Director of Public Prosecutions v McDonough
[2023] VSC 352
•23 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0012
| Director of Public Prosecutions | Crown |
| v | |
| Paul Philip McDonough | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 April 2023 |
DATE OF SENTENCE: | 23 June 2023 |
CASE MAY BE CITED AS: | DPP v McDonough |
MEDIUM NEUTRAL CITATION: | [2023] VSC 352 |
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CRIMINAL LAW — Sentencing — Manslaughter — Plea of guilty — Victim was domestic partner who was attempting to leave the relationship — Serious example of family violence — Early offer to plead guilty to manslaughter — Delay — Extensive criminal history — Poor prospects of rehabilitation — Limited remorse — Sentenced to 11 years and six months’ imprisonment with a non-parole period of eight years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Moran, with Ms A Singh | Office of Public Prosecutions |
| For the Accused | Mr A Halphen, with Mr L Cameron | Slades and Parsons Solicitors |
HER HONOUR:
Introduction
Paul McDonough, you have pleaded guilty to the crime of manslaughter. The applicable maximum penalty for this offence is 20 years’ imprisonment.[1]
[1]The maximum penalty for manslaughter was increased to 25 years’ imprisonment from 1 July 2020.
Circumstances of the offence
Sometime in 2019, you commenced a relationship with the victim, Bekkie‑Rae Curren‑Trinca. You lived together in your unit in Warrnambool. During the relationship you were controlling, angry if defied and sometimes violent. Your violence included punching Ms Curren‑Trinca in the face. As a result, she feared you and told others she felt at risk of being killed or seriously injured by you.
Ms Curren‑Trinca was 28 years old. She was trying to regain custody of her two‑year‑old daughter. In some of her messages to you during November 2019, she wrote of how she missed her daughter, and was hoping to find stable accommodation for herself and her child. The events of November 2019 are full of ‘red flags’; Ms Curren-Trinca was at risk of serious domestic violence, but as subsequent events show, she was unable to escape that risk. Tragically, it seems that at this point in her life, Ms Curren‑Trinca had few accommodation options and was largely unsupported.
In early November 2019, Ms Curren‑Trinca sought assistance in an effort to leave you. She attended Emma House, a domestic violence service, who provided her with two nights’ accommodation. About a week later, she returned to Emma House. She told a worker that she had returned to you due to a lack of options. She said she needed help, she could not take it anymore and she wanted to report you to the police. She did not do so before her death.
Over the next couple of days, you texted and called Ms Curren‑Trinca, but she did not respond. She had been staying at her own expense in a caravan park, in order to escape you.
In mid‑November, you and she exchanged messages. During that exchange, Ms Curren‑Trinca said she was not getting hurt by you again and that she does not know how to talk to you without being scared that you will hurt her. You apologised for hurting her feelings and said you were ‘coming down’. She responded that you did not hurt her feelings; you hurt her face and her eye and could easily kill her.
Ms Curren‑Trinca continued to call Emma House. On 19 November, she told a worker that she could not keep staying with a friend because they were using drugs. On 20 November, she reported that she was staying with a different friend and felt ‘sort of safe’.
On 22 November, Ms Curren‑Trinca was present at your unit. On 24 November, you found her at a friend’s house and became angry when she said that she did not want to see you or leave with you. The next night, friends of yours attended your unit and found Ms Curren‑Trinca there with her bags packed. Your friend, Elizabeth, asked her why she was moving out. Ms Curren‑Trinca said that you had strangled her, given her a hiding and you did not even know you were doing it. She said she could not be around you, that you would kill her one day and she was lucky to be alive.
On 26 November, at around 3:00pm, you returned home earlier than expected. A couple of hours later, neighbours saw Ms Curren‑Trinca running towards the road with you in pursuit. You caught her and told her to get back into the house. You walked in the direction of your unit, with Ms Curren‑Trinca following slowly behind. She then turned and ran again. Again, you chased her. Neighbours described her looking worried and you looking angry. Later they saw both of you return, walking side by side. Ms Curren‑Trinca was limping badly and looked upset; you still looked angry. When you reached the front porch, another neighbour described you picking Ms Curren‑Trinca up ‘like a ragdoll’ and throwing her approximately two metres through the front door. You then walked inside and shut the security door behind you.
During the balance of the afternoon and into the night, you assaulted Ms Curren‑Trinca, hitting her multiple times all over her body. Nearby residents, David and Sharnalee, could hear doors slamming and thuds. They went over to your unit and you told David to come back later. Sharnalee called out ‘are you okay Bek’, but there was no reply. Various other nearby residents heard loud arguing around 12:30am and saw you walking angrily towards your unit between 1:30am and 2:00am.
At 10:00am on the morning of 27 November, you called 000 from a nearby phone box, requested an ambulance and said a woman needed help. You provided the correct address for your unit and then hung up.
At around midday you visited an old friend, Ben. He described you as looking a bit dazed and spaced out. You told him you thought you might have ‘fucked up’ and you kept having flashbacks to a pool of blood, putting the shower water on her and ringing an ambulance. At Ben’s suggestion, and with his assistance, you attended the police station later that day and were arrested. Prior to handing yourself in, you spoke with a friend and told her that you thought you were going away for a long time. You told Ben that you did not mean to do it and you put her in the shower. En route to the police station, you went past your family’s business and said goodbye to your mother.
Once at the police station, you were arrested and made a ‘no comment’ record of interview. You submitted to forensic testing, were charged with murder and remanded in custody, where you have remained.
When ambulance paramedics arrived on the morning of 27 November, they found Ms Curren‑Trinca in a critical condition. She was initially treated at the Warrnambool Base Hospital before being flown to the Royal Melbourne Hospital early in the afternoon. Tragically, she later died on Wednesday, 4 December from blunt force trauma to the head.
You commenced your assault on Ms Curren‑Trinca at approximately 5:30pm on the afternoon of 26 November. The assault lasted for an unknown period of time but it was not protracted or continuous. In the course of the assault, you punched the deceased to her right eye, causing a right orbital wall fracture. You fractured her ribs, fractured her right hand and caused bruising all over her body by hitting her in the chest area, stomach, back and buttocks. You hit her legs, which included the use of a linear shaped weapon. None of these injuries were life threatening.
The prosecution accept that in the course of this assault, you punched the deceased to the face, causing her to fall over and hit her head. The injury sustained by the deceased in the fall caused bleeding to the brain, resulting in her eventual death. This punch constitutes the unlawful and dangerous act that caused her death.
Victim impact statements
Ms Curren‑Trinca’s brother, sister, sister‑in‑law and best friend provided victim impact statements to the Court. They are all struggling with the loss of Ms Curren‑Trinca, and her family has been consumed with grief and heartache. The victims wrote of struggling with the callous and brutal nature of Ms Curren‑Trinca’s death, and they are haunted by seeing her so terribly injured in hospital.
Ms Curren‑Trinca’s sister finds the pain of her loss unbearable. She is traumatised by her violent death and struggles to cope with the aftermath. Her whole family have been shattered by your crime. Ms Curren‑Trinca was much loved, and her family are devastated and struggling to cope with her loss.
Ms Curren‑Trinca’s brother feels like he has failed his sister and has blamed himself for not being there sooner, or reaching out more. He now realises that he could not have stopped your senseless and brutal act, but he continues to miss his sister every day. Ms Curren‑Trinca’s sister‑in‑law also struggles with the loss of her precious friend; she described as ‘soul shattering’ the moment she learned of your violent and senseless act.
Ms Westlake, Ms Curren‑Trinca’s best friend, said she has felt sad, angry, lost, shut down and stressed since the death of Ms Curren‑Trinca. She misses her every day and will always love her. Ms Curren‑Trinca was the godmother to her young daughter and her daughter also misses her Aunty Bekkie.
It is clear from all the victim impact statements that Ms Curren‑Trinca was loved and valued by those who knew her, and your actions have caused profound and lasting pain to her friends and family.
Personal circumstances
You are 41 years old and were born in Warrnambool. You are the second eldest of five children, with three sisters and one brother. Your parents run a successful local business and all your siblings are gainfully employed. You had a stable upbringing and caring parents, although you recall being regularly physically disciplined by your father due to your poor behaviour.
You attended primary school in Warrnambool and commenced secondary school at Warrnambool Secondary College. You were bored and uninterested at school, which led to frequent fights and multiple suspensions. You were expelled part‑way through Year 8, after which you enrolled in Emmanuel College, where you completed Year 9. You then left school and focussed on motocross, which was something you enjoyed and excelled at. When you were 17 years old, you fell off your dirt bike while performing a jump, resulting in a loss of consciousness and hospitalisation for around six hours. You did not pursue motocross after this.
You have had a number of accidents, including being hit by a car when you were aged 18. At other times, you have been rendered unconscious as a result of fighting, usually while in prison. You experience chronic pain in your right arm and leg resulting from previous bone injuries. You are medicated for high cholesterol and have hepatitis C.
You commenced a fitter and turner apprenticeship, which you completed, but for the paperwork. You then worked with your parents in their company until around the age of 24, and have rarely worked since.
You left home at age 22 and commenced living with your then‑partner, Casey. You have one son who was born in September 2008. Both you and your then‑partner used drugs, and the relationship was marred by family violence. It broke down after you were sentenced to a significant term of imprisonment in 2011. Your son, Tyler, was placed into the care of your parents when he was three years old and has lived with them ever since. You have no contact with Tyler, but you receive updates via your mother. You returned to live with your parents in 2014, however you were asked to leave after an incident and have not lived at home since. You no longer have any contact with your father or siblings, due to their frustration and disappointment with your drug use and behaviour. You still speak with your mother every few weeks.
You have a long history of illegal drug use. You commenced smoking cannabis and drinking alcohol as a teenager, and used cannabis excessively between the ages of 16 and 28. Between the ages of 18 and 20, you used ecstasy fairly regularly. You used both amphetamine and methamphetamine from the age of 20, and used ice heavily from 2013. You have used heroin irregularly over the years. Your drug abuse has resulted in a chaotic and unstable lifestyle, and significantly contributed to your offending behaviour.
You have a very lengthy and relevant criminal history. You have prior convictions dating back to 2001 for offences including unlawful assault, recklessly causing injury, behaving in a riotous manner in a public place, intentionally damaging property, recklessly causing serious injury, threat to inflict serious injury and aggravated burglary. You also have multiple prior convictions for driving offences. In 2008, you committed the offence of recklessly causing injury against your then‑partner, and received a two‑month wholly suspended sentence, which you went on to breach. Also in 2008, you unlawfully assaulted your sister and received a one‑month wholly suspended sentence. Your most serious prior conviction for violence was dealt with by the County Court in 2011. I am told the victim of that offence was the father of your ex‑partner.
You have breached good behaviour bonds, suspended sentences and community correction orders imposed by both the Magistrates’ and County Courts. Between October 2020 and this offence, you were largely in custody. You spent approximately five months on parole in 2013, and a further nine months in late 2014 into early 2015. On 28 May 2019, you were released from custody, having served a short sentence for driving offences, possession of methamphetamine, offending while on bail and make threat to kill. On 26 November 2019, you were dealt with in the Warrnambool Magistrates’ Court for minor offending. You received two days’ imprisonment which you had already served, meaning you were released the same day you commenced your assault on the deceased. You were also on bail for other matters at the time you killed Ms Curren-Trinca, which aggravates your offending.
Psychological and psychiatric material
Five expert reports were tendered on your behalf, together with a 2018 letter from your general practitioner.[2] Collectively, the material was substantial and the history you provided to the different clinicians was not necessarily consistent. Ms Cidoni assessed you in custody in 2017 and found you were suffering intense paranoia. You had used ice in prison, and you told her that you relapsed almost immediately every time you were released. In her opinion, you had symptoms of active psychosis and were in need of rather urgent psychiatric treatment.
[2]Report of Ms Gina Cidoni, Psychologist, who assessed you on 14 January 2017 (report otherwise undated); Report of Dr Fiona Toal, Consultant Psychiatrist with Forensicare, 15 May 2017; Report of Dr Nicholas Owens, Forensic Psychiatrist, 15 March 2013; Supplementary report of Dr Nicholas Owens, 14 April 2023; Report of Dr Sara Fratti, Neuropsychologist with Arbias, 18 April 2023; Letter of Dr O’Brien, General Practitioner, 15 February 2018.
Unsurprisingly, her report led the Magistrates’ Court to request a Forensicare report, prepared by Dr Toal, also in 2017. Dr Toal said you described three significant past relationships, each of which you described as violent. You said you fought with all your partners and taunted each other. Your paranoia started around age 24. You had two admissions to the Warrnambool Hospital for approximately two weeks in 2014 and 2015, and on each occasion you were diagnosed with drug‑induced psychosis. You told Dr Toal you attempted suicide with a gun, however the gun misfired or slipped. I note on other occasions, you deny this was a suicide attempt. In Dr Toal’s opinion, you had no symptoms of a major mental illness. You had some paranoia, likely due to past drug use, and your offending was closely linked to your drug use. She did not consider there was any need for psychiatric treatment.
Dr Owens assessed you earlier this year in custody. You told Dr Owens you were sexually abused as a young child but you were unwilling to discuss this further. In 2020 you were transferred from mainstream prison to the St Paul’s Unit, with a working diagnosis of schizophrenia and depression. You received injections of an anti‑psychotic, but you did not think it made any difference. After six or nine months, you were removed from the unit as you refused to share your cell and insisted you would assault your cellmate if you had to share. In December 2020, you refused any further injections. You also refused oral anti‑psychotic medication, but you were prescribed anti‑depressants and pain medication. In Dr Owens’ opinion, you have a complex of mental health problems which are challenging to treat effectively. These consist of a chronic psychotic disorder which is most likely schizophrenia, although your psychotic symptoms have continued when on anti‑psychotic medication. Equally, when not on medication, there is little evidence that your symptoms have resulted in a disturbance. You also have a neurocognitive disorder, which is likely due to previous head injuries, drug use and chronic psychosis. You have a personality disorder, predominantly of an anti‑social type, which includes deceitfulness, irritability, aggressiveness, reckless disregard for the safety of yourself and others, and a failure to conform to social norms with respect to lawful behaviours. You also have a severe substance use disorder.
In his supplementary report, Dr Owens opined that it is more likely than not that you have schizophrenia. He drew no connection between your mental illness and offending behaviour. Dr Owens could not ‘rule out’ a link between your psychotic symptoms and this offending, but said it did not seem likely. At the time of the offending, you were using significant amounts of illegal drugs, and traits of your personality disorder, such as aggression, were likely aggravated by your use of stimulant drugs.
Finally, the report of Dr Fratti stated that you have a full‑scale IQ of 77, which places you in the borderline range. Your cognitive profile is consistent with a mild acquired brain injury due to multiple causes, including schizophrenia, alcohol and drug abuse. In her opinion, your complex mental health difficulties can be regarded as a contributing factor to poor decision‑making in the lead up to the offending. Substance abuse has clearly played a major role in your offending history, both past and present. Her ‘impression’ is that imprisonment would weigh more heavily on you compared to someone in good mental health.
Your counsel relied on Verdins[3] principle 5. Relying on the opinion of Dr Fratti, he submitted that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health. The prosecution did not concede that Verdins is enlivened in this case. In my view, on the material, Verdins has no real application here. Dr Fratti’s opinion, expressed as an ‘impression’, does not provide cogent evidence sufficient to allow me to make any favourable finding. Further, Dr Owens notes that you are quite familiar with the prison environment, and he does not suggest that you would find imprisonment more burdensome due to your mental health problems.[4]
[3](2007) 16 VR 269 (‘Verdins’).
[4]Dr Owens makes this observation in his supplementary report, under the sub‑heading ‘To what extent would Mr McDonough find a term of imprisonment more burdensome than a member of the ordinary prison population?’.
Other matters
You have pleaded guilty to this offence and that entitles you to a sentencing discount. You were initially charged with the more serious offence of murder, and once the prosecution indicated they were prepared to accept a guilty plea to manslaughter, the matter resolved. In those circumstances, your plea is properly treated as having been made at an early stage. Your plea has substantial utilitarian or practical value. Ms Curren‑Trinca’s family and friends were spared the stress and trauma of a trial. Witnesses were spared the ordeal of giving evidence and being questioned about matters that may have caused them some distress. The Court was also saved the time and expense of running a criminal trial. Additionally, given the overall backlog in the criminal justice system caused by the COVID‑19 pandemic, a guilty plea continues to attract an additional utilitarian benefit which must be adequately reflected in sentencing.[5]
[5]Worboyes v The Queen [2021] VSCA 169 [35]; (2021) 96 MVR 344 [35], reaffirmed in Papagelou v The Queen [2022] VSCA 53 [28].
Whilst your counsel did not rely on delay, the prosecution fairly informed the Court that you had offered to plead guilty to manslaughter on 2 July 2020. That early offer was rejected, and the prosecution persisted with the more serious charge of murder until late 2022. In those circumstances, I find there has been considerable delay through no fault of yours. You have spent over three years on remand. There is no evidence as to how this delay has impacted you personally, however I accept as a general proposition that having the most serious charge of murder hanging over your head for such a lengthy period of time would have been a source of stress and anxiety.
You were remanded into custody just prior to the COVID‑19 pandemic. Within a few months, substantial restrictions were in place throughout Melbourne, and the prisons imposed their own strict restrictions. Prisoners were more frequently locked down, and access to courses and programs was reduced or ceased altogether. I accept conditions in custody were more difficult and isolating, due to these restrictions, and I take that into account by way of mitigation.
Your plea of guilty provides some evidence of remorse, and reflects an acceptance of responsibility by you for causing the death of Ms Curren‑Trinca. You told Dr Owens that you have to live with ‘what happened’, and have frequent nightmares featuring the victim. You told Dr Fratti that there is not a day you do not think about what happened, and the pain you have caused Ms Curren‑Trinca’s daughter and family.
I accept you feel guilt and regret for what you did. However, you told both Dr Owens and Dr Fratti that you do not know how ‘it happened’. You told Dr Fratti that you have now taken full responsibility for your offending, however you also provided Dr Fratti with a self‑serving account of what happened on this night, which your counsel did not press and I do not accept. You were reluctant to discuss the offending with Dr Owens, and gave an account that was at least partly exculpatory. Dr Owens found that you have limited insight into yourself and your offending behaviour, although you knew you had to take responsibility for what you did. Dr Owens did consider that your insight was likely adversely impacted by your neurocognitive disorder. It would be unusual for a person with reduced insight to be genuinely remorseful, and in my view, your remorse is limited.
I do not regard your immediate post‑offence conduct as evidencing remorse, but I accept it is nonetheless relevant. Whilst you did not remain at the scene, you did call an ambulance. In the hours that followed, you expressed to friends that you knew you had done something seriously wrong, and agreed that you should go to the police station. You handed yourself in the same day, saving the police and the community the time and expense of a more expansive investigation. By your actions, you acknowledged that you were responsible for what had happened to Ms Curren‑Trinca, and your behaviour was consistent with you feeling guilt and regret for what had occurred.
Dr Owens considered that if rehabilitation is to succeed in your case, you will need to develop a more responsible attitude towards engaging with mental health services. His overall assessment was that your prospects of rehabilitation are guarded. To your credit, you have remained drug‑free while on remand and are a yard billet. You have undertaken some courses, and most recently completed a Peer Educator Training Program. This qualifies you to share your experiences with younger offenders, in the hope they do not make the same poor choices that you have made for most of your adult life. Dr Fratti found that despite your cognitive limitations, you do have the capacity to engage in meaningful structured activities, such as simple work, and if you were to adhere to structure when eventually in the community, this would reduce your risk of recidivism.
However, there are a number of reasons to question your ability to rehabilitate. You have mental health problems of a type that make successful treatment or rehabilitation challenging. According to Dr Fratti, any successful rehabilitation would be entirely dependent on your motivation and active participation to make positive behavioural changes in the future. According to Dr Owens, you briefly engaged with mental health treatment in 2020, but then completely disengaged when asked to share a cell. You have declined to engage with prison‑based services designed to assist your rehabilitation. You have a severe and long‑standing drug abuse problem, however you told Dr Owens that you had participated in drug and alcohol counselling in the past, but did not find it helpful. On the material I have, your willingness and ability to meaningfully engage with any treatment is doubtful. You have a long history of breaching court orders, including orders designed to assist you when in the community. You also have a history of quickly returning to drug use and offending when released from custody. Overall, I find your prospects of rehabilitation to be quite poor. The principles of specific deterrence and protection of the community are both relevant when determining the appropriate sentence.
I turn now to the seriousness of your offending. Your counsel helpfully referred me to a number of cases where offenders were sentenced for manslaughter.[6] I have found those decisions of assistance, although every case ultimately turns on its own unique facts and circumstances.
[6]Freeburn v the Queen [No 2] [2020] VSCA 176; Naddaf v the Queen [2020] VSCA 41; Mocenigo v the Queen [2013] VSCA 231; DPP v Turner [2017] VSC 358; R v Masatora [2017] VSC 277; R v Drummond [2012] VSC 505.
Your counsel submitted you were drug affected at the time of this offending. He also submitted that you had been receiving anti‑psychotic treatment from the Western Region Alcohol and Drug Centre in Warrnambool, however not in the month or two prior to this incident. It is unclear what that treatment was, but in any event, neither your drug use nor your mental health issues mitigate your offending. Your moral culpability for this crime is high.
The prosecution submitted that I should find there was a delay between Ms Curren‑Trinca sustaining the ultimately fatal injury, and you calling an ambulance. When pressed, the prosecutor conceded it was impossible to know what time elapsed between you causing the head injury; the deceased becoming visibly very unwell; you realising the extent to which she was seriously unwell; your decision to leave; and finally, the calling of the ambulance. You told Dr Owens that the deceased lay down, and later you realised her breathing was ‘funny’. You tried to rouse her by placing her in the shower, and sometime later, left the unit and called an ambulance. I accept there must have been some delay between the deceased becoming very unwell and you calling for assistance. Beyond that, I am unable to make any finding. I also accept that you did not remain with Ms Curren‑Trinca and attempt to assist her while you waited for the ambulance, but instead chose to remove yourself from the scene.
The unlawful and dangerous act causing death did not involve a weapon; there was a single strike, which caused the deceased to fall and hit her head. However, that single strike cannot be viewed in isolation. A most serious aspect of your offending is that it occurred in the context of ongoing family violence. Ms Curren‑Trinca was attempting to end the relationship, and you knew that. You also knew she was scared of you. Ms Curren‑Trinca understood the danger you presented to her life and she had every right to leave you. But when she tried to flee on this day, you caught her and used your greater strength and size to physically throw her into your unit. Once she was inside, you violently assaulted her and, ultimately, struck a blow to her face that caused her death. This is a serious example of family violence committed against a young woman who was trying to escape from her life with you.
Serious violence continues to be committed by men against their female partners, or former partners. It is prevalent and deeply shocking. Through sentencing, the courts must send a message to other would‑be offenders that if you commit such crimes, you should expect to receive a substantial term of imprisonment. It is necessary to publicly denounce your crime, and punish you for causing the death of Ms Curren‑Trinca.
On the charge of manslaughter, you are convicted and sentenced to 11 years and six months’ imprisonment. I fix a non-parole period of eight years and six months’ imprisonment.
I declare you have served 1304 days by way of pre-sentence detention, such period to be reckoned as time already served under this sentence.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I state that but for your plea of guilty, the sentence I would have imposed is 13 years and six months’ imprisonment and I would have fixed a non-parole period of 11 years’ imprisonment.
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