Director of Public Prosecutions v Garner
[2017] VSC 685
•9 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES GARNER |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October 2017 |
DATE OF SENTENCE: | 9 November 2017 |
CASE MAY BE CITED AS: | DPP v Garner |
MEDIUM NEUTRAL CITATION: | [2017] VSC 685 |
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CRIMINAL LAW – Sentence – Murder – Spontaneous stabbing – Believed victim was paedophile – Early guilty plea – No remorse – Sentenced to 21 years’ imprisonment with 17 years non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
James Garner, on 3 May 2017, you murdered David McIntosh by stabbing him in the neck between eight and 12 times causing him to bleed to death.
The stabbing occurred at Unit 5, 42–48 Cecil Street, Fitzroy. That was David McIntosh’s home. He had allowed you to stay there over the last few months, although you were not living there on a full-time basis. The relationship between the two of you appears to have been quite good up until the night of 3 May 2017. Indeed, you appear to have been having discussions about starting a business together.
The description of events surrounding the murder are dependent upon what you have said to others about it.
At about 8.45pm on that day, you went to Unit 7 at the address, where you spoke to Craig Pearce, who lived there. He asked you what was wrong and you replied, ‘I think I’ve killed Macca.’ The two of you went back to Unit 5 and Craig Pearce found Mr McIntosh and observed the wounds to his neck and he said to you, ‘You’ve slit his throat.’ You were reported to have replied, ‘Yeah, I did. Macca asked me to do it because Macca was fiddling his daughter. Macca was a rock spider, a rock lobster.’ You left soon afterwards and Pearce rang ‘000’. At about 9.15pm, you rang ‘000’ and said to the operator, ‘He asked me to kill him.’
You were arrested at the corner of Grattan and Murchison Streets, Carlton’ at 9.21pm and you had with you a 25 centimetre black-handled knife. At the Melbourne West Police Complex your clothes were seized. When in custody, you were recorded as saying, ‘He was a rock spider. I was doing a mate a favour. I ended it and I should have chopped the body up.’
When the police examined your mobile phone, they were able to establish that you sought help from a friend at about 7.30pm and you told another friend at 7.34pm that you had killed somebody and he had asked you to do it. You repeated that comment to that friend at about 8.34pm. There were various other phone calls and missed phone calls up until the time of your arrest. It follows that you must have killed Mr McIntosh at least an hour before you went to Mr Pearce’s unit, but nothing turns on that.
When interviewed by the Homicide Squad detectives, you made a ‘no comment’ record of interview. You were charged with murder on 4 May 2017. At the committal mention on 24 August 2017, you accepted committal at this court on the basis of the hand-up brief. You were arraigned in this court on 28 August 2017 and pleaded guilty. It follows that your plea was made at the earliest possible date.
On the plea before me, the victim impact statements of Mr McIntosh’s former wife and his son and daughter were read to the court. The family relationships had been difficult, but the loss of a former husband and father and the loss of hope and reconciliation cannot be undermined. The loss of the family was even greater because of those lost opportunities. I have had regard to those moving impact statements.
Mr Marshall appeared on the plea and filed an outline of plea submissions. He submitted that there were three major matters in mitigation. They were: (a) the lack of pre-meditation; (b) the use of an opportunistic weapon; and (c) that although you immediately left the scene, you did not try to avoid your responsibility for Mr McIntosh’s death and you told a number of people what you had done. I accept those submissions and I have taken them into account particularly with regard to your early plea.
Your personal circumstances. You are 47 years of age. You were born in Coventry, England, and your family emigrated to Australia when you were eight. You have two older sisters. You had a difficult relationship with your father who was often violent towards you. You moved out of home at the age of 16 and thereafter lived with friends.
You married in 1999 when you were about 29 years of age and have a son from that marriage. You separated in 2009 and your wife and son moved to Ballarat. During the course of your marriage, you became involved in foster care and you and your wife were paid by the Department of Human Services to do that work. I did not receive much detail about that on the plea, but I accept that it exposed you to young people from dysfunctional backgrounds, some of whom were the subject of abuse involving sexual abuse.
You were seriously injured in 2002 when working as a concreter. You fractured your L4 and L5 vertebrae and were in a wheelchair for about two years. Because of that injury, your employment has been intermittent and you were unemployed at the time of these events.
After the breakdown of your marriage, there were difficulties around access to your son, which led to an interim family violence intervention order being made against you on 22 April 2014. Another consequence of the breakdown of your marriage appears to be that your mental state deteriorated and you had a number of hospital admissions and you started to abuse alcohol and illicit drugs.
In the period of 2012 to 2017 you did, at some stage, form another relationship but that also ended, and at various times during that period you have been homeless.
You also came into conflict with the law. You appeared at the Frankston Magistrates’ Court in January 2012 after having been involved in a car accident, where it appears that you had left the scene. You were convicted of driving under the influence of alcohol and other offences and released on a community correction order for 12 months with treatment and rehabilitation conditions. Then, in February 2013, you appeared before the Geelong Magistrates’ Court charged with assault with a weapon and associated charges and with the possession of cocaine. You were released on a two-month suspended sentence with an operational period of 18 months. That conviction breached your community correction order, which was cancelled, and you were fined $1000.
In January 2014, you were convicted at the Melbourne Magistrates’ Court of resisting police and fined $500.
On 24 November 2014 you were sentenced in the Frankston Magistrates’ Court for a number of offences involving breach of family violence orders, stalking, making a threat to kill and contravening your suspended sentence. You were sentenced to a total effective sentence of six months’ imprisonment. On appeal, which was heard on 25 February 2014, you were released on a community correction order for 12 months with conditions including 100 hours unpaid community work. Your sentence for breach of the suspended sentence was confirmed. You appear to have served approximately three months’ imprisonment in total at that time.
You were subsequently dealt with for two subsequent breaches of family violence orders for which you were fined, and on 21 January 2016, you were convicted of breach of the community correction order, and the order was confirmed and no penalty imposed. The order had almost run its course by that date in any event.
Although the offending was not at the higher end of the range, your prior convictions show that you have been offered many opportunities which you have not taken up. That is a matter relevant to your prospects of rehabilitation. It is also important to note that in relation to the matters directly affecting you, it is really from the period of 2012 onwards — quite late — when we are considering conduct of this kind, that your behaviour began to significantly deteriorate.
A report from Associate Professor Andrew Carroll, a forensic psychiatrist, dated 29 October 2017, was tendered on the plea. It showed that you had had a number of mental health issues over the years, but Associate Professor Carroll found that there was no evidence of a psychiatric condition having contributed to your offending. He said, ‘[I]t appears that he was significantly intoxicated with alcohol at the relevant time.’ Associate Professor Carroll did not diagnose you as suffering from any psychiatric condition.
I have outlined what you said to various people after the murder. You made ‘no comment’ answers to the record of interview. Your version of events emerges, at best, from what was said to Associate Professor Carroll, and I will set out what was said in paragraphs 129 to 140 of that report:
At interview with me, Garner denied using any cannabis or Ice in the weeks prior to the offence, although said that he was using substances from time to time in 2017 because it ‘kills the pain in my back’. He indicated that he was continuing to use alcohol and said that on the relevant day, he had drunk between three and six longnecks of beer and then his friend, Macca, ‘bought me a couple more’.
Garner said that he had met McIntosh ‘a couple of months before’ the offence. He said that he would ‘crash on his couch a couple of times a week’ and that he was investigating finances with a plan of opening a café with McIntosh. He said that he got along well with McIntosh, saying, ‘I got along with him fine, he was a very mild-mannered person’. He denied any specific arguments with McIntosh, saying, ‘He was easy to get along with … most predators are…’.
McIntosh had disclosed to Garner that he himself had been sexually abused as a child and Garner recalled thinking, ‘Something didn’t add up in his demeanour’. An associate of McIntosh’s told Garner, ‘a couple of weeks prior’ to the offence, about allegations that McIntosh had molested another person’s child. Garner said that he confronted McIntosh about this, but McIntosh denied it. Garner recalled that after that he ‘carried on cautiously’ in his friendship with McIntosh and they continued to do casual work together.
He said that on the day of the offence he had been down to the ‘social security office’ to remonstrate about his payments being cut off. He said that they had reported that it was ‘nothing to do with them’, which angered him. He recalled going back to McIntosh’s home and ‘venting about social security’ loudly, which he believes the neighbours may have mistaken for an argument.
He told McIntosh that day that he was planning to return to live on the streets, because he had no money, but McIntosh encouraged him to stay nonetheless.
He said that McIntosh then ‘out of the blue says, ‘I did touch my daughter’. When Garner asked him why he had done this, McIntosh said that he himself had been molested as a child, which Garner perceived as McIntosh attempting to justify his actions. Garner reported feeling ‘enormously angry’ in response to this.
He said that McIntosh then said, ‘I want to die …’ and Garner asked if he had ‘done it to any others [referring to other children]’ and then McIntosh ‘said yes … he said he wanted to die because he would continue to molest children’.
At interview with me, Garner declined to go into further detail about subsequent interactions with McIntosh, but said, ‘At the end of the day, yes, I killed him’.
He said that he used a kitchen knife and that ‘it was spur of the moment’.
He recalled that in the immediate aftermath ‘I remember closing his eyes after I killed him, he was staring at me’.
He said that at the time, ‘I felt like I had no choice … he knew about my history, my childhood, raising all the kids, it’s like he set me up knowing that I would take his life. I feel like I was set up, but I feel I did the right thing …in a weird, warped sense, I feel I did the right thing, because of probably half a dozen kids out there’ who now will not ‘have their soul ripped to pieces’.
He thus indicated a belief that McIntosh’s death means that there are a number of children who would have otherwise been victimised by McIntosh in the future and would have then had to live with the devastating sequelae of childhood sexual abuse, which Garner indicated as including being at risk of substance use and prostitution.
As I observed on the plea, although I accept that you have convinced yourself after the fact that you have ‘saved’ other young children, there is no real basis to assume that that was so.
You have had a history of abusing alcohol and drugs. I accept that you suffer from pain caused by your injured back which is real and that to some degree your life as a prisoner will be more difficult because of it.
This is not a murder at the lower end of the range and your response, set out above, cannot be in any way mitigation, and vigilantism is to be condemned. What you said might be a partial explanation of your conduct but it does not reduce the seriousness of it, and that is the most favourable thing that can be said about it. To that I add that, because this conduct, on any version of it, occurred very rapidly and mostly spontaneously, this is not a case which bears direct comparison with the other cases which have discussed vigilantism.
You pleaded guilty at an early stage and you must receive the benefit of that early plea. Your acceptance of the wrongfulness of what you have done has to be taken into account, but you have shown no remorse for your conduct and that absence of remorse is a significant feature of the sentencing process.
You will be imprisoned for some of the most significant years of your life. The sentence I impose will offer the possibility of a fruitful life after your release. Your prospects of rehabilitation are hard to assess. You have not taken much advantage, as I have pointed out, of the opportunities which have been offered to you. But you do have some prospects of rehabilitation. How good those prospects ultimately will be will depend on how you spend your time in prison.
You will be deprived of the opportunity of seeing your son grow up and I have taken that into account.
Australian law, as it now stands, means that you are liable to be deported on your release and I have taken that into account in the way that the law requires me to do. However, what the law will be at the time of your release is not known.
I am obliged to have regard to the principles of general deterrence and specific deterrence, denunciation of your conduct and just punishment.
You will be sentenced to be imprisoned for 21 years with a non-parole period of 17 years.
I indicate, had it not been for your plea of guilty, I would have sentenced you to be imprisoned for 26 years with a non-parole period of 22 years.
I declare that you have already spent 190 days in custody by way of pre-sentence detention.
I order that the above indication and declaration be entered in the records of the Court.
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