The Queen v Lindholm [2019] VSC 720 (7 November 2019)

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THE QUEEN

v

ROBYN LINDHOLM

JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2019
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	R v Lindholm
MEDIUM NEUTRAL CITATION:	[2019] VSC 720

CRIMINAL LAW – Sentence – Murder – Joint Criminal Enterprise – Murder of de facto husband – Upper-range example of offence – Offender maintains innocence – No remorse – Offender already undergoing sentence of 25 years’ imprisonment with a non-parole period of 21 years for subsequent murder – Serious violent offender – Principle of totality – Good prospects of rehabilitation – Sentenced to 28 years’ imprisonment – 14 years concurrent – New non-parole period fixed of 30 years’ imprisonment – Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 – Postiglioni v The Queen (1997) 189 CLR 295 – Sentencing Act 1991, ss 6D, 6E, 14.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms C Parkes	Office of Public Prosecutions

For the Accused	Mr J Kelly SC with Mr P Bloemen	Leanne Warren and Associates

1 Robyn Lindholm, after a lengthy trial, you were convicted of the murder of George Templeton (also known as George Teazis) on 3 May 2005. The maximum penalty for murder is life imprisonment.

2 The evening of 2 May 2005 was a special occasion for George, your de facto husband. He planned to mark the anniversary of his father’s death by drinking Metaxa brandy, a favourite of his father’s.^[1]

3 This was something George did annually, as you knew, having been George’s partner for approximately seven years. Indeed, at George’s specific request you had purchased the bottle of Metaxa for him.^[2]

4 George was clearly looking forward to the occasion. At work on 2 May 2005, he told his brother Nick that he had a bottle of Metaxa and that night was “planning on putting a big chunk in it.”^[3]

5 You and your close friend, Matilda Burke,^[4] prepared the dinner that night for George, at your rented home at 13 Tambo Avenue, Reservoir. Also present were Ross, George’s teenage son, who had been living in the bungalow at the rear of the property for about six months, and Nathan Morris, George’s employee in his carpet laying business. Ross and Nathan ate their meal in the bungalow, where they were playing Xbox.

6 During the evening, George telephoned his brother Nick twice. By the second phone call, Nick could tell that George was “well and truly”^[5] inebriated.

7 Ross formed the same impression when his father went outside to say good night to him in the bungalow. George stumbled up the steps of the bungalow and Ross said to him “You’re drunk” or “You’re wasted”.^[6]

8 After dinner George relaxed on the three-seater couch in the lounge room. So did you and Matilda, on either side of him. As well as drinking Metaxa, the three of you were smoking cannabis.

9 By late in the evening, George was drunk, possibly stoned and certainly vulnerable.

10 At that point, you and Matilda made out that you were going to Matilda’s place nearby to give her teenage son some money for his school lunch the next day. This was a ruse. Matilda knew it was a ruse but she did not know the full extent of it. She thought your objective was simply to get out of Tambo Avenue to rendezvous with your lover Wayne Amey, with whom Matilda knew you had been having an affair for some time.

11 You drove to Matilda’s place where, according to Matilda, you received two mobile telephone calls, one whilst you were in the driveway and the other whilst you were sitting around in Matilda’s room. Matilda thought that you took both calls on your second mobile phone that she had seen Wayne Amey give to you. To Matilda’s surprise, after the second phone call, in which Matilda overheard you say not much more than “OK”, you said you wanted to go back to Tambo Avenue.

12 When you got there, George was gone and so was his Rodeo ute. There were no signs of a break-in. He had just disappeared.

13 You confided in Matilda, which was eventually to be your undoing, that Wayne had “paid somebody to help him get rid of George”^[7] and that that somebody was a “nasty piece of work”.^[8] You also told Matilda to stick to the story, that the two of you just went out to give Matilda’s son some money.^[9]

14 At 2:43am on 3 May 2005, call charge records indicate that you received a text message from George’s mobile phone, but I find that was all part of the ruse. The text message — which went something like “Got problems, need a lift, will call soon”^[10] — was sent by a person unknown (possibly Wayne Amey) to make it look like George was still alive and attending to his own affairs.

15 I cannot say whether George was murdered at Tambo Avenue or simply assaulted there and murdered elsewhere. Whilst investigators later found some blood stains on the couch and surrounds which matched George’s DNA, that was equally consistent with him being overpowered there and murdered elsewhere.

16 Neither can I say how he was murdered or what happened to him after his death. But the jury’s verdict means that they accepted that George was murdered pursuant to a joint criminal enterprise to which you were a party.

17 George’s body has never been recovered. Whilst evidence was adduced during the trial that you admitted to others that his body was disposed of in Port Phillip Bay or at sea, there is no certainty about this and you have refused to shed any light on the subject. Indeed, you maintain your innocence. Your pretence, which began on 3 May 2005 with you telling George’s family and friends and the police that George had just disappeared, continues.^[11]

18 After George’s disappearance, you moved in with Wayne Amey at his Surrey Hills residence, and not long after that the two of you moved into his new penthouse in Hawthorn. You were enjoying the high life at the expense of your former de facto’s life.

19 It is now necessary to refer to another murder for which you are currently undergoing sentence.

20 After George’s disappearance, you and Wayne Amey were a couple for several years, but things eventually turned sour. There was a protracted property dispute in relation to a rural property that the two of you had acquired. That dispute was terminated by you orchestrating his murder on or about 11 December 2013, a murder for which you were arrested on 13 December 2013 and to which you pleaded guilty before Justice Lasry in 2015.^[12]

21 I do not intend to devote much time to the circumstances of Wayne Amey’s murder since they are discussed in detail in Justice Lasry’s sentencing reasons. Suffice to say that you asked several men with whom you had affairs to murder Amey and eventually one of them, and another male who was a friend of yours, carried out your wishes. For that murder, which Justice Lasry described as an upper range example of the offence of murder, you were sentenced to 25 years’ imprisonment with a minimum term of 21 years.

22 I need to say something now about the course of the proceedings in relation to the current offence.

23 After your plea of guilty to Wayne Amey’s murder, police renewed their investigation into George Templeton’s disappearance. A number of people with whom you had been friends or with whom you had had relationships told police that you had admitted to them that you had murdered or been involved in the murder of your former de facto. It is not necessary to go into any detail about those alleged admissions.

24 You were eventually charged with the murder of George Templeton on 31 May 2016. Your case proceeded to trial in 2018. During that trial, Matilda Burke, who for years had kept your confidence, did an about-face after a day in the witness box where her exculpatory account was vigorously challenged by the prosecutor who had called her to give evidence. She contacted police that same evening saying that she needed to make a fresh statement and, the following day, in the course of a recorded interview and a signed statement, divulged the admission you made to her in the early hours of 3 May 2005, namely, that Wayne had paid someone to help him get rid of George. As a consequence of her about-face, the 2018 trial was aborted and a new trial commenced before me in August this year.

25 Matilda Burke was the centrepiece of the new prosecution case against you and, despite her credibility being the subject of strenuous challenge, I accept the key aspects of her account, which did not lack corroboration.

26 For example, Matilda Burke said you had a long running affair with Wayne Amey which was continuing at the time of George’s disappearance. Kara Decandia’s evidence tended to confirm Burke’s evidence in this regard. Decandia, who had also been a close friend of yours, testified that your affair with Wayne Amey was ongoing during the six or seven months in 2004 when she was living in the bungalow at 13 Tambo Avenue.

27 Further, Decandia testified that you admitted to her that you wanted to be free of George and were planning to kill him. I found Decandia to be a credible witness, notwithstanding that I agreed to the defence request to warn the jury to be cautious about accepting her evidence.

28 I am satisfied beyond reasonable doubt that in your record of interview you lied when you said, first, that you had only had a brief intimate relationship with Wayne Amey when George was in jail in early 2003 and, second, that you did not renew the affair until after George’s disappearance. I find that those lies were told from a consciousness of guilt of your participation in a murderous joint criminal enterprise.

29 Another piece of corroborative evidence was a 2005 Claude Monet diary that belonged to you and which was found at Wayne Amey’s Surrey Hills residence when police executed a search warrant there. Immediately above the space for 3 May 2005, were drawn love hearts with arrows through them, and your nickname for Wayne Amey “Batman” (as in Batman and Robin).

30 At your plea hearing, your counsel said there were a number of matters relevant to sentencing that were in dispute.

32 Regarding the first matter, your counsel submitted that I could not be satisfied beyond reasonable doubt that you were the instigator of the joint criminal enterprise since Wayne Amey told one of your former employers Maxine Fensom in 2003 that he wanted to kill George because of the way George had been treating you. On the other hand, I accept Kara Decandia’s evidence that in 2004 you admitted to her that you were planning to kill George alone. I cannot say who was the instigator of the joint criminal enterprise, but I am satisfied beyond reasonable doubt that at the very least you were an equal and willing partner in the plan to murder George. Had you not been, I consider it highly unlikely that George would have “disappeared” in the circumstances he did.

33 Regarding the second matter, I cannot say how long there was a settled agreement between you and Wayne Amey to murder George but I am satisfied, as I have indicated above, that for some time the two of you had been contemplating killing George. I am satisfied that the two of you agreed on exploiting the opportunity presented by George’s Metaxa-fuelled celebration of the anniversary of his father’s death.

34 Regarding the third matter, George may not have been murdered in his own home. But at the very least he was assaulted and abducted from there for the purpose of murdering him.

35 Regarding the fourth matter, I have no hesitation in finding that your deception of the Teazis family regarding George’s fate has been protracted. The fact that you ceased contact with them in 2005 did not mean your deception was spent.

36 Regarding the fifth matter, I consider yours to be an upper range example of the offence of murder. It was a murder that was clearly premeditated, that involved another or others, and most importantly the victim of your joint criminal enterprise was your de facto husband of seven years’ duration. Whatever difficulties there may have once been in your relationship, I am satisfied on the evidence that when George’s son was living with you for approximately six months leading up to his murder, George was settled, working hard in his carpet laying business and was not mistreating you. Indeed, the evidence indicated that George had settled down after getting out of gaol in early 2003.

37 I received victim impact statements from George’s son Ross, his brothers Nick and John and John’s wife, Deborah.^[13]

38 Understandably, the murder of George Templeton has had, and continues to have, a profound impact on his family.

39 Their grief is compounded by the uncertainty as to how George was killed, how much he suffered and what was done to and with his body afterwards.

40 No sentence that I impose can undo the far-reaching and terrible consequences of your crime.

43 You were raised in Glen Waverley by your parents, Raymond and Dorothy. You have an older sister. Your childhood seems to have been a happy one. Whilst your parents had to be careful with their money, you did not want for affection from your parents and they would go without to ensure your material needs were met.

44 Your father, Raymond, passed away earlier this year. Your mother, Dorothy, is 81 years’ old, and you remain close with her. Indeed, she supported you throughout your trial. She continues to visit you twice a week in prison, where you have been since you were first taken into custody on 13 December 2013 in relation to the murder of Wayne Amey.

45 You were educated at Kilvington Baptist Grammar Primary School and Malvern Girls Secondary School, where you completed Year 12 and did reasonably well. You were a keen horse rider and ice-skater — indeed, at 13 years of age you won the Victorian Championships in ice skating — however, your sporting career ended with a serious back injury when you were 16 years old.

46 You commenced a Bachelor of Applied Science at Monash University with a view to transferring into veterinary science afterwards. However, after 18 months or so, you failed to get the requisite marks for the course transfer. You then commenced a course in animal husbandry at TAFE, but did not pursue a career in that field.

47 You left home at about 19 and initially worked as a personal assistant to a car salesman. You then went on to work as a hostess and barmaid at Crown Casino on and off for approximately 10 years. Eventually, through your contacts with certain patrons at Crown, you went on to employment as an exotic dancer, including for Maxine Fensom who gave evidence at your trial. You worked as an exotic dancer until about 2010. In 1993, at the age of 20, you took on a large mortgage, purchasing a 73-acre property at Glenhope to further your interest in horses.

48 As regards your relationship history, you commenced a relationship for the first time at 19, and that was a relationship that endured for three years with a male who was considerably older than you. You then commenced a relationship with a car salesman which lasted for approximately two years. The separation was amicable and you remained friends. You then commenced a relationship with the notorious gangland figure Alphonse Gangitano during your early twenties. You met him during your employment at Crown Casino. After that relationship ended, you commenced a relationship with George Templeton, a relationship that endured for some seven years. There was some evidence at your trial of episodes of domestic violence perpetrated against you by Templeton, however, your counsel conceded that your relationship was not characterised by domestic violence in the lead up to Templeton’s disappearance.^[14]

50 Subsequent to this offence, you were of course convicted of the murder of Wayne Amey, but in my view there are no other relevant matters.

51 The conviction for the Wayne Amey murder means I must sentence you today as serious violent offender, making protection of the community the principal purpose of the sentence I impose.

53 Since you were taken into custody in December 2013, you have engaged in education and employment opportunities available to you in prison and have remained drug free. I have received three character references, which tell of the efforts you have made at rehabilitation.

54 The first, from Mr Steven Foley, an Education Officer at the Dame Phyllis Frost Centre (‘DPFC’) reports that you have worked consistently in the Horticulture Department there since 2014. Mr Foley states that you are committed to your work, you are a team leader in most large scale landscaping projects in the prison and you are a mentor to new prisoners employed in horticulture. Mr Foley reports that you have had no issues with fellow employees and officers and that you have attained the position of “status level one billet”, which requires you to be incident free and drug free.

55 The second reference is from Dr Marietta Martinovic of RMIT University, who runs two courses at DPFC, the “Inside Out Prison Exchange Program” and the “Think Tank” program. Dr Martinovic says that you have demonstrated “outstanding dedication, participation and academic achievement” in those programs. You have also availed yourself of programs available to you at DPFC, including the “Talking Change Program for Women” and the “Making Choices for Women” program.

56 The third reference, written by the mother of a fellow inmate of yours at DPFC, speaks of the support you provide to her daughter in prison.

57 Based on my review of this material, I agree with your counsel’s submission that during your incarceration, you have been a model prisoner and have attended to your rehabilitation.

58 I encourage you to continue in the same vein in order to make something positive out of your life, even though it must necessarily be lived for many years in prison.

59 I consider that, having regard to your conduct whilst in custody, the lengthy sentence you must still undergo for your crimes and the fact that you will be much older when you are released, you have good prospects of rehabilitation, even though you continue to deny your guilt of the current offence.

60 In submissions on applicable sentencing principles, your counsel, mindful of the sentence you are already undergoing, emphasised the principle of totality. He referred me to two High Court cases, namely, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and Postiglioni v The Queen [1997] HCA 26; (1997) 189 CLR 295.

61 I have had regard to both aspects of the principle of totality: that is, my duty to ensure that the aggregate of the sentences imposed by Lasry J and me is ‘just and appropriate’ and does not exceed your overall culpability and my duty to avoid a ‘crushing sentence’.

62 As previously mentioned, you fall to be sentenced as a serious violent offender.^[15] The prosecution do not seek the imposition of a sentence “longer than that which is proportionate to the gravity of your offence considered in the light of its objective circumstances”^[16] but, in determining the length of your sentence, I am obliged to regard the protection of the community as the principal purpose for which the sentence is imposed.^[17]

63 There is a statutory presumption of cumulation when sentencing a serious violent offender already undergoing another sentence, as you are, but that presumption moderates rather than displaces the operation of the principle of totality.

65 I sentence you to 28 years’ imprisonment for the murder of your former de facto George Templeton.

66 I order that 14 years of that sentence be concurrent with the sentence you are currently undergoing.

67 Justice Lasry fixed a non-parole period of 21 years when he sentenced you to 25 years’ imprisonment for Wayne Amey’s murder. I am obliged to fix a new non-parole period.^[18] Accordingly, I fix a new non-parole period of 30 years’ imprisonment, which means you will be 71 when you first become eligible for parole and 80 when the head sentence expires.

68 I make no declaration of pre-sentence detention as you were undergoing the sentence imposed by Justice Lasry when charged with the current offence.

^[1] Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 8 August 2019) 92 (evidence of Ross Teazis).

^[2] Transcript of Record of Interview of Robyn Lindholm dated 16 August 2005, Q&A 454, Q&A 469.

^[3] Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 9 August 2019) 155 (evidence of Nick Teazis).

^[4] Pursuant to the proceeding suppression order made by Dixon J on 15 May 2018 under s 17 of the Open Courts Act 2013, the identity of this witness has been anonymised in the published version of these reasons to protect the safety of the witness.

^[6] Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 8 August 2019) 94 (evidence of Ross Teazis).

^[7] Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 13 August 2019) 245 (evidence of Matilda Burke).

^[10] You showed the text message to Nathan Morris when he returned to Tambo Avenue about 7am on 3 May 2005 to resume working with George. See Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 9 August 2019) 273 (evidence of Nathan Morris). On 4 May 2005, when asked to show the text message to police, you said you must have accidentally deleted it.

^[11] In your formal statements to police and in your record of interview, you floated the possibility that George may have been killed by criminal elements with whom he used to associate.

^[13] As I am required to do by the Sentencing Act 1991, Part 3, Division 1C, I disregard those parts of Deborah’s victim impact statement which relate solely to the impact of the murder of George Templeton upon others in the family, as opposed to her.

^[14] Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 24 October 2019) 20 (J Kelly SC).