murder but guilty to manslaughter, even though the Prosecution were not willing to accept such a plea.
A number of witnesses were called by the prosecution in the following days, including, most importantly, Mr Girgis. In cross‑examination of Mr Girgis, your lead counsel, Mr Petrovich, made significant inroads with respect to Mr Girgis’ credibility and reliability. As a result, the prosecution sounded out your legal team as to whether you would plead guilty to manslaughter. You agreed to do so and early in the second week of the trial, on 2 March 2016, you were re-arraigned and pleaded not guilty to murder but guilty to manslaughter, which was accepted by the prosecution in the presence of the jury. The jury were discharged in relation to the murder charge.[16]
[16]See Criminal Procedure Act 2009, s 253B.
As part of the plea deal, it was accepted by the prosecution, and included in your negotiated summary of agreed facts, that you had not struck the victim with the metal bar, contrary to what Mr Girgis had said.
In written submissions, which were backed up by oral submissions, it was submitted that your chronologically late plea should “not be regarded as a plea at the door of the court”, given that, first, the Crown had earlier rebuffed your legal team’s approaches to settle the matter after Mr Girgis made his statement on 8 February 2016; second, that the matter resolved after damage was done in cross examination to Mr Girgis’ credibility and reliability; and third, that the resolution of the matter “did not include the central narrative as put forward by Mr Girgis.”
I consider that yours was a late plea to manslaughter – no formal offers to plead guilty to manslaughter were ever made prior to Mr Girgis giving evidence and, when arraigned in front of the jury panel, you did not take the opportunity then to plead not guilty to murder but guilty to manslaughter which you could have done notwithstanding that the prosecution would not have accepted such a plea at that stage – but having said that, I do not take the view that your late plea of guilty to manslaughter is insignificant.
In my view, by reason of Mr Girgis having turned Crown witness, and providing the only account of who did what behind the closed doors of the Bandidos’ clubhouse, the central issue in the trial became his credibility and reliability. There was a real possibility that the jury might reject him as a witness of truth and not find to the criminal standard that you were the perpetrator of or even a party to acts that were a substantial cause of death, resulting in you being acquitted of homicide altogether. Although the plea was late, it was entered in circumstances where I am satisfied, on the balance of probabilities, you had a viable defence to homicide and that makes it significant, as does utilitarian considerations such as the saving of time and cost and inconvenience to the community, witnesses and members of the jury. There were probably two to three weeks left in the trial when it was terminated by your plea of guilty to manslaughter.
But I am not satisfied your plea was motivated by remorse. Mr Girgis may have been damaged in cross examination but he was certainly not demolished. Indeed, as your counsel, in accordance with the rule in Browne v Dunn put his instructions to Mr Girgis, and Mr Girgis appeared to respond with genuine surprise to your version of events, his credibility in the eyes of the jury is likely to have grown. Your plea, in my view, was entered in circumstances where there was a real risk of you being convicted of murder. The resolution of the matter on the basis of self-interest, not remorse is, in my view, how things played out.
In summary, I am not satisfied on the balance of probabilities that your plea bespeaks remorse, or that you are in fact remorseful, though one, of course, hopes that you are.
Walker’s Plea of Guilty
Turning to the weight to be given to your co-accused’s plea, you, Mr Walker, were arrested and charged with murder in January 2015. After a contested committal, at the conclusion of which you pleaded not guilty, your trial for murder along with Mr Girgis[17] and Mr Maybus was listed to commence in early February 2016. On 8 February 2016, as I have said, the prosecution dropped the charge of murder against Mr Girgis who pleaded guilty to assist an offender and agreed to give evidence against you and Mr Maybus in accordance with a statement signed the same day. You then entered into negotiations with the prosecution and, based on Mr Girgis’ account, which was incorporated into the summary of agreed facts, you pleaded guilty to manslaughter on 15 February 2016, that is, before a jury was empanelled.
[17]Mr Girgis’ charge had been upgraded from assist offender to murder.
Your counsel submitted that it was “not a late plea” because the “additional evidence [i.e. Mr Girgis’ statement] provided an opportunity and a basis for Mr Walker’s role ... to be fairly presented”.[18]
[18]Outline of Plea (undated), [12]-[15].
I take the view for similar reasons as for Mr Maybus, that it was a late plea but again that does not mean I treat it as insignificant. The community was saved the time and expense of a double headed trial. Also, based on Mr Girgis’ account, and, in particular, his claim that you told Mr Maybus to stop hitting Mr Strike with the metal bar before he administered what Dr Dodd said would have been a catastrophic blow to the head, there was scope for you to argue that you were not a party to the blows with the bar, which were likely to have been the substantial and operating cause of death.
As with Mr Maybus, I am not satisfied that your plea bespeaks remorse, or that you are remorseful, although I hope that is so. Your partner’s written reference asserts you are remorseful but, in my view, having regard to the lateness of your plea and the history of this criminal proceeding against you, that is an insufficient evidentiary basis on which to make such a finding.
Personal History
Maybus’ history
Mr Maybus, I turn now to your personal history. You were born in Altona on 18 April 1987. You are now almost 29. You are the eldest of three brothers. Your childhood was difficult as your father had an alcohol problem and was violent at home, mainly towards other family members. Your parents separated when you were 13. Thereafter, you were mainly raised by your father’s mother.
Your schooling was limited. ADHD and dyslexia compounded your difficulties at school. You left during Year 8, when aged 14 years and 9 months.
You commenced a carpentry apprenticeship which you completed by the age of 23. You have worked regularly in the construction industry.
You have been in a relationship with Annie Szymanski for over 12 years. She was the victim in relation to your most serious prior conviction but, as I said, she forgave you for that. She attended throughout your trial and continues to be supportive. You have known Annie since childhood and the two of you have a child who is aged seven.
In November 2014, you suffered injuries as a result of being seriously assaulted yourself. Medical reports were tendered on the plea. It was not suggested that any ongoing medical condition arising from that assault cannot be managed in custody.[19] I will not descend into the detail of the injuries you sustained since your counsel told me that you do not want them advertised as it might work to your disadvantage in prison. However, I will say that I do not consider that the injuries you suffered will make your prison time harder than if you had not suffered those injuries.
[19]Plea, 40.11.
Several months after being taken into custody on 15 January 2015, you were placed on anti-depressants. A report from a mental health review that was conducted on 6 August 2015 was tendered on your plea. It states that, as at that date, you “presented as settled in mental state on current antidepressant medication.…No symptoms of any major clinical depression were observed. Luke said that he is sleeping and feeling [good] since he has been commenced on Mirtazapine medication.”
Walker’s History
Mr Walker, you were born on 9 April 1982 and are now nearly 34. You are the oldest of three boys. Your parents are alive but they separated when you were about 28.
You grew up in Williamstown and Hoppers Crossing. You attended Williamstown High to year 10. When you were 15 and wanting to get fit for football, you took up boxing at a gym in Hoppers Crossing. It was a sport at which you excelled and, as set out in the reference from David Hegarty, head trainer at the Tarneit Boxing Gym in Hoppers Crossing, you had a successful boxing career as an amateur and a professional. You were generous with your time and resources to junior and senior boxers and members of the broader community.
On leaving school, you completed a fitter and turner apprenticeship at Maxwell Engineering and stayed with that company for 12 years. A reference from a Gino Raunik, who has been the General Manager of that company for 30 years, was tendered on your plea. He speaks very highly of you as a person and as an employee.
You have been in a relationship with your partner, Richelle, since you were both teenagers and have one child who is aged about nine.
From 2010 onwards there were a number of family related problems that you struggled to cope with. In 2010, as I previously mentioned, your parents separated. According to Richelle’s reference, your mother‑in‑law to whom you were close, died from cancer in 2012. In 2013, Richelle broke off your relationship. She writes that you became depressed. Your counsel told me you gravitated more towards the Bandidos during this time. The offence for which I must sentence you occurred whilst you were separated from Richelle.
You and Richelle have reunited since you have been incarcerated. Your partner, father-in-law and friends, who have provided references, speak of you as a good partner to Richelle and a loving father. Your own father, and grandmother, attended these court proceedings. It is likely that you will have plenty of support from Richelle and family and friends when you are eventually released from custody.
If you end your association with outlaw motorcycle gangs, I consider that you have good prospects of rehabilitation. Your priors are limited. You have never been in custody before. You are a qualified fitter and turner with a good work history. You have family supports.
Comparable cases
Maybus’ submissions
Manslaughter is always a very serious offence but sentences for manslaughter can vary enormously, depending on the circumstances. In the Sentencing Advisory Council’s most recent Statistical Analysis of Sentences for Manslaughter, the following observation is made:[20]
Between 2009–10 and 2013–14, 89 people were sentenced for manslaughter in the higher courts. The majority of the people sentenced for manslaughter received a period of imprisonment (94%).
Total effective imprisonment lengths ranged from 3 years and 6 months with a non-parole period of 1 year and 6 months to 14 years with a non-parole period of 10 years. The most common sentence of imprisonment was 8 years with a non-parole period of 5 years.
[20]See the Sentencing Advisory Council, Sentencing Snapshot for Manslaughter: Sentencing trends in the higher courts of Victoria 2009-10 to 2013–14 (Sentencing Advisory Council, May 2015).
The appropriate sentence in a particular case has to be determined by paying close attention to the particular circumstances of that case and that offender. Sentencing statistics and comparisons with other manslaughter cases are only of limited assistance. Sentences in other cases are not precedents which must be slavishly followed.
Having said that, your legal team, Mr Maybus, provided me with a helpful table of manslaughter sentencing cases,[21] which in one respect or another, had similar features, though, it was acknowledged by both prosecution and defence, that they could not point to a case which was on all fours with your case. The sentences imposed in the cases referred to in the table varied from 11 years six months with a minimum of nine years down to eight years with a minimum of four years and six months.
[21]And copies of each case which I have read.
One of the cases in the table, R v Drummond,[22] was nominated by the prosecution as perhaps providing the most assistance. In Drummond, the accused entered a late plea to manslaughter by unlawful and dangerous act and was sentenced to nine years’ imprisonment with a non-parole period of six years. But for the plea of guilty, the sentencing judge said he would have imposed a sentence of 12 years with a non-parole period of nine years.
[22]R v Drummond [2013] VSC 104.
As regards the facts of that case, the accused and co-accused lived at the same hotel as the victim. There was an ongoing problem with human faeces being smeared around common areas and the victim, who was thought to be the culprit, was given an eviction notice. Both the accused and co-accused had consumed a lot of alcohol a day or so before the victim was being evicted. The co-accused commenced the assault and the accused looked on as the victim was bashed for about 10 minutes. There was a break and then the two accused bashed the victim for about 20 minutes. The offending was aggravated by the frailty of the victim who was also intoxicated, the duration of the assault, the fact that the accused was on a suspended sentence at the time for driving offences, the fact that it was an assault in company and occurred on the eve of the victim’s expulsion from the hotel. The accused also had three prior convictions for assault and had previously been imprisoned. Mitigating features included that the accused was intoxicated, he was genuinely aggrieved by the ongoing problem at the hotel with the smearing of faeces, the co-accused played the greater role in the bashing and inflicted the most severe injuries, the accused pleaded guilty and was remorseful.
There are similarities and dissimilarities between this case and Drummond, and the other cases I was referred to, and I derive some but limited assistance from them.
Sentence
I turn now to the actual sentences. You will receive the higher sentence, Mr Maybus, essentially because you fall to be sentenced for more offences and you have a worse criminal record, which has affected adversely my assessment of your prospects for rehabilitation. Specific deterrence has to be given greater emphasis in your case.
Just punishment, denunciation of the conduct of you both, and general deterrence are also important sentencing considerations.
Maybus’ Sentence
For manslaughter, I sentence you, Mr Maybus, to nine years’ imprisonment. This is the base sentence.
For theft of the motor vehicle, I sentence you to six months’ imprisonment. I cancel your driving licence and make an order disqualifying you from driving for two years, commencing today.[23]
[23]Sentencing Act 1991, s 89(4).
For the arson, I sentence you to 12 months’ imprisonment.[24]
[24] I note that Mr Grech received a wholly suspended aggregate sentence of six months in the Magistrates’ Court for his complicity in the theft of the van and the arson, but he played a lesser role and agreed to give evidence against Mr Maybus.
I will make the sentences on charge 2 and 3 wholly concurrent with each other – they are part of the one episode – but I consider they should be wholly cumulative on the base sentence for manslaughter. Though the property offences were committed to destroy evidence in relation to the manslaughter, they occurred the following day and are distinct offences.
Your total effective sentence, Mr Maybus, is 10 years’ imprisonment. I specify a non-parole period of eight years.
I declare that you have served 428 days by way of pre-sentence detention.
I have already made the disposal order sought by the Prosecution in relation to your Bandidos jacket. I made that at your plea hearing.
But for your plea of guilty I would have sentenced you to a total effective sentence of 12 years with a non-parole period of nine years.
Walker’s Sentence
Mr Walker, on the charge of manslaughter, I sentence you to eight years’ imprisonment with a non-parole period of six years.
I declare that you have served 428 days by way of pre-sentence detention.
But for your plea of guilty, I would have sentenced you to 10 years’ imprisonment with a non-parole period of eight years.
| TABLE A – DEFENCE TABLE OF CASES | ||||
| Case | Circs of Offending | Offender | Plea | Sentence |
| R v (Drummond | D1 (Walters) / D2 (Drummond) and V (Singer) lived at same Hotel. Ongoing difficulties between D1, D2 and V due to V’s behaviour around the hotel (defecating in public areas). As a result V was given notice of eviction. On day of Later there was a second assault which D2 joined in, which lasted around 30 minutes. Involved by punching V himself during this period. Both involved in ongoing assault, ultimately V was bashed to death. Unlawful and dangerous act on basis of assault in company, without D2 himself having murderous intent. Aggravated by - Intoxicated and frail victim; - lengthy, protracted assault disproportionate to ‘any ordinary response’ which might be expect; - Assaitance (sic) and encouraged D1; - D2 on suspended sentence at time of offence (driving offences) - Drunken assault in company; Mitigated by: - D1 played greater role in bashing; - Most catastrophic injuries caused by co-accused, not D2; - Fact that a viable defence existed; | - 46 years old - Educated to year 11 - Sexually abused as child; - Abandoned by family - Factory worker in Geelong area; | G (late) | 9yr/NPP 6 yr 6AAA = 12yr/9yr |
| R v Torun [2015] VSCA 15 | D killed V, by shooting her in the groin at close range with a sawn-off shotgun Over two days, D used gun to threaten several people. Also clashed with V several times, smashed plates against his own head, and punched a hole in the wall with his fist. C, concerned with D’s behaviour, made several ultimately unsuccessful attempts to take the firearm awa[y]. On night of offence D began waving the gun around, telling the others that it was not loaded. This was not the case. D had loaded the gun earlier, but had forgotten that he had done so due to his drug-affected state. While less than one metre away from V, D pointed the gun at her and deliberately pulled the trigger, shooting V in the groin. Immediately after the shooting, D went to V’s assistance. An ambulance was called, but D and C decided to take V to hospital themselves. Ultimately, they ended up at a service station that was next door to a police station. V taken to hospital by ambulance. Multiple bowel injuries, a fractured pelvis and massive blood loss resulting in hypovolemic shock. As a result of those injuries, V suffered from septic shock, acute kidney injury and acute cerebral oedema resulting in brain death. V died five days later, following multiple surgeries. | - Male aged 25 at date of sentence; - Good family background; - Drug use from teens; - Left school at 16; - Family support; capacity to work – work available on release; modest criminal history, including drug and weapons offences; - Current offence committed while serving CCO; genuine remorse; good rehabilitation prospects | G | 8y – NPP 4.5 y (on appeal) |
| Papadopoulos v R [2014] VSCA 63 | D lived at a boarding house with two others, V and K. This house was used by elderly Greek men and the three had lived there together for some time. The relationship between D and V was not good, with the pair regularly arguing over petty matters. Two weeks before the offence, V had put significant effort into cultivating part of the back garden, intending to plant vegetables in the area. On the night before the offence, D planted his own plants in the area which V had cultivated, angering V. On the night of the offence, V called for D to join him in the garden. D complied, carrying with him a knife approximately five inches long, which he had been using to slice and eat a pear. V and D exchanged words. The conversation became increasingly heated, with the pair shoving and punching each other. K intervened, and temporarily managed to separate the pair. However, D went to confront V again. When V took a step toward D, D stabbed V once with the knife, causing a fatal wound. | Male, aged 68 at date of appeal; Greek-born; deprived childhood; left school at 16; two children – living in Greece; conviction for murder in Greece – served 16 years in prison; limited English – isolation in prison, with little or no support from anyone outside prison; poor health; little insight into offending; limited remorse; cooperation with police | G | 11.5y – NPP 9y |
| Tiba v R [2013] VSCA 302 | When D was released from prison, he arranged to meet V (a friend he made in custody). On meeting, the pair appeared affable and they spent several hours together. Eventually V set off with D in V’s car, intending to drive D home. The pair argued over money V owed D and when the pair arrived at D’s house, D stabbed V in the chest. D then drove V’s car to Z’s house, with V’s body still inside, lying on the back seat. Z insisted that they take V to hospital. The pair set off in the direction of a hospital, but they argued before they got there, and D left the scene. V’s body was discovered in his vehicle later that night. He had a single stab wound to the chest. The following day, D fled the country, but was arrested over four years later and extradited back to Victoria. | Male, age not stated; good employment history; prior conviction for violent offence; on parole at time of offence; six year delay between offence and sentence; increased burden of imprisonment due to being held in restrictive conditions; separation from family also increasing burden of imprisonment; reasonably good rehabilitation prospects; no remorse | G | 10y – NPP 6.5y |
| DPP v Bryan [2014] VSCA 54 | In the early hours of the morning, D, who was armed with a knife, came across V and struck up a conversation with him. V was a drug user who had just been discharged from hospital and had unsuccessfully tried to find accommodation. D and V then walked to a nearby block of units, where a disagreement between the two occurred. A scuffle between the pair ensued, during which witnesses heard several thumping sounds, including one, which sounded like a head being struck against a wall. A short time later a passer-by found V lying on the footpath outside the units. He had sustained 12 stab wounds to his chest and torso, including wounds, which had penetrated his left lung and damaged his right femoral vein. These wounds were found to have caused V’s death. Subsequently, D took steps to avoid detection for the offence, including by dying his hair and putting a temporary tattoo on his cheek. Ultimately, however, D accepted responsibility for his actions. | Male, aged 31 at date of offence; emotionally immature; good character references; long history of drug abuse – poly substance abuse disorder; under the influence of “ice” at the time of the offence; remorse; prior conviction for grievous bodily harm – circumstances of offence were similar to subject offence; offending related to drug consumption; risk of reoffending dependent on ability to abstain from drug use; exemplary record in prison; reasonable rehabilitation prospects | G | Manslaughter – 8y; NPP - 4½y |
| Bedson v R [2011] VSCA 379 | D2 was brother of D1, a member of the Rebels motorcycle club. Altercation took place between Rebels and Bandidos at Geelong cup. D2 drove his car with another male to the Bandidos clubhouse, bringing with him a .22 semiautomatic rifle. There, D1 aimed the rifle at a group standing outside the clubhouse – shooting two of them. One man died the following day after a shot to the head, another man was seriously injured. D1 found guilty of murder (the shooting was captured on CCTV). Court held this was a case where “the level of harm intended by the appellant and the consequences of the actions of his brother were significant” | - 23 at time of sentence - Completed Year 12 – apprentice carpenter - Family support - Prior offending for firearms (air rifle) and drugs (cannabis) | G | 8yr/NPP 5 yr (on appeal) |
| R v Veerman [2015] VSC 193 | D (Veerman) killed V (Scanlon) on 7 March 2011. After leaving his house and apparently meeting with D, V was not seen alive again. While the circumstances of the killing were unknown, body was found 12 days later by a bushwalker. Pathologist of the view death consistent with neck compression. On plea, D accepted was the only person responsible for V’s death. No issue killing was unpremeditated, no prior animosity, that attended walking track together. What happened there unclear. Aggravating feature of hiding body and covering with branches and bark, concealing in remote location. | - 37 years old - Drug user - Difficult mental health history, including antipsychotic medication – some (albeit moderate) reduction in moral culpability - By time of sentence coping well in prison with assistance of medication - Enduring Family support | G | 9yr/ NPP 6 yr |
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