D P P v McDonald
[2000] VSC 34
•9 February 2000
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION Do not Send for Reporting Not Restricted
No. 1444 of 1999
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHARLES ANTHONY McDONALD |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 9th February 2000 | |
CASE MAY BE CITED AS: | DPP v Charles Anthony McDonald | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 34 | |
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Criminal law – sentencing – murder – plea of guilty – enforcement in drug trade – considerations applicable
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Sexton | OPP |
| For the Accused | Mr I. Crisp | Doogue & O'Brien |
HIS HONOUR:
Mr McDonald, you have pleaded guilty to the murder at Nerrina near Ballarat on Thursday, 24 September 1998 in the early hours, of Royston Charles Jones. At the time of his death Mr Jones was 24 years of age, having been born on 16 April 1974. You, Mr McDonald, were 37 years of age, having been born on 8 March 1961. You are now 39 years of age.
The deceased, Mr Jones, was living at Geelong West with his de facto wife and his mother. It is said that the deceased was active in the drug trade in the Geelong area. Certainly, Mr McDonald, you were an active drug trafficker in the Geelong area.
About a month before the death of the deceased you had commenced living with your co-accused, Ms Bruvels, at premises in Wilson's Road, Whittington. In early September 1998, you, Mr McDonald, answered the door at about ten o'clock one evening. When you opened the door you were confronted by two masked intruders, one of whom was armed with a sawn-off shotgun. You were forced into the premises, which was a flat, and the intruders pointed a shotgun at Ms Bruvels and at her five year old son. You were forced into the main bedroom and your hands were tied behind your back and you were made to lie face down with a blanket over your head. You were assaulted. Demands were made upon you for drugs and cash. It is said that approximately $20,000 worth of drugs and cash were stolen from the premises. You and Ms Bruvels were not aware of the identity of the two intruders. The crime was not reported to the police as it related to the drug trade, an aggravating factor of this crime before me and to which I shall refer again.
Through your associates in the drug trade you and Ms Bruvels commenced to make your own inquiries in an endeavour to identify the two persons who had entered your home. You told all those who would listen that once the identity of the assailants was known to you, swift retribution would be inflicted upon those responsible for the attack. One William Angus, a long time associate of yours, by telephone spoke to you just prior to 24 September 1998. In that telephone conversation you informed Mr Angus that you now knew who was responsible for the run through of your premises earlier in September.
On the night of Wednesday 23 September 1998 at your flat at Whittington a number of persons attended. There was yourself and Ms Bruvels who lived at the premises. There was also Simon Grandison, Barry Daniel and Ricky Moat. (I have previously sentenced each of those three men for the manslaughter of the deceased, they having pleaded guilty to manslaughter before me and having been sentenced on 10 June 1999.) Pizzas were ordered for all of you and drugs, particularly amphetamines, were consumed. The purpose of the meeting, which was arranged by you, was to plan the kidnap of the deceased, Mr Jones, to ascertain the identity of who was said to be his principal or accomplice in the aggravated burglary upon your premises earlier that month and to punish the perpetrators. You were the organiser of the criminal action.
That night the deceased was at his home in Geelong West with his wife and his mother. About 11.00 p.m. the telephone rang and the deceased answered it and had a short conversation. He then informed his mother that he would be going out for a while but before he had left Mr Daniel knocked on the front door and engaged in a conversation with the deceased. He sought to lure Mr Jones into a trap which you had set, Mr Daniel pretending to be a friend of Mick the boxer and having been sent to buy some drugs. Mr Jones was unconvinced of Mr Daniel's approach and ordered him to leave. Mr Jones then left the premises, attended to a drug transaction away from the premises and at about midnight returned to his home. The persons in your party were strategically placed, at your direction, in order to effect the capture of Mr Jones. Mr Jones got out of his vehicle outside his home but was immediately set upon by yourself and Mr Grandison and Mr Moat who had been waiting, watching for his return. Nearby Ms Bruvels was keeping watch and keeping in touch with you by mobile phone. The deceased was led away at gun point by you to a paddock area which runs close to his premises off Wardell Road. In the paddock area during a struggle the deceased's baseball cap and jacket were dislodged and were later found by an officer attached to the Geelong CIB at that place. You handed the gun to Mr Moat to hold to the head of the deceased. You went and got your vehicle and drove it back to the area where the deceased was being held. He was then placed violently and forcibly into the rear of the van and Mr Grandison and Mr Moat remained in the rear of the van with the deceased throughout. Mr Daniel sat in the back seat. You drove the vehicle. All of you except Mr Daniel wore balaclavas. Mr Grandison applied duct tape to the hands and legs of the deceased at your direction. Ms Bruvels, who had been waiting nearby as part of the operation you planned and effected, was met and sat in the front seat next to you. Mr Jones was assaulted as he was being driven around the Geelong area in order to ascertain the name of his accomplice or principal, you believing that he was one of the persons who had been involved in the run through at your premises earlier that month. In the van you threatened Mr Jones with secateurs, saying you would cut his finger off, in order to make him talk. Mr Jones said that the person was "Scottie" and gave an address in Geelong West. Your party attended that address. Mr Daniel again went to act as a lure, to the front door of Scottie's premises. Although the lights were on and the television was on, no-one answered the door. Ultimately, your group left there and, with you driving, drove some 90 kilometres from Geelong through deserted countryside to the outskirts of Ballarat at Nerrina. The deceased was assaulted and threatened violently during that drive. When you all arrived at Nerrina the deceased was removed from the van and was led into the bush by you and Ms Bruvels but with Mr Grandison accompanying you. In a gully close to where the van was parked the deceased was repeatedly assaulted in a most violent manner by you and Ms Bruvels. He was also assaulted by Mr Grandison. The deceased was struck with an aluminium baseball bat by you. He was repeatedly bashed and kicked by you. Ultimately, after you left, he died from the vicious assault you had imposed upon him. You had left him to die. You went to Mr Daniel's premises in Ballarat where you changed your clothes and then you all attended at the Casino in Melbourne in order to give yourselves a previously arranged false alibi for the activities that night. You all returned to Geelong by mid-morning on Thursday 24 September 1998.
At about 4.30 p.m. on that Thursday afternoon, a person walking his dog in the bush area off Nerrina Road, found the deceased's body lying on its back in the creek bed. The police were notified and the area was isolated by police. The Homicide Squad was informed and immediately attended. Inquiries were forthwith commenced into the circumstances surrounding the death of the deceased. A preliminary examination was conducted at the scene. Tyre marks were identified and traced. The surrounding bush area was searched and a roll of discarded tape was found.
Media releases were made on 25 September 1998, the next day, by police, as a consequence of which anonymous information was received alleging that you were involved in the death of Mr Jones. Thereafter, the focus of the investigation centred upon you and also Ms Bruvels. On Friday, 2 October 1998 a warrant was executed at your home. You and Ms Bruvels were there located and placed under arrest. You were taken to the Geelong Police Station, where you were both interviewed in relation to the death of Mr Jones. You falsely denied any knowledge of Mr Jones or of the events of 23 and 24 September 1998. At the conclusion of the interview you were charged with the murder of Mr Jones and remanded in custody, and Ms Bruvels was released.
The next day, 3 October 1998, you made an approach, from the police cells in Geelong where you were, to the investigating officers and volunteered to be re-interviewed. You were re-interviewed, and you gave an account of how the kidnap and killing of Mr Jones was effected by yourself, Mr Moat and Mr Anderson, and at a later stage you also implicated to a lesser extent Mr Daniel. That interview commenced at 9.40 p.m. I have studied the video of it and of the interview the previous day. At the commencement of that second interview, at question 23 you stated: "I want to come clean", and you persisted in that right to the end, where at question 934 you said: "I've got to come clean". But throughout it you falsely denied the part of Ms Bruvels. You said that she did not leave Geelong on the fatal night. I have observed your demeanour on the video and I am satisfied, despite your untruthfulness about Ms Bruvels, that it does indicate some remorse by you for the consequences of your own actions. You said that there was no intention by you to kill the deceased at any time, and the intention was to "bash" the deceased and to "scare" him: see especially question 942.
On 9 October 1998, finally, Ms Bruvels was arrested at Whittington and conveyed to the Geelong Police Station, where she was re-interviewed and then charged with the murder of Mr Jones.
A post-mortem of the body of the deceased by an eminent pathologist, Dr Malcolm Dodd, on 20 September 1998 revealed that the deceased had sustained a number of injuries to the head, face, limbs and torso. The deceased had duct tape around his mouth and a length of tape around his left wrist. It was the opinion of Dr Dodd that Mr Jones had died from blunt head trauma and inter-cranial haemorrhage, and he also had aspirated blood. There was evidence of neck compression, but the hyoid and thyroid cartilages were intact. Dr Dodd observed that there were up to 30 different injuries to the body of the deceased. There were 18 separate injuries to the head, and 12 to the body. There was also internal bruising of the deceased. It was Dr Dodd's opinion that the injuries sustained by the deceased were consistent with a minimum of 16 individual and severe blows having been struck to the deceased. A number of those were consistent with the deceased having been struck with a baseball bat or the butt of a gun. The deceased suffered a fractured skull, fractured face and two fractured ribs. There were defence injuries to the back of both of his hands.
The prosecution says in this case that the others than yourself were not part of a plan to kill but were part of a plan to assault Mr Jones severely, the assault at Nerrina in the gully in fact resulting in the death of the deceased. The prosecution says that your actions at Nerrina were a grievous assault, which was sustained and deliberate, with the intent by you to do really serious injury, and which in fact resulted in death.
A committal proceeding commenced in the Geelong Magistrates' Court on 3 May 1999 and proceeded for four days. The five persons then charged with murder were yourself, Ms Bruvels, Mr Grandison, Mr Daniel andMr Moat. At the end of the fourth day the committal adjourned and the three men, Mr Grandison, Mr Daniel and Mr Moat made further statements to the police setting out what they said was their part and your part and Ms Bruvels' part in the killing of the deceased. They came before me, pleaded guilty to manslaughter and on 10 June 1999 were sentenced by me. I have observed each of them and have examined their interviews, statements and videos, and find that each of them has substantially told the truth about what occurred on 23 and 24 September 1998.
The committal then resumed on 24 June 1999 and each of those three gave evidence at the committal consistent with the statements they made to the police and with their pleas of guilty to manslaughter before me. I have read the cross-examination of each of them conducted on your behalf at the committal proceedings. You pleaded not guilty to murder at the end of the committal, as did Ms Bruvels.
The matter was then listed for trial due to commence on 31 January of this year. In the interim you instructed your counsel that you wished to plead guilty to murder, but on the basis that the prosecution accepted that Ms Bruvels was guilty only of manslaughter. In fact the prosecution has proceeded before me on the basis that you are guilty of murder and that Ms Bruvels is guilty of manslaughter. She will be sentenced by me shortly in relation to that offence.
I have had the benefit of a full plea on your behalf and have heard oral evidence and received exhibits on your behalf. There are a number of factors in your favour. First, you have pleaded guilty to murder and you do have remorse. I consider your protectiveness towards Ms Bruvels is not inconsistent with remorse on your part for the death you caused of the deceased. Your plea of guilty is significant in itself, it does betoken remorse, and it has spared the family of the deceased the further trauma of a trial with all that that would have entailed. Next, it was not the plan to kill the deceased. Third, you have had a most difficult childhood and upbringing. Later you became addicted to drugs, especially amphetamine and cannabis. Next, you have no history of convictions for violence. You have 17 prior convictions for relatively minor matters between June 1982 and January 1997, but none between 1983 and 1997. Further, there is only one for significant violence, a conviction for robbery on 1 October 1979 for which you were sentenced to two and a half years' imprisonment. That was 20 years ago and I consider it should not now be taken into account against you given that lapse of time. Finally, I am satisfied that you do have prospects for rehabilitation. I have read the undated report of a distinguished psychologist, Mr B.J. Healy, who examined you on 29 January 2000. You do not suffer from any psychiatric illness or psychological disorder. The exhibits tendered on your behalf demonstrate your efforts to rehabilitate yourself and I am satisfied that you do have prospects for rehabilitation.
However, this was a terrible crime. Your actions also have deeply afflicted the family of the deceased. I have read the victim impact statements, which are moving and impressive documents. Those living victims also have suffered deeply by your actions.
There are three especially aggravating elements of this offence.
The first is that the criminal conduct - the capture and assault on the deceased - was premeditated, planned and was effected like a military operation. You were the planner and you were the general directing that military operation.
Second, the deceased was subjected to a terrible ordeal of fear and suffering over a significant period of time and place and in the company of hooded men and a woman.
Third, the criminal conduct was itself in enforcement of other criminality - your drug operations. It was punishment, and a warning to others. You were a drug dealer and a stand-over man; not just a consumer. In this sentence you are not punished for being a drug dealer and a stand-over man but you are punished for the aggravating fact that this whole criminal operation which led to the death of the deceased was planned and effected as part of criminal enforcement instead of recourse to the law.
Those three matters are especially aggravating factors in this crime. You have served, Mr McDonald, 496 days in pre-sentence detention, that is since your arrest on 2 October 1998. Pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that period of 496 days as already served under the sentence I impose upon you and I so certify. Mr McDonald, for the murder of Royston Charles Jones, I sentence you to 18 years' imprisonment. I direct that you serve a minimum term of 15 years' imprisonment before becoming eligible for parole. Remove Mr McDonald.
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