R v Wentholt
[2013] VSC 540
•17 September 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 50 of 2013
| THE QUEEN |
| v |
| LUKE JAMES WENTHOLT |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2013 | |
DATE OF SENTENCE: | 17 September 2013 | |
CASE MAY BE CITED AS: | R v Wentholt | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 540 | |
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CRIMINAL LAW – Sentence – Reckless murder – Recklessly cause serious injury – denunciation and punishment – violent criminal history – some prospects for rehabilitation – On the charge of murder sentenced to 16 years’ and six months’ imprisonment – On the charge of recklessly cause serious injury sentenced to four years’ imprisonment – Some cumulation – Total effective sentence of 18 years’ and six months’ imprisonment with a minimum non-parole period of 15 years’.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC | Office of Public Prosecutions |
| For the Accused | Mr A Trood | Turnbull Lawyers |
HIS HONOUR:
On 25 August 2012, a number of young people gathered at a house at 7 Lynedoch Avenue, St Kilda East at the invitation of one of the residents of the house. The guests were largely visitors to Melbourne and the house was used for backpacker style accommodation. It seems that there were about 12 to 15 people present throughout the evening, which began at about 6.00 pm.
Alcohol and marijuana were consumed. David Greene, a 30-year-old Dubliner, had come to Australia on a working holiday in January 2011. He lived in Perth throughout 2011 and moved to Melbourne in January 2012. He moved into 7 Lynedoch Avenue shortly after arriving here. He was one of the guests at the gathering.
You, Mr Wentholt, grew up mostly in Western Australia. You have moved around the country and you settled in Victoria a few months before this incident. You were 31 when this incident occurred. Not long before the incident, you had obtained employment at a café in Glenferrie Road, Malvern. You became friends with other employees at the café, including Shayla Pullen. In August 2012, you moved into the 7 Lynedoch Avenue house with Shayla Pullen, and she stayed with you most nights.
David Byas, another young Irishman, was also living at the Lynedoch Avenue house. He qualified as an electrician in 2009 and came to Australia, also on a working holiday, in February 2012. Through an Irish connection, he was able to secure a room at Lynedoch Avenue at about the start of July 2012. In his statement he describes all the occupants of the six-bedroom house and the friendly environment that he encountered. It seems that at any one time at least six people of various nationalities resided there and that there was a high occupancy turnover.
The evening of 25 August wore on. At about 1.00am, you were in the lounge room with other guests, who included Ms Pullen, Mr Byas, Mr Greene, Felix Herrmann, Benjamin Normand, Christine Babuczi, Anthony Scifo, Lindsay Ashton-Smith and Rowena Selwood. You advised the group that you were going to bed and asked Ms Pullen to join you. She declined, saying that she was enjoying herself. You requested that Mr Greene speak to you in the hallway area adjacent to the loungeroom. He followed you to that area. The lounge room door was closed.
Witnesses heard raised voices. You were upset with what you perceived to be an interest that Mr Greene had expressed towards Ms Pullen. They then heard loud banging. You struck Mr Greene, knocking him out. You then aggressively re-entered the lounge room. You were shouting, “What’s going on, what’s up”. You approached Mr Herrmann and kicked his face and then punched Mr Normand twice to the face, causing him to cover up. You then kicked him three or four times to the back before turning your attention to Mr Scifo. You attempted to knee him in the head after pushing him to the couch. Mr Byas intervened and attempted to stop this assault, and you pushed him to the ground.
Ms Pullen shouted at you to stop. You grabbed her and forced her towards a table, causing it to break. You attempted to knee Mr Cutrale to the head, threw a cup at him and struck him three times across the back with a chair. Mr Normand and
Mr Herrmann ran from the house in fear, as did Mr Cutrale, who flagged down a police vehicle.
A number of people remained with you in the lounge room at this stage, and Mr Greene remained unconscious in the hallway. It is clear that you were responsible for rendering Mr Byas unconscious, although the evidence is unclear as to how you did this. He was seen unconscious in the hallway near Mr Greene. One witness described you as behaving like a “crazy monster”; another said you were “off your head”.
Whilst some had fled your vicious, unprovoked attacks and were hiding from you, you proceeded up and down the hallway either kicking or stomping on the heads of the two unconscious men. Your erstwhile girlfriend, Ms Pullen, said this to police:
I don’t remember Luke hitting them with anything, he was mostly just stomping on their heads with his foot. I remember Luke saying to me, ‘If you want to fuck them, you can fuck them’ … I pushed him away from Dave to stop him stomping on his head … he turned around and pushed me into the wall and I fell to the ground. I hit my head against the wall … he called me a slut.
You stomped or kicked both men in the head many times. You did this with a bare foot. You then ran from the house and were confronted by police. You evaded them for a time and were taken by a friend to the Alfred Hospital to have a laceration to your arm treated. It is unclear how you suffered this, but I consider that it is likely that you sustained this wound during the violent rampage that I have described. There is no evidence that anyone took any hostile, aggressive action towards you at all. Internal door window panes were broken by you on this night.
Ambulance paramedics arrived and the two injured men were conveyed to the Alfred Hospital. David Greene died on 7 September 2012. David Byas was placed in an induced coma from which he slowly recovered. I should mention that the charges to which you have pleaded guilty involve only offences relating to
Mr Greene and Mr Byas. I have included a summary of your actions towards the other guests at Lynedoch Street because they are essential to an understanding of your overall conduct on this evening. I emphasise that it is not my task, nor do I sentence you, for these other uncharged acts.
You have pleaded guilty to the murder of David Greene and also to the offence of recklessly causing serious injury to David Byas. Mr Byas has made a good, if incomplete, recovery from a serious traumatic brain injury. His processing speed is still moderately impaired, however his visual, spatial and executive functions are now unimpaired. In time, it is thought that he will make a complete recovery, although I do not underestimate what has been a substantial injury that, one year on, is still manifesting symptoms significant enough to delay Mr Byas’ return to his employment as an electrician.
The prosecution put the offence of murder on a “reckless murder” basis and your counsel has indicated that you plead guilty on this basis. Whilst it is a matter for the court to determine the factual basis upon which you are sentenced, I accept that your mental state at the time that you committed the offence of murder was as follows: You did not specifically intend to kill or cause David Greene really serious injury, but you did foresee that your actions were likely to cause really serious injury to
Mr Greene and you proceeded regardless. In other words, I will sentence you on the basis that you are guilty of the “reckless” murder of David Greene. Recklessness is also an element of your offending against David Byas. You foresaw that your actions were likely to cause him serious injury but you nonetheless proceeded to do what I have described.
I observed to your counsel that for a young man, you have spent a lot of time in gaol. You have prior convictions in Western Australian, South Australia and Queensland. You have served terms of imprisonment, some lengthy, in each of those States and your criminal history extends back thirteen years. Amongst others, you have four convictions for common law assault, two for criminal damage, three for assaulting a public officer, five for possessing a weapon with intent to cause injury, and most recently in November 2009, you were convicted of robbery in company where personal violence was used. This was serious offending involving persistent and repeated punching of the female victim, the disconnecting of her phone, and ultimately her confinement in a wardrobe. You then stole her handbag. You have led a violent adult life with little regard to the rule of law or the safety and wellbeing of others. I regard the needs to deter you and to protect others from you as relevant factors in this sentencing exercise.
On your behalf, in the course of a careful plea, Mr Trood tendered letters of apology signed by you. Neither Mr Byas nor the Greene family wished to accept these letters and they are tendered as evidence of some remorse. I shall return to this aspect. In dealing with your prior criminal history, Mr Trood addressed me about your difficult childhood and early adolescence. I accept that your parents separated when you were a baby. At five, you went to live with your father in Canberra. Your mother remained in Perth. Within a couple of years, your father died. You returned to Perth to live with your mother. You and your stepfather clashed, and I accept you were dealt with violently on many occasions. You lived with an aunt in New South Wales for a year, but returned to your mother, who had moved with your stepfather to Melbourne. When you were 11, your mother divorced your stepfather, but by this stage it seems that your family were either unwilling or unable to care for you further and from about the age of 12 you were placed in Western Australian State-run youth hostels. You told your psychologist that over this period you were drugged and raped several times whilst in “care”. You responded by running away and living on the streets. There is, unsurprisingly, no independent corroboration of these attacks upon you; however, I note that the Government of Western Australia made an ex-gratia payment to you following your application under the Redress WA Scheme. I quote from a letter addressed to you from the Premier of Western Australia:
While your experiences as a child in care can never be erased we hope that the recognition of the abuse and neglect suffered during your time in care will play an important part in the healing process.
I accept, on balance, that you were repeatedly physically and emotionally abused whilst in care.
I regard your depressing history of violent crime as the predictable consequence of your unfortunate early life. You have used illicit drugs over most of your adult life, including methylamphetamine and heroin. I am told you ceased using these drugs in 2009 and it does not appear that they played a part in your offending. I do accept, however, that you had consumed a considerable quantity of alcohol before offending, and perhaps some cannabis. This may go some way to explaining your outrageously violent conduct, but does not excuse it in any meaningful way.
Your solicitors engaged Dr Aaron Cunningham, a forensic psychologist, to provide an opinion to this court. He has seen you twice recently. He has diagnosed you as having a borderline personality disorder and states that you present as institutionalised. You are not mentally impaired and are of average intelligence. As a result of the long periods that you have spent either in care, in youth detention or in prison, you have an impaired ability to live independently in the community. Dr Cunninham’s report will be placed on file and provided to the Parole Board in whatever future form that Board takes.
No Verdins considerations are pressed by Mr Trood. He relies on Dr Cunningham’s opinion for different reasons. It is evidence, so Mr Trood argues, that suggests that, despite your prior history, you have reasonable prospects for rehabilitation and that you are remorseful for your actions.
I accept that your prospects for rehabilitation are better than your criminal history suggests. Dr Darren Russell is a medical practitioner in Queensland. He oversaw your treatment for hepatitis C whilst you were in prison at Mareeba. This is a protracted and unpleasant six month course. After you were successfully treated, in a reference he describes you as acting as a peer mentor for other inmates undergoing this treatment. You have remained in contact with him, and I quote from Dr Russell's letter:
… I have known Mr Wentholt for a couple of years prior to him committing his crimes, and have come to like him and feel that he has potential and is worthy of support despite the nature of his crimes.
Since your arrest, you have spent your time productively in custody. You have completed various courses, and I consider that you have some prospects for rehabilitation. I take that into account when fixing both the maximum and minimum terms.
You are entitled to a sentencing benefit from your pleas of guilty. You have saved the community the considerable time and expense of a criminal trial. Mr Rochford SC, who prosecutes, accepted that the plea came at a relatively early stage. I am also prepared to infer that you have some remorse for your actions. In part, I draw this inference from your plea of guilty, in part from Dr Cunningham’s opinion and in part from Dr Russell’s testimonial.
I have listened to and read the statements of those affected by your crimes. David Greene’s family have lost a much loved young man. Their grief is compounded by the mindless violence that accompanied his death. His death was, I consider, unprovoked and totally unnecessary. I consider that the sentence must incorporate aspects of denunciation and punishment. I have already said that the protection of the community and the need to deter you from further criminality must also assume some emphasis in this sentencing exercise. I consider also that the aspect of general deterrence must assume some prominence in this exercise. Put simply, part of this sentence is designed to deter others from behaving in a similarly violent manner. Those others ought understand that long terms of imprisonment will result from this type of behaviour.
I consider that there ought be some cumulation in the sentences I impose. Mr Byas was very seriously injured, and although he is making a steady recovery, a year down the track he is still not back at work. I also have considered and applied the principle of totality.
Balancing these competing sentencing considerations as best I can, I sentence you as follows: Stand up please, Mr Wentholt.
Charge 1On the charge of murder, I sentence you to 16 years’ and six months’ imprisonment.
Charge 2On the charge of recklessly causing serious injury, I sentence you to 4 years’ imprisonment.
I order that two years of the sentence on Charge 2 be served cumulatively on Charge 1.
That means that aggregate head sentence is 18 years’ and six months imprisonment.
I order that you serve a minimum of 15 years before becoming eligible for parole.
I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty I would have sentenced you to an aggregate sentence of 21 years’ imprisonment with a minimum term of 17 years and six months.
I declare that 388 days including this day have been served by way of presentence detention.
You may be seated, Mr Wentholt.
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