Director of Public Prosecutions v McCullagh
[2000] VSC 554
•15 December 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1439 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCIS JOHN MCCULLAGH |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2000 | |
DATE OF SENTENCE: | 15 December 2000 | |
CASE MAY BE CITED AS: | DPP v Francis John McCullagh | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 554 | |
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Criminal law - sentencing - murder - breach of parole - calculation of sentence, concurrency and cumulation - serious violent offender - Sentencing Act 1991 sections 6B, 6D, 14(2)(a), 16(1), 16(1A)(d) and 18(4).
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APPEARANCES:Counsel:Solicitors:
For the Director Mr B. Kayser Office of Public
Prosecutions
For the Accused Mr L. Hartnett Victoria Legal Aid
HIS HONOUR:
Mr McCullagh, you have served six days in pre-sentence detention, being the days between your arrest on 15 September 1999 for this offence and the execution of the Parole Board warrant, which I will refer to in a moment, on 20 September 1999. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of six days served under the sentence I today impose upon you and I so certify. The balance of the period in custody - from 20 September 1999 until today - has been served by you for other offences and not "in relation to proceedings for (this) offence" (s.18(1)), and thus is not declared by me as already served under the sentence I today impose. That means, Mr McCullagh, that six days come off the present sentence, but not the rest because you are serving that for other offences.
The non-parole period I shall set on the sentence imposed today for murder supersedes any other existing non parole period: s.14(2)(a) Sentencing Act 1991.
As to the period of one year 10 months and two days imprisonment you are serving under other current sentences, by law that period, unless I otherwise order, will be served concurrently with the sentence I today impose. That is for the following reasons:
(a)by s.16(1) Sentencing Act 1991, normally a term of imprisonment imposed is served concurrently with any existing, uncompleted terms of imprisonment;
(b)that normal rule does not apply to a term of imprisonment imposed on a person for an offence committed, "while released under a parole order": s.16(1A)(d);
(c)however, this offence does not fall within that description because your parole had been cancelled by the Parole Board on 18 December 1998, and thus although you were in the community unlawfully, you were not as at September 1999 "released" as contemplated by s.16(1A)(d).
The normal s.16(1) concurrency rule may be varied by me by directing otherwise: 16(1). In this case, I do not propose to direct otherwise, because if I did, that would mean either an excessively lengthy parole period would be available (because the cumulation goes onto the head sentence, not the minimum term) or there would be an excessively short parole period available (if I imposed a head sentence for this crime but fixed the non-parole period relative to the cumulated period). Neither such course is appropriate. For reasons I shall state later in sentencing, I consider a shorter period of availability than usual for parole is appropriate in your case. However, it needs to be long enough to be of utility.
Mr McCullagh, you have been convicted by a jury of the murder at Skye near Cranbourne on Saturday 11 September 1999 of Melanie Anne Harnden. At the time of her death Ms Harnden was just 21 years of age. She was born on 17 June 1978. She was a young and good mother. You were twenty-nine and a half years of age, having been born on 2 January 1970, and are now almost 31 years of age. You and Ms Harnden had had a relationship and on the days immediately preceding the murder, you and she and others had been commuting between Hastings, where Ms Harnden lived at the Hastings Caravan Park, Cranbourne, where your friend Mr Buttigieg lived, Chelsea, where you temporarily lived, and the city, where you had attended a nightclub. You had consumed drugs during the period commencing on Thursday night 9 September. On the Thursday and Friday nights you and the persons I have named and one Ms Dunkin consumed amphetamines and Ecstasy. However, you have, as I shall come to, sought to exaggerate the quantum of drugs that you ingested in an attempt to explain and excuse your murderous conduct.
On the evening before the murder the deceased was home at her caravan at Hastings with her friend, Ms Dunkin. You and Mr Buttigieg arrived during the evening. Ms Dunkin left but you remained there. During the evening it appears that your small bag was stolen in which was contained an old gold cross of sentimental importance to you having come from your grandmother, your brand new mobile phone and some other personal belongings. You were enraged by this loss.
The next day, Saturday 11 September, you and Mr Buttigieg sought to accuse various persons in the caravan park concerning the loss of your bag. You left but returned at about 4.30 p.m. and, in a spate of arrogant behaviour, abused the lady owner of the caravan park and others within earshot. You were that evening due to go to a family engagement, which was in fact a surprise wedding in Chelsea. You and Mr Buttigieg and Ms Harnden, who thought she was going to a happy family event, left the caravan park, she with some clothes to stay overnight. You drove to Cranbourne where you dropped Mr Buttigieg off. At some point shortly thereafter, something was said by Ms Harnden in the vehicle which caused you to attack Ms Harnden. You have falsely stated to the police that Ms Harnden kept talking about the loss of the bag and that you sought to be the peacemaker. You said to the police what you were saying was (A.29): "Please, I want to go and have a good night, I don't want to know about the bag. Forget about it." In truth it was the reverse. Ms Harnden was seeking to go and have a good time but you would not let go the question of the bag. You also falsely said to the police that she attacked you in the car. In fact it was you who attacked her because of your perception of her, just like earlier you had attacked another woman because of your perception of her, to which I shall come.
On a country road near Cranbourne you violently assaulted the deceased, put your hand or hands around her throat and choked her until she was dead. She was 48 kilograms in weight, 164 centimetres in height and a young and slight woman. You were a strong and powerful man. You exerted substantial force on her throat for a sufficient time to cause her death. You then released your grip. In your police interview, you described your attack upon the deceased, in a haunting understatement, as (A.458) "pretty intense".
You then drove back to Cranbourne to the premises of your friend, Mr Buttigieg, whom you had recently dropped off. Then while the dead victim was in the front passenger seat of the vehicle, you went around your friend's home and from the front bedroom collected a child's Sesame Street sheet, from outside the house on the door step collected a length of rope, from the linen press in the house collected a tea towel, and from the clothesline outside the house collected Mr Buttigieg's son's jacket. You then drove into the night with the deceased in the vehicle and those items also in the vehicle.
Ultimately you left the trussed and bound body of the deceased on a lonely country road in South Gippsland, 2.2 kilometres off a remote part of the South Gippsland Highway. The photographs of the body of the deceased so bound and trussed are eloquent of a deliberate, persistent set of actions by you in binding her body together. One may speculate as to why indeed you did that to the body, but I shall desist from that speculation. The uncontrovertible fact is that you left her body there bound and trussed in a complex way on a remote and lonely country road. You had caused the death of Ms Harnden, as was established in the autopsy on her body conducted by an eminent pathologist, Dr Lynch, on 16 September, the Thursday, 1999, by neck compression causing an asphyxial death. That was the cause of death: neck compression causing an asphyxial death. Although the thyroid cartilage was intact, there were fractures of both arms of the hyoid bone within her neck and there was deep bruising of the strap muscles within the neck as well as significant external bruising to the face and neck of the deceased and the telltale conjunctival petechial haemorrhages in her eyes showing she had died an asphyxial death.
You knew that you would be the person that the police would come seeking for explanation for the disappearance of Ms Harnden. On the Monday morning, 13 September, Ms Harnden's mother reported her missing. You attended the police the following Wednesday because you were the last person who was seen alive with the deceased, she would not be seen again, you had convictions for similar conduct, and you knew you would be pursued by the police. You attended to the police with a solicitor and gave a lengthy interview with the police on video. Although you wept throughout that interview you told lies throughout that weeping, including seeking to blame the victim and seeking to hide behind drugs. You were charged with the murder of the deceased.
The family of the deceased has been grievously afflicted by her loss. She was a good daughter and a good and loving mother. To cite the (adapted) words of the victim impact statement of Mr Higgins, the stepfather of the deceased and who has loyally been in this court throughout the trial, in Exhibit A filed before me the mother of the deceased has said: "It is like I have had my heart ripped out and there is an empty hole that doesn't feel like it will ever be filled again."
Your learned counsel in an eloquent and comprehensive plea has put before me a number of matters in your favour. He has submitted that this is a case in which there was no plan. That is true; but you do not need a plan. It was put that this is a case in which there was no premeditation. That also is true; but you do not need premeditation. It was put that this is a case in which there was no weapon. That also is true; but you do not need a weapon. It was put that you came forward to the police as indeed you did. I accept your counsel's submission that part of your coming forward was concerned with the family not knowing where the body was and that the body perhaps might not be discovered for years. But your primary motivation in coming forward was because you knew you had no other choice yourself. It was put by your counsel that you had, and have, remorse. I do accept that you have and had some remorse for the terrible death of Ms Harnden.
It is put that the report of the psychiatrist Dr Barry-Walsh of 3 October 2000, and that of the psychologist Mr Healey (undated), should go towards explaining your conduct. The psychiatrist's report shows no psychiatric illness, and the psychologist's report shows no psychological disorder, which explains this crime. You are a person of above average intelligence.
It was put also to me that a significant potentiating factor in this case was the use or abuse of Ecstasy and of amphetamines and of marijuana and that that goes some way towards explaining your conduct. You were not using marijuana and in so far as you were using Ecstasy and amphetamines, and I find that you certainly were, you knew very well that they facilitated violence in your conduct. Further, you have exaggerated the extent to which you were utilising those violence enabling drugs and in that regard I accept the evidence of Ms Dunkin who I consider was an honest, straightforward and impressive witness.
You are now 31 years of age as I have said. You were born in Belfast and came to Australia as an infant with your family, and you all settled at Cranbourne. Unfortunately, you had a violent father and in your tender and impressionable years, grew up with his violence being exhibited in the home. He then returned to Ireland. It was put on behalf of you by your counsel that, unfortunately, you learnt at a young age to resolve problems with violence. But you are now an adult, you are intelligent, and you are responsible for your own actions, Mr McCullagh.
You have a number of prior convictions. I will not recite them. The earlier ones demonstrate that you were a person lacking in self control, but as to them fines were imposed - at the Dandenong Magistrates' Court from 14 May 1987 to 10 January 1990. You were of course much younger then, and I take that into account, and further I take into account that thereafter there was a significant gap in any convictions, until 1997. However, on 2 June 1997 in the County Court, you were convicted of causing serious injury intentionally and of false imprisonment. You were sentenced to be imprisoned for two and a half years on the first charge and for nine months on the second, with six months of the latter to be served concurrently with the former, giving a total effective sentence of two years and nine months' imprisonment - a most merciful sentence. The learned judge directed that you serve a minimum term of 12 months' imprisonment before you became eligible for parole. On 9 April 1998 the Parole Board granted you parole upon terms. Thus, after a serious offence the court extended mercy to you with the aim of fostering your rehabilitation. The Parole Board, consonant with that curial objective, gave you the opportunity to show yourself worthy of that mercy. You failed the court, the Parole Board, and the community in whose interests the courts and the Parole Board act. You soon stopped fulfilling your parole obligations, leading to the cancellation of your parole on 18 December 1998. You returned to drugs and ultimately to violence.
The injury and false imprisonment offences for which you were convicted in the County Court on 2 June 1997 not only were serious but are highly relevant to this crime. I have read the evidence in that case, in particular the harrowing statement made on 14 December 1996 at the Cranbourne Police Station of your then victim. I shall not repeat it. Those offences committed on 13 December 1996 were, like this crime, crimes of violence committed upon a young woman with whom you had had a relationship. Those offences, like this one, derived from your perceptions. In that case your perception, your suggestion, of your victim's infidelity; in this case your perception, your suggestion, of your victim's minor dishonesty. Those offences, like this one, had their origin in the same geographical vicinity, Cranbourne, and had their end in the same geographical vicinity, lonely areas of South Gippsland. Those offences, like this one, show you to be a violent man, a violent man with no self-control, a violent man with no self-control who commits crimes of violence, a violent man with no self-control who commits crimes of violence upon women. There are two major differences between those crimes and this. In this case your attack upon the victim was brief, not over an extended period of time and place, and in this case it was fatal.
By reason of those convictions recorded in the County Court on 2 June 1997 of causing serious injury intentionally and of false imprisonment, and of this conviction in this court of murder, you are a serious violent offender as defined by s.6B Sentencing Act 1991. That has the potential consequences set forth in s.6D of that Act. However, it is not necessary to give added quantum to the sentence in this case pursuant to the provisions of s.6D(a) - protection of the community -because in your case that element is paramount anyway. And it is not appropriate to activate s.6D (b) because, given all the elements in this case and their synthesis, the capacity articulated in s.6D(b) is unnecessary and could result in excess. Accordingly, I do not act upon s.6D(b) Sentencing Act 1991. You are not of course to be sentenced twice for the County Court offences and you are not.
Relevant to the sentence for this crime of murder, however, are not only your prior convictions, in the limited and proper way those may be taken into account in this sentence, but also that you committed this offence after release upon parole which was cancelled and which you knew by your non-fulfilment of the parole terms had to have been cancelled. Those matters in this case have significance in terms of your culpability for this crime, specific deterrence, and protection of the community.
As I said at the outset of this sentence, Mr McCullagh, I consider that a shorter period of availability for parole in this case ought be directed by me than normally I would order. That is because you have shown you are not a good risk on parole and in your case your lack of self-control involves that it would be inappropriate and counter-productive to direct a lengthy period of availability for parole. On the other hand, the period available for parole must be long enough to be of utility, bearing in mind the length of sentence you must serve and the aim of reformation which is sought to be secured.
Of the principles involved in sentencing, they all apply to you.
The first principle is condemnation. The court and the community condemn your murderous conduct. The second is punishment. You are to be punished for that conduct. The third is general deterrence. Men keep being violent to women and men keep needing to be deterred from that violence. The next is specific deterrence. That has a special application in this case. Next, rehabilitation. That is always important and is important in this case. You are still relatively young, Mr McCullagh. It is important for your sake and for the community's sake that you do have a future and that you are given a real hope of reformation. At base, all those principles are grounded upon protection of the community, for it is the protection of the community which gives the criminal law its justification and operation.
Applying those principles to this case, Mr McCullagh, for the murder of Melanie Harnden I sentence you to 22 years' imprisonment. I direct that you serve a minimum term of 19 years' imprisonment before becoming eligible for parole.
Mr McCullagh may be removed.
(Altercation as prisoner was being removed.)
Take it quietly, thank you, ladies and gentlemen. I would be obliged if you would remain in court for a minute or two until Mr McCullagh is removed.
Sine die.
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