Director of Public Prosecutions v Hunter
[2013] VSC 440
•21 AUGUST 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2013 0045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN JAMES HUNTER |
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JUDGE: | BELL J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 AUGUST 2013 | |
DATE OF SENTENCE: | 21 AUGUST 2013 | |
CASE MAY BE CITED AS: | DPP v HUNTER | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 440 | |
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CRIMINAL LAW – sentencing – murder – offender pleading guilty early and giving an account of circumstances of offending – aged 47 years – second offence of murder – brutal killing of young woman – aggravating circumstances – concealment and disposal of body – in the worst category of the worst crime – serious violent offender with bad record for crimes of violence – very poor prospects of rehabilitation – continuing danger to community – expression of degree of remorse – head sentence of life imprisonment – whether minimum term should be specified – nature of offending and need for protection of community – minimum term not specified, despite plea of guilty – Crimes Act 1958 (Vic) s 3, Sentencing Act 1991 (Vic) ss 6AAA(1), 6D, 6F, 11.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnet | Office of Public Prosecutions |
| For the accused | Mr T R Marsh with Ms L A Medicino | Victoria Legal Aid |
HIS HONOUR:
Steven James Hunter, you have pleaded guilty to the charge laid against you by indictment of murdering Sarah Louise Cafferkey at Bacchus Marsh on 10 November 2012.
Sarah Louise Cafferkey
Sarah was born on 20 June 1990 and was aged 22 years at the time of her death. She was a petite young woman of about 160 centimetres in height and 51 kilograms in weight. She was described as bubbly, attractive and engaging, as shown by the photographs of her which have been given to the court.
Sarah grew up in the close-knit rural community of Bacchus Marsh among loving family and friends. She completed year 11 at Bacchus Marsh College but could not continue due to illness. She made a failed attempt to complete year 12 by home schooling. She wanted to continue her education and was particularly interested in pursuing studies in the administration of justice.
Sarah loved the fun and joy in life and, in her immaturity, commenced taking drugs, initially cannabis and ecstasy, then GHB and methamphetamines (known as ‘ice’), which are so-called ‘party’ drugs. She knew she had an addiction problem and had started the long journey towards recovery by seeking professional help. In August 2012, she entered a detoxification facility. After completing that one week program, she expressed a desire to change her life. As is unfortunately common for drug addicted people who genuinely wish to reform, she had a relapse about one month later. She wanted to get back on the road to recovery and was booked to re-enter the facility on 13 November 2012, three days after she was murdered.
Plea settlement
On 22 March 2013, the Crown agreed to settle this matter in accordance with a plea proposal put forward by you (through your legal representatives) on 18 March 2013. That proposal was accepted and the sentence hearing was conducted accordingly.
Pursuant to the proposal, you have entered a plea of guilty to one count of murder and provided a narrative of the circumstances of the offending which has not been challenged by the Crown. The narrative provided by you contains an account of what happened on the afternoon in question which was not revealed in the record of your interview with the police and could not otherwise be established by the Crown on the available evidence. The agreement of the Crown not to challenge your account does not cover the period leading up to the day in question nor what happened in the immediate aftermath. However, there is no significant dispute about these matters.
Circumstances of offending
You met Sarah through a network of friends. She accepted you as you were. She knew you had a criminal background and had been in gaol but did not hold it against you. Your friendship centred on ‘partying’, that is, taking drugs with each other and friends. She would visit your rented premises at unit 6, 1A Simpson Street, Bacchus Marsh and both of you would attend other places together.
It appears that you had a genuine affection for Sarah and I do not think she would have been your friend if she did not want to be. Being aged 47 years, you were much older than her and saw yourself as a ‘father figure’. You were not in a sexual relationship with her.
On Wednesday 7 November 2012, Sarah and a female friend spent the night at your premises in Bacchus Marsh, consuming ice and GHB. You and Sarah communicated by i-messages during the afternoon and evening of Thursday 8 November 2012, during Friday 9 November 2012 and during Saturday 10 November 2012. On the afternoon of that Saturday, Sarah joined you at your premises at Bacchus Marsh where you both drank alcohol (some of which she brought) and smoked ice.
On the account which you have given through your legal representatives and which has not been challenged by the Crown, during the course of that afternoon, you were cleaning the premises and found a used syringe belonging to your former partner. You made a disparaging comment about ‘junkies’. Sarah mistakenly thought that it was directed towards her. The two of you argued and, despite your protestations, she continued to believe that you were calling her a junkie. At some point, she hit you on the back with her fists. Turning around, you overbalanced and fell to the floor. When you got up, she hit you again. Of course, being relatively so small and light and you being relatively so big and heavy, Sarah represented no kind of physical threat to you and you did not feel particularly threatened by her actions. But, on your account, which is the only one we have, you ‘snapped’ and brutally murdered Sarah with a hammer and a knife.
By your plea and by the account which you have given, you have accepted responsibility for this most heinous crime. But the account you have given of the circumstances is scant indeed. You have a memory of striking Sarah to the head with a hammer that had been lying on the lounge room floor, but have no memory of stabbing her.
On the medical evidence, the stabbing was shocking in its ferocity, especially given that Sarah was completely defenceless. That medical evidence was provided by a forensic pathologist who examined Sarah’s body after it was found. He said the cause of death was multiple stab wounds. There were 10 separate stab injuries to her head and neck, seven stab injuries to her chest and abdomen and two injuries, possibly defensive in nature, on her upper limbs. The injuries impacted the aorta, pulmonary aorta, carotid artery, jugular vein, lungs and liver. One of the stabs passed close to Sarah’s heart, severely damaging the aorta and pulmonary artery. As a result of this injury, it is likely that Sarah lost consciousness and died within a short period of time. There were also sharp and blunt injuries through Sarah’s skull, including a ‘punched-in’ type fracture caused by severe to extreme force. It is not possible to know in what order the various injuries were inflicted.
Shortly after murdering Sarah, you left the premises, only to return a little later to implement a plan to conceal the crime and dispose of her body.
Concealing the crime and disposing of Sarah’s body
It appears from telephone records that, during the afternoon and early evening of Saturday 10 November 2012, you were still in Bacchus Marsh. At about 6.00 pm you telephoned a friend to say that you needed him to bring the spare keys which he was holding to your Bacchus Marsh premises, which he did. You were waiting at the letterbox for him to arrive. Later that evening you departed from those premises, leaving Sarah’s body in the kitchen.
On three occasions on Sunday 11 November 2012, you sent i-messages to Sarah’s mobile telephone, pretending that she was alive and trying to avoid suspicion with regard to her disappearance. On that day, you also drove to premises at 90 Fongeo Drive, Point Cook, where you were later to leave her body.
On Monday 12 November 2012, the female friend who spent the night with you and Sarah on Wednesday 7 November 2012 tried to contact her. She sent you an i-message asking whether you knew where Sarah was. You replied with the lie that you had not seen her since Saturday morning. That person sent you another i-message early that evening, telling you that Sarah’s mother had telephoned the police and asking you to inform her if you got in contact with Sarah. You did not get in contact with anybody about Sarah but continued with your plan to conceal the crime and dispose of her body.
During this day, you attended at your Bacchus Marsh premises and removed Sarah’s body from the kitchen. Wrapped in a bag, you placed her in the boot of your motor vehicle and left. At about 7.00 pm you went to the home of a friend and told that friend that you were in trouble and had ‘stuffed up’, that you had a body in the car and had to get rid of it, that you were house-sitting and had a party when things went wrong and a person had been killed by somebody who had been unable to dispose of the body. You asked your friend whether you could bury the body at his family’s property in the country. Realising that you were serious, your friend refused to help and encouraged you to leave the area.
You and your friend then drove separate vehicles to the city, where you bought food. You stated to your friend that you needed to do something quickly as Sarah’s body was beginning to smell. The two of you then went to a hardware store in a nearby suburb. You asked your friend if you could borrow his boat to dispose of Sarah’s body. At the store you purchased a 20 litre container of hydrochloric acid, three bags of rapid set concrete, one bag of lime and one roll of black plastic. After returning to your car, your friend refused your pleas for assistance and left.
In the evening of Monday 12 November 2012, Noelle Dickson, Sarah’s mother, contacted the Bacchus Marsh police station and made a formal report that her daughter was missing. At 9.45 pm that night the police sent you an SMS requesting that you contact them urgently in relation to missing person Sarah Cafferkey.
That brings me to Tuesday, 13 November 2012. By this time you had been concealing Sarah’s body for three days. On this morning, you drove to the Point Cook premises and removed the body from the boot of your car. In the garage of that premises, you placed the body in the bottom of a green wheelie bin, emptied in the bags of concrete, then mixed in water.
Later that morning, you contacted the Bacchus Marsh police station and left a message for the investigating officer to say that you had called. During that day, you had a conversation and further i-message communications with the female friend who had earlier been trying to contact Sarah. Despite her great distress, you maintained the pretence that you did not know Sarah’s whereabouts or why she had disappeared.
A police officer spoke with you by telephone that evening. You told the officer a mixture of truth and lies about what had happened on Saturday 10 November 2012. You said that you had been with Sarah at your Bacchus Marsh premises in the afternoon but you had left her there at about 5.00 pm. You said you did not return for two days and Sarah was not there when you went back. You said you were currently living at the Point Cook premises. After this conversation, you stopped using your mobile telephone. An external search of your Bacchus Marsh premises by the police later that evening revealed nothing out of the ordinary.
At about 8.30 am on Wednesday 14 November 2012, you returned to the Bacchus Marsh premises. You took Sarah’s car from the garage and drove it to a street in Maribyrnong. You parked it there and then left the area in a taxi.
Later that morning, the police conducted an internal search of the Bacchus Marsh premises. That, too, revealed nothing out of the ordinary.
In the early hours of Thursday 15 November 2012, you attended the home of another friend. By this time Sarah had been dead for five days. You slept through the day and awoke at about 2.00 am the next morning. You borrowed your friend’s car to collect some belongings. On returning, you asked whether you could sleep upstairs to avoid detection by the police.
On Friday 16 November 2012, the police seized Sarah’s motor vehicle in Maribyrnong where it had been observed the previous day. They also seized your vehicle where it had broken down in Melton.
You awoke at about 7.45 pm that day and asked your friend for pills with which to commit suicide. You said you would rather do that than go back into prison. You asked your friend to find somewhere for you to hide. Your friend refused to assist.
In the morning of Saturday 17 November 2012, investigators from the Homicide Squad attended at the Bacchus Marsh premises with a search warrant. They observed evidence of a crime, including recent attempts to clean the floors and walls and bloodstains on various items.
A little later, police attended at the Point Cook premises and executed a search warrant. While present outside the house, they could smell a persistent odour of decay. They tracked it down to the green wheelie bin inside the garage. In the garage they found empty bags of rapid set concrete, bloodstains on the floor and also on a nearby step ladder, and the container of acid. Inside the house, they found the jumper worn by you when attending the hardware store on 12 November 2012, a pair of bloodstained shoes and a second wheelie bin containing rubbish bags and bloodstained clothing.
Early in the morning of Sunday 18 November 2012, the wheelie bin with Sarah’s body was removed from the garage and taken by police to the Institute of Forensic Medicine. A scan revealed Sarah’s body in the bottom part of the bin, encased in lime and concrete underneath a quantity of solid concrete. Later that morning your friend, with whom you had been staying, told you of news reports that Sarah had been found murdered. Your friend asked you to leave. You again asked for help to find a place to hide and again discussed taking pills to commit suicide. Your friend agreed to your request to stay one more night only. You left these premises in the early hours of Monday 19 November 2012.
On Tuesday 20 November 2012, your vehicle was examined by police and found to contain a yellow poncho with bloodstains. Later that day, you were tracked down to an address in Hawthorn. They went to that address and called on you to surrender yourself into custody, which you did. On being arrested, you were asked whether you knew why, to which you replied: ‘Yes. Murder’.
Record of interview
After being arrested you were taken to the St Kilda Road police complex where, in five blocks during the course of the afternoon, you were interviewed. I have read the transcript of that interview and also watched the audio-visual recording which is some hours in duration.
In the first block of questioning, you declined to tell police about what happened to Sarah.
In the second, you stated that you did not want to talk about it, that you wanted to be locked up forever, that you were a friend of Sarah’s and that the two of you ‘clicked’ and got along well together. When asked to talk about her, you said with feeling that she was ‘grouse’.
When told that your friends did not have a bad word to say about you, you said that this ‘doesn’t make any difference’. When invited to co-operate in order to provide Sarah’s parents with some understanding of what happened, you said: ‘I don’t understand myself’ and (a little later) ‘I can’t help anyone’. When invited to talk about yourself, you said: ‘I’m nothing’.
In the third block of questioning, you first stated that you did not want to talk about what happened but a little later freely admitted to killing Sarah.
In the fourth, you told police how you had tried to dispose of Sarah’s body in a concreted wheelie bin, that you could not lift it because of the weight, that you were solely responsible for the killing, that you purchased the acid, lime, concrete and black plastic for disposing of the body, that Sarah had come to your premises on Saturday 10 November 2012 because she wanted someone to drink with and the two of you drank alcohol and smoked ice together that afternoon. You would not elaborate on how you killed Sarah and again asked to be locked up until you died.
In the fifth and final block of questioning, you said that you and Sarah had argued but would not give any details. You said you did not know why you killed her. You said: ‘I don’t understand why – I really don’t understand why. We argued, that’s it’. When asked whether the argument was about anything in particular, you said ‘no’. When asked whether there was any sexual slant to it, you said: ‘No, nothing like that’. You admitted to finishing a bottle of Sambuca and consuming some Jack Daniels during that afternoon.
As I have already noted, in the answers you gave in the interview you did not address in any greater detail the actual circumstances in which you killed Sarah. The account which I gave earlier was based on what you subsequently stated through your legal representatives and which, pursuant to the plea settlement, is not being challenged by the Crown. At no time during the interview did you say that you could not remember the details of what happened and you did not appear to have any difficulty with remembering those few details which you did actually provide.
Your personal history and health
The best account of your upbringing is the one which you gave to the clinical and forensic psychologist from the Victorian Institute of Forensic Mental Health, Professor James Ogloff, and the clinical forensic psychiatrist, Dr Danny Sullivan, on which the following is based.
You were born on 6 October 1965 and are 47 years of age. You are a tall, well-built man. You were raised in the Melbourne area and grew up in pubs. You have two younger sisters who you last saw more than a decade ago and with whom you now have no contact.
You had a highly deprived upbringing, characterised by physical abuse, neglect, substance abuse and exposure to family violence. As a child, you were burnt with an iron and degraded for bedwetting. In one terrible incident when you were aged only 8 years, your father locked the three children into a room while he tied your mother to a chair. You managed to get out of the room. Seeing your father put a shotgun into your mother’s mouth, you called your grandparents for help. Your parents separated shortly afterwards but, to your great distress, your mother married your father’s best friend.
Your stepfather was violent towards you and your sisters. In consequence, you left home and school when aged only 14 years and have had very little to do with your mother and sisters since. Thus you were separated from your parents and siblings at a young age. Prior to leaving home, you finished primary school without being able to do any homework as you went to bed early to avoid the violence at home. You left secondary school early but had no significant behavioural or learning problems and were never suspended nor expelled.
Your mother died in 1994. Your contact with your father has been sporadic, stopping entirely in 2002. You believe him to be alive, but are not sure. Because you have spent so much time in prison, you have no close friends or family support. You have received no telephone calls or visits whilst on remand in respect of the present offence. You told Professor Ogloff that ‘all my friends are criminals’.
You have always been an industrious person. After leaving home at the age of 14 years, you were keen to obtain employment and did so with apparent ease. You first attempted to complete a panel beating apprenticeship, in which you worked for one year. Then you worked for a plumbing retail company for approximately three years and later in a warehouse. You worked as a contractor cleaner at a supermarket and was appointed to be a night crew manager.
Unfortunately, you have spent most of your adult life in prison serving sentences for offences which I will later describe. Whilst on your most recent parole, you lived on the unemployment allowance and worked casually as a concreter. It is clear from answers which you gave in your interview with the police that you were frustrated at not being able to undertake more sustained employment.
In your life, you have had three significant relationships with women, which you described to Professor Ogloff. You have a son who is now aged about 28 years but he has chosen not to have any contact with you since you last saw him nearly 20 years ago. As I have already stated, your relationship with Sarah was one of friendship.
You are in good physical health, exercising regularly, even whilst in prison. You have been knocked unconscious on several occasions, once in 1995 when (to use your words) you were ‘bashed with a hammer and scalped’. You were hospitalised with head and spinal injuries as a result of a hit and run accident in 2002. None of these events have caused you any significant ongoing health difficulties, although you do have periodic numbness and weakness in the right shoulder.
You reported to Professor Ogloff that you started drinking at a young age but are not a problem drinker. You have had an extensive and varied history of substance abuse from the age of 12-14 years. More recently (until your arrest) you were using ice and speed at least 4-5 times per week. You were also using these substances in the period leading up to your first conviction for murder. You have also used cocaine and ecstasy quite regularly. Following your most recent release from prison, you were regularly using LSD and ice.
Your mental health and psychological condition
Based on the report of Dr Sullivan and the report and evidence of Professor Ogloff, you have never received psychiatric or psychological care for mental ill-health as such. You have seen numerous mental health professionals inside and outside of prison in relation to your offending behaviour and adjustment issues. In prison, you received psychological input through the Major Offenders Unit and a contract service provider. In the community, you saw a psychiatric medical officer at Forensicare every two months, focusing on the management of anger and aggression.
Dr Sullivan found that you had no history of significant psychiatric treatment or medication. There is no indication that you have been or are suffering from a psychiatric illness, cognitive impairment or other relevant mental condition. You described to him mild depressive symptoms related to your present situation, which he diagnosed an adjustment disorder with depressed mood. In his opinion, you have ‘a propensity to significant violence, not frequent but severe’.
Dr Sullivan commented on the scant details you have given of the circumstances of the offence. He said you could not remember exactly what happened or were unwilling to describe it. Your reported intoxication was a plausible explanation for your poor memory, but you might also be too ashamed or have other reasons for not providing further information. Whilst it was likely that substance abuse was associated with the offence, in the absence of further information about the circumstances, it was not possible to draw reliable or specific conclusions.
Turning to Professor Ogloff, in order to obtain objective information for the assessment, he administered the Personality Assessment Inventory, with which you co-operated. The profile did not identify the presence of any major mental illnesses but it did identify characteristics which were consistent with relatively mild depression. Professor Ogloff explained at length that you are extremely pessimistic about yourself and dwell on thoughts of worthlessness, hopelessness and personal failure. This is consistent with your statements to police in the interview that, for example, you think you are ‘nothing’.
Professor Ogloff concluded that you had an Antisocial Personality Disorder. Your demeanour and behaviour is characterised by a high degree of insensitivity coupled with poor anger control and impulsivity. You are liable to react explosively with extreme violence when you perceive yourself to be threatened, disrespected or rejected. These features of your personality partly explain your murder of two women but, in Professor Ogloff’s opinion, do not fully do so.
Professor Ogloff said that the prognosis for your rehabilitation had to be particularly guarded, given your age, personality and criminal history. Any attempts at rehabilitation would need to be intensive and long-term. He was very careful to be precise in relation to whether you were remorseful for your crime. He said you expressed only ‘a degree of remorse’, which he explained further in his evidence. He did note that, by contrast with your very aggressive and disturbed behaviour when previously in prison, you now just wanted to ‘do your time’ without incident. He explained in his report and in more detail in his oral testimony that it was unusual for offenders to remember so little of the circumstances of their offending as you, but he could not take that matter further.
Previous criminal record
You have a very bad criminal record, which you have admitted, dating from 1983 when you were age 17 years.
On 19 July 1983, you were found guilty in the Sunbury Magistrates’ Court of two counts of burglary and theft, criminal damage and discharging a missile with intent to injure or endanger, for which you were placed on a good behaviour bond for 12 months.
On 25 October 1983, you were convicted in the Sunbury Magistrates’ Court of unlawful assault, assault occasioning actual bodily harm and carrying an offensive weapon, for which you were fined a total of $1500.
On 15 February 1984, you were convicted in the Moonee Ponds Magistrates’ Court of being unlawfully on premises, for which you were fined $300.
On 25 February 1988, after pleading not guilty, you were convicted in this court by a jury of murdering Jacqueline Mathews on 9 April 1986, for which you were sentenced by Nathan J to imprisonment for 16 years with a non-parole period of 13 years.[1] At this time you were only 21 years of age.
[1]R v Hunter, Steven James (Unreported, Supreme Court of Victoria, Nathan J, 25 February 1988).
According to his Honour’s sentencing remarks, Ms Mathews was a young student who was working part-time in a supermarket to help keep herself at school. She was your working companion at the supermarket. Nathan J described her as being, like Sarah, ‘an attractive[,] vivacious and outward going young woman … [with] an appealing nature’. Prior to the evening of 9 April 1986, you had a relationship with her of a non-sexual kind, although you had kissed her on one occasion. That evening, she allowed you to enter her motor vehicle for the purpose of driving you to your home in order to collect some keys which you needed for work that night. The vehicle ended up in a secluded part of the car park of another supermarket. According to you, there was some kissing and cuddling, but she then rejected you. You then stabbed her to death with seven blows, some to the throat and some to the heart. Nathan J described as ‘absurd’ your account that she had abducted you for sexual purposes.
As with Sarah, you then implemented a plan to conceal the crime and dispose of Ms Mathews’ body. After the stabbing, you went back to the supermarket where you worked. You and an associate then returned to the scene of the crime to dispose of the body. You obtained a can of petrol, took Ms Mathews’ body to a remote location and set the body alight, burning her beyond all recognition. You then returned to work, as you did in the days that followed, maintaining the pretence of normality. At your home, you caused your bloodied clothes to be burnt. Initially you denied any involvement with the crime but, when confronted by the police with overwhelming evidence, you confessed. It is truly shocking to think that a young man aged only 21 years was capable of such things and even more shocking to think that, some 27 years later, you have done something very similar again.
Nathan J carefully considered whether you were remorseful for murdering Ms Mathews. His Honour found that your actions were consistent with self-preservation, not remorse. However, he did not regard you as being completely without promise. Referring to the stable household which you had established with your domestic partner and child, he did not think you had led a life of complete degradation. His Honour took into account your deprived upbringing and industrious nature but, referring to your previous convictions, he said you that had came before the court as someone ‘who [had] been warned’. He rejected your submission that drug-taking explained why you committed this murder, which was not ‘at the lower range of offences of this kind’. But for your youth, I am sure that you would have received a more severe sentence than you did.
On 27 September 1989, you were convicted in the Melbourne Magistrates’ Court of possession of cannabis and heroin and sentenced to imprisonment for 1 month. These offences related to drugs located in your prison cell.
In February 1990, you escaped from prison while serving the sentence imposed for the crime of murder. On 26 March 1990, you were convicted in the Melbourne Magistrates’ Court of the crime constituted by that escape and also of attempted theft of a motor vehicle. You were sentenced to imprisonment for 3 months and 1 month respectively.
In December 2000, you were released from prison on parole in relation to the sentence for the crime of murder. In May 2002, that parole was revoked and you were arrested and returned to custody. That occurred because, in March 2002 and whilst on parole, you committed kidnapping, false imprisonment and other offences, for which you were later to be sentenced to further terms of imprisonment.
On 19 June 2002, you were convicted in the Melbourne Magistrates’ Court of recklessly causing injury for which you were sentenced to imprisonment for 1 month, suspended for 12 months. On 12 May 2005 you were convicted of breaching the conditions of this suspended sentence. The Melbourne Magistrates’ Court restored the sentence and you were ordered to serve the term of imprisonment of 1 month.
In July 2002, you were re-paroled and released from custody. In September and October 2004, your parole was again revoked and you were arrested and returned to custody. This occurred because you had failed to appear at a committal in relation to the kidnapping, false imprisonment and other charges and had failed to comply with the conditions of your parole.[2]
[2]R v Hunter [2006] VSCA 129 (21 June 2006) [18] (Maxwell P, Buchanan and Redlich JJA).
On 3 February 2005, you were convicted in the Geelong Magistrates’ Court of unlicensed driving and driving an unregistered motor vehicle for which you were fined $500 and your licence was cancelled for 18 months. You were also convicted of dangerous driving, for which you were sentenced to imprisonment for 12 months, and possessing amphetamine, for which you were sentenced to imprisonment for 2 months. You appealed against the severity of the sentences of imprisonment to the County Court of Victoria. The appeal was successful. On 27 April 2005, your sentence on the charge of dangerous driving was reduced to imprisonment for 3 months and your sentence on the charge of possessing amphetamine was reduced to imprisonment for 1 month.
Also on 27 April 2005, you were convicted in the County Court of Victoria[3] of the offences committed in March 2002 whilst you were on parole in relation to the sentence imposed for murder. You pleaded guilty to those charges. Judge Chettle accepted that you had expressed genuine remorse and said you would receive a substantial reduction of sentence by reason of your guilty plea.
[3]R v Hunter [2005] VCC 385 (27 April 2005) (Judge Chettle).
The offences were kidnapping, for which his Honour sentenced you to imprisonment for 4 years, false imprisonment, for which you were sentenced to imprisonment for 2 years and 6 months, intentionally causing injury, for which you were sentenced to imprisonment for 12 months, theft of a motor vehicle, for which you were sentenced to imprisonment for 6 months and trafficking in amphetamine, for which you were sentenced to imprisonment for 6 months. His Honour imposed a effective sentence of imprisonment for 6 years and 6 months with a non-parole period of 4 years and 6 months.
On appeal, Maxwell P, Buchanan and Redlich JJA somewhat reduced the sentences for kidnapping to imprisonment for 3 years and 9 months and false imprisonment to 2 years and 3 months and affirmed the other sentences. Their Honours reduced the total effective sentence to imprisonment for 6 years and the non-parole period to 4 years, that is, by 6 months.
From the sentencing remarks of Judge Chettle and Maxwell P, Buchanan and Redlich JJA, the circumstances of the kidnapping, false imprisonment and related charges were that, at the request of a female friend and for a fee of $500, you located and captured an acquaintance with the help of an accomplice. The two of you forced the man into a vehicle and took him to your premises and to the premises of your female friend. You then took the man back to your premises, tied him up and gagged him. You secured him with tape and electric cord. You tied his head to a beam with a coat hanger. Whilst the man was in that position, you punched him in the face and ribs on a number of occasions, causing him injuries to his face and head. He was left tied in that way until he managed to free himself and escape. Judge Chettle described this conduct as ‘gross and violent’. His Honour said that you had sadistically tied up the victim and assaulted him. He said that you had ‘terrorised and traumatised him’.
In April 2011, you were released on parole in relation to the sentences of imprisonment imposed for these kidnapping, false imprisonment and other offences. On 30 October 2012, your period of parole in respect of those sentences was completed and you became entitled to unconditional freedom. Some 11 days later, on 10 November 2012, you murdered Sarah.
Victim impact statements
Section 5(2)(daa) of the Sentencing Act 1991 (Vic) requires the court to have regard to the impact of the offence on any victim of the offence. Section 3 defines a ‘victim’ to mean any person (or body) who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effects) as a direct result of the offence. Section 8K enables victims of the offence to make statements to the court for the purpose of assisting the court in determining sentence.
I admitted a number of victim impact statements into evidence. By s 8L(1), the contents of statements must be confined to the particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence. To ensure that victim impact statements do not go beyond this permitted scope, s 8L(3) gives the court power to rule out any inadmissible parts. Some parts of some of the statements in the present case did go beyond the permitted scope and I ruled out as inadmissible those parts.
The statements which were received into evidence were from the following persons:
·Noelle Dickson, Sarah’s mother (read from the witness box)
·Adrian Cafferkey, Sarah’s father (read from the witness box)
·Emma Dickson, Sarah’s cousin (read from the witness box)
·Hollie Alexandra Cutajar, Sarah’s cousin (read from the witness box)
·Jennifer Closter, Sarah’s aunt (filed but not read)
·Lawrence Seery, Sarah’s mother’s partner (read on his behalf by senior counsel for the prosecution)
·Ashleigh Mehmed, Sarah’s friend (read from the witness box)
·Alexandra Evans, Sarah’s best friend (read from the witness box)
·Gwen Betts, Sarah’s close friend (read on her behalf by senior counsel for the prosecution)
·Rose Lowry, who lives next door to the Point Cook premises where Sarah’s body was found in the wheelie bin (filed but not read).
The statements were admitted into evidence with attachments, including a laminated photograph presentation in relation to Sarah and her family and community.
I have taken all of these statements and their attachments into account in determining sentence. Each of the statements show how deeply Sarah’s family and friends, and the people in her broader community in Bacchus Marsh, have been affected by her death and the circumstances of her death. Sarah’s family and friends have been utterly traumatised by her apparent disappearance, the discovery of her murder and the dreadful manner of the treatment of her body. Her mother and father spoke with great emotion about the loss of their only daughter and the unimaginable suffering and grief which they have experienced in consequence. Her cousins, aunts, friends and others spoke of the particular suffering which they have experienced. Each victim emphasised how hard it was to lose such a delightful young woman to a callous murder and the horrible thought of Sarah’s body in a wheelie bin.
Sentencing considerations
The Sentencing Act specifies the purposes for which the court may impose sentences on offenders. They are just punishment (s 5(1)(a)), specific and general deterrence (s 5(1)(b)), rehabilitation (s 5(1)(c), denunciation (s 5(1)(d)) and protection of the community (s 5(1)(e)).
When imposing sentence, I am required to have regard to the maximum penalty for the offence (s 5(2)(a)), current sentencing practices (s 5(2)(b)), the nature and gravity of the offence (s 5(2)(c)), the extent of your moral culpability for the offence (s 5(2)(d)), the impact of the offence on any victim (s 5(2)(daa)), your early plea of guilty (s 5(2)(e)), your previous character (s 5(2)(f)) and the presence of any aggravating or mitigating circumstances (s 5(2)(g)).
By virtue of your previous conviction for murder, you fall to be sentenced as a ‘serious violent offender’ under pt 2A of the Act. Pursuant to s 6F, I will declare that you are being sentenced on that basis.
By s 6D(a), in determining the length of the sentence of imprisonment which must be imposed on you for your second conviction of murder, I must regard the protection of the community as the principal purpose for which the sentence is imposed. I will later explain how I will be applying this principle in the present case.
By s 6D(b), I am also empowered to impose a sentence which is longer than is proportionate having regard to the objective gravity of the offence. In this case, I have not found it necessary to consider the exercise of this power.
In making findings of fact that are relevant to your sentence, I must be satisfied beyond reasonable doubt in relation to those which are adverse to your interests.[4]
[4]R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ), applying R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
It is not suggested and could not be suggested that the sentence should be mitigated because of a psychiatric or psychological disorder or impaired mental functioning.[5]
[5]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
You are in good health and I have no reason to think that you would find a long term of imprisonment, including a term of life imprisonment, unusually burdensome. Like all people, you will decline physically over the years. But I think you are likely to remain powerful enough to represent a continuing threat to the community even in old age.
Age is an important sentencing consideration. You are middle-aged, not young. The imposition of a life sentence, in particular, will still probably amount to a term of imprisonment of some decades. I take that into account, but your middle-age does not count against the imposition of such a sentence.
The way in which you treated Sarah’s body is a circumstance of aggravation. I accept the submission made on your behalf that what you did was less reprehensible than hacking up the body of a deceased person into pieces and then casting them into the sea.[6] But you left Sarah’s body for days in a state of decay, put the body into a bag and drove around with it in the boot of a motor vehicle and then put it into a wheelie bin with lime and concrete. This demonstrated complete disrespect for Sarah as a deceased person and deprived her parents of a last opportunity to see her before burial.
[6]Cf R v Coombes [2011] VSC 407 (26 August 2011) [42] (Nettle JA).
I also accept the submission made on your behalf that your murder of Sarah was unplanned, unpremeditated and spontaneous. There was no animus between you and her; you were on friendly terms and apparently at ease in one another’s company. The murder was not committed for motives such as financial gain or revenge. Beyond the obvious context of drugs and alcohol, the crime remains inexplicable.
Under s 3 of the Crimes Act 1958 (Vic), the maximum penalty for the crime of murder is imprisonment for life. It is the most serious offence in the criminal calendar. Having regard to the manner and circumstances in which the crime was committed and the subsequent concealment and treatment of the body, the murder of Sarah Cafferkey to which you have pleaded guilty is in the worst category of the most serious offence in the criminal calendar.
I have considered current sentencing practices for crimes of this nature. In doing so, I have examined the sentences given in the cases listed in the table of cases provided by the prosecution and those referred to by your counsel (including Babic v DPP,[7] which I consider to be distinguishable).
[7][2010] VSCA 198 (17 August 2010) (Ashley, Neave and Harper JJA).
General and specific deterrence are important sentencing considerations in this case, and I take both into account.
In relation to the head sentence, a sentence of imprisonment for life is a dreadful sentence which must be reserved for the most dreadful of cases and then only after anxious consideration.[8] It is to your credit that you have conceded through your legal representatives that the sentence for the crime must be imprisonment for life. I will be imposing that sentence as you did commit a most dreadful murder. Your highly skilled legal representatives have focused their considerable ability on trying to persuade the court that I should impose a minimum term upon the completion of which you will be eligible to be released on parole, if it is then adjudged to be suitable and appropriate.
[8]R v DJH [1998] VSCA 108 (16 November 1998) [13] (Brooking JA); R v Quarry (2005) 11 VR 337, 344 [25] (Warren CJ).
That an offender has pleaded guilty, and did so early, is a sentencing consideration of singular importance. A plea of guilty (especially at an early stage) is a mandatory sentencing consideration under s 5(2)(e) of the Act. Section 6AAA(1) requires the court to specify the sentence and the non-parole period, if any, which it would have imposed but for the plea of guilty. I note, however, that this is only required if the court decides to impose a less severe sentence than it would otherwise have done because the offender has pleaded guilty (s 6AAA(1)(a)).
Section 11(1) of the Sentencing Act requires the court to fix a minimum period upon the completion of which you will be eligible to be released upon parole, unless it considers that the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate.
The specification of a period on completion of which the prisoner is eligible for parole serves important sentencing purposes which might be especially relevant where the head sentence is one of imprisonment for life. The purpose of specifying a minimum term is to provide mitigation of punishment in favour of the rehabilitation of the prisoner through conditional release on parole.[9] Among other things, the specification of a minimum term represents a humane response to the capacity of almost every prisoner over time to rehabilitate themselves and atone for the crime which he or she has committed. The non-parole period is that period which, in the estimation of the judge in all of the circumstances, is the minimum period which justice requires must be served by the prisoner before there can be mitigation of the sentence in favour of his or her conditional release on parole.[10]
[9]R v VZ (1998) 7 VR 693, 697-8 [15] (Callaway JA), 700 [22] (Batt JA).
[10]Power v The Queen (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 54 ALR 765 (Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ); Bugmy v The Queen (1990) 169 CLR 525, 536 (Dawson, Toohey and Gaudron JJ).
The principles I have just stated are well established. The question is whether, under s 11(1) of the Act, I consider that the nature of your offence or your past history makes the fixing of such a period inappropriate. I now turn to that question.
Nature of offence and protection of community
Putting aside the express power in s 6D(b) of the Sentencing Act, it is not permissible to impose a sentence beyond that which is objectively justified for the purpose of protecting society from the risk of further offences.[11] Further, the court must be careful not to impose a disproportionate sentence upon an offender by reason of his or her criminal history, for that implies the imposition of a fresh penalty for past offences.[12] I have taken both of these principles into account.
[11]Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ).
[12]Ibid 477.
However, the criminal history of an offender is relevant to show that, in committing another offence, he or she has manifested a continuing disregard for the law. In such a case, the sentencing considerations of retribution, deterrence and protection of the community may all indicate that a more severe sentence is warranted. The antecedent criminal history of the offender may be taken into account when considering his or her moral culpability for the offence under sentence. The antecedent history may show that the offender has a dangerous propensity for violence from which the community needs protection or that it is appropriate to impose condign punishment in the interests of general and specific deterrence.[13]
[13]Ibid 477.
You are under sentence before me for your second crime of murdering a young woman. In both cases, you brutally stabbed the victim with a knife (in the present case, you also used a hammer) and then sought to conceal the crime by disposing of the body in a most callous and calculating manner. On both occasions the killing was not provoked in any way and the victim represented no kind of physical threat to you. Both of the victims were completely defenceless in the face of your vastly superior physical strength.
The nature of the offending involved in the murder of Ms Mathews was shocking indeed. But you were then only 21 years of age. The nature of the offending involved in Sarah’s murder is even more shocking. You cannot call youth in aid by way of explanation for this crime.
Having regard to your first conviction, your moral culpability for the murder of Sarah is very high. When viewed against the background of that conviction and the other crimes of violence for which you have been sentenced, your murder of Sarah shows that you have a propensity for extreme violence from which the community, and especially young women, need protection.
Remorse and plea of guilty
In the careful and well presented submission of your counsel, it is appropriate to give you very great credit for pleading guilty at an early stage, which I accept you did. I take into account in your favour that your plea of guilty has enabled you to be sentenced less than 12 months after you committed Sarah’s murder, which is of great benefit to her family and friends, the community generally and the administration of justice. Counsel also submitted that you have demonstrated some remorse for the commission of the crime which must also be taken into account.
It is beyond question that appropriate credit for pleading guilty, and doing so early, must be given in almost every case. An offender pleading guilty voluntarily relinquishes their civil and human right to contest a criminal charge and put the prosecution to its burden of proof beyond reasonable doubt. That is what you have done in the present case.
A plea of guilty always carries with it both objective (or utilitarian) benefits in terms of the administration of justice and also usually indicates that the offender has experienced subjectively (that is, personally) an appropriate sense of remorse. A plea of guilty saves the court and the community very considerable cost and expense, as well as the great distress of a contested criminal trial with all that it involves. It helps to bring a sense of closure to victims. An appropriate sense of remorse suggests that the offender has prospects of rehabilitation which the court should recognise in the sentence. The objective benefits of a guilty plea must almost always be taken into account, whether or not the offender also demonstrates subjective remorse and whatever be the apparent strength of the prosecution case.[14] There is a profound public interest in encouraging offenders to plead guilty and taking such pleas fully into account when determining sentence, as the provisions of the Sentencing Act require.
[14]Phillips v The Queen [2012] VSCA 140 (29 June 2012) [55], [61]-[64] (Redlich JA and Curtain AJA, Maxwell P agreeing).
However, there is a kind of case, which must necessarily be exceptional, in which justice requires the maximum sentence to be imposed despite a plea of guilty. As stated by Redlich JA and Curtain AJA in Phillips v The Queen,[15] cases where there is a high degree of criminality and a demonstrated need to protect the community might fall into this category:[16]
The exceptional case arises where the gravity or aggravating features of the offending conduct are of such an order that even allowing the mitigatory effect of the plea, the maximum sentence remains appropriate. That is because the offender’s criminality so outweighs any circumstances of mitigation that are present.[17] For example, for the offence of murder, a sentence of life imprisonment is sometimes imposed, notwithstanding a plea of guilty, because of the degree of criminality of the offence.[18] In such cases the enormity of the offender’s criminality may be such as to require that, albeit exceptionally, the mitigatory effect of the utilitarian benefit yield to considerations of greater weight such as proper protection of the public, and the maintenance of the rule of law.[19]
[15]Ibid.
[16]Ibid [67].
[17]See, eg, Wangsaimas, Lee Vanit & Tansakunv The Queen 6 NTLR 14, 35 (Martin CJ, Kearney and Mildren JJ).
[18]R v Coombes [2011] VSC 407 (26 August 2011) [86]–[90] (Nettle JA).
[19]R v Kalache (2000) 111 A Crim R 152, 166 (Sully J); R v Thomson, R v Houlton (2000) 49 NSWLR 383, 418 [158] (Spigelman CJ).
The crime which you committed was in the worst category of the most serious crime of murder, there were aggravating circumstances, your moral culpability is very high and the community, especially young women, need protection from your propensity for extreme violence. In my view, your case is therefore exceptional.
The weight to be given to your guilty plea must be considered together with the extent of the remorse which you have demonstrated. I am prepared to accept that you have demonstrated a degree of remorse, as Professor Ogloff said in your favour. I take that into account as a factor in mitigation of your sentence and in considering your prospects for rehabilitation and whether you will continue to be a danger to the community as an old man. I also take into account in your favour that you have provided important information, scant though it is, in relation to the circumstances of the offending. In all probability, a degree of remorse is all that you are capable of expressing at the present time. I am prepared to accept that, for whatever reason, you are unable to provide further information as to the circumstances of the offending. As you said in your interview with the police, you do not understand yourself and can offer no explanation for the crime. Whether you will over time achieve a greater degree of insight and sense of personal redemption seems highly unlikely, but I do not dismiss the possibility.
It was argued with great force on your behalf that I should set a minimum term which would allow consideration of your rehabilitation and suitability for release to be considered in your old age. In considering that submission, I have taken the view that, while your crime was monstrous, you are not a monster. While your moral culpability for the crime is very high, you are not completely without morals or capacity for human feeling. A friend and a family member were there to support you during the sentencing hearing. You are not a remorseless psychopath. Very poor though the prospects of your rehabilitation may now seem to be, it has weighed heavily on my mind that one day, say when you are aged 80 years, you might achieve a state of atonement and, for that reason and because of inevitable physical decline, cease to be a danger to the community.
In that connection, it was submitted by reference to human rights that I should not destroy all your hope for atonement, rehabilitation and release. Reliance was placed on the recent decision of the Grand Chamber of the European Court of Human Rights in Vinter v The United Kingdom[20] that a sentencing system would be in breach of human rights unless it made provision for the review of a sentence of imprisonment for life so as to ensure that the continued imprisonment of the prisoner remained justified on penalogical grounds. In the course of that judgment,[21] and in judgments of other courts dealing with the subject,[22] stress was laid upon the cruel, inhuman and degrading[23] nature of sentencing systems which permitted the continued imprisonment of an offender in their old age (even though he or she may have achieved full rehabilitation and represented no risk to society) and which never allowed the offender an opportunity to atone for his or her crime.
[20]Vinter and Others v The United Kingdom (European Court of Human Rights, Grand Chamber, Application Nos 66069/09, 130/10 and 3896/10, 9 July 2013).
[21]Ibid [111]–[114], [119], [121]–[122].
[22]See for example R (Wellington) v Secretary of State for the Home Department [2008] 3 All ER 248, 268-9 [39(iv)] (Laws LJ).
[23]The decision in Vinter was based on article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13), which provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Section 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides: ‘A person must not be … (b) treated or punished in a cruel, inhuman or degrading way …’
My function is to determine your individual case, not assess the human rights compatibility of Victoria’s sentencing system. I must determine your individual case within the legislative framework laid down in the Sentencing Act, as interpreted and applied by this court and the High Court of Australia. It was not suggested by your legal representatives that the provisions of that Act should be interpreted in a particular way by reason of s 32(1) of the Charter of Human Rights and Responsibilities Act. Reference was made to human rights as discretionary considerations and I take the submissions into account on that basis.
It must be noted, however, that yours are not the only human rights engaged here. You destroyed Sarah’s human right to life, the most important of all human rights, and I must unequivocally denounce the commission of this most heinous crime. Moreover, it is a fundamental purpose of the criminal law to protect the right of people in the community, including young women, to personal and physical inviolability, and that too must be recognised as a relevant and important human right.
The particular relevance of human rights in your case is that a life sentence without the possibility of parole might be considered disproportionate, especially because of the prospects or your rehabilitation and of you ceasing to be a threat to the community in your old age. While I am satisfied, on the evidence, that your prospects of rehabilitation are very poor and you are likely to remain a danger to the community even into your old age, I acknowledge that slim possibility and take it into account under the provisions of the Sentencing Act which I must apply.
However, s 11(1) requires me to must fix a minimum term on completion of which you will be eligible for release on parole unless I consider that the nature of the offence and your past history make that inappropriate. Because you are a serious violent offender, s 6D provides that the protection of the community must be the principal purpose of the sentence to be imposed. I must assess the considerations specified in these provisions prospectively on the basis of the evidence before the court at the present time. On that evidence, I have found that your prospects of rehabilitation are very poor and you are likely to remain a danger to the community even as an old man. I can take into account, as I do, the mere possibility that the actual situation in the very long term might be different, both as to your prospects of rehabilitation and your physical capacity to do harm. But, having regard to the great significance in this case of the nature of the offending and the need to protect the community, I cannot give much weight to the slim possibility of your ultimate rehabilitation and you ceasing to be a danger of further offending due to physical decline.
After anxious consideration I have concluded that I should not impose a minimum term despite your plea of guilty and the degree of remorse which you have expressed. The nature of the offence which you have committed is that it is in the worst category of the worst offence in the criminal calendar. There were aggravating circumstances. Your moral culpability for the offending is very high. Your past history is one of a bad criminal record for serious crimes of violence, including a previous conviction for a similar murder. You are therefore a serious violent offender. On the evidence presently before the court, your prospects of rehabilitation are very poor and will likely remain so for the rest of your life. You present a substantial risk of committing further crimes of violence and it is unlikely that this risk will be significantly reduced due to the physical decline which you will experience in your old age. The community, especially young women, need protection from your propensity for extreme violence. For those reasons, it is inappropriate to set a minimum term.
Sentence
Steven James Hunter, for the murder of Sarah Louise Cafferkey at Bacchus Marsh on 10 November 2012 you are sentenced to imprisonment for life without minimum term.
I declare that you have been sentenced as a serious violent offender under s 6F(1) of the Sentencing Act.
I declare that the number of days already served under this sentence is 274 days (not including today).
I will make the forensic sample and disposal orders which have been sought by the Crown.
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