DPP v Challoner

[1999] VSC 116

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Do not Send for Reporting
Not Restricted

No. 1410 of 1996

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL JOSEPH CHALLONER

---

JUDGE:	Cummins J.
WHERE HELD:	Melbourne
DATE OF SENTENCE:	1 March 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 116

---

Criminal law - sentencing - murder - random shooting - previous conviction set aside - parity of sentence upon retrial - considerations applicable.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N. Parkinson	D.P.P.
For the Applicant	Mr D. Galbally Q.C. with Ms M. Hardman	David Grace & Co

HIS HONOUR:

1. Michael Joseph Challoner, you have been convicted by a jury of the murder at Werribee on Saturday, 18 March 1995 of Mrs Linda Lobos.  You shot her, a neighbour, with a high velocity rifle, from your own home, when she was innocently walking at the front of her own home, which was opposite yours across Parrakeet Road, Werribee.  Mrs Lobos died instantly.

1. On the Saturday in question, your parents, who are decent and law‑abiding citizens, left the family home where they and you resided to have a short holiday together.  At the time you were 28 years of age and qualified as a nurse.  Your father, through extensive military experience and interest, had in the home a number of guns.  They were properly and safely stored in a disassembled and locked state.  Under lock and key was a high velocity Winchester 30/30 rifle.  It was not for your use.

1. After your parents left, you went to the local shops, hired two sexually pornographic (but not violent) videos, got undressed, applied baby oil to your body and played the videos.  At some point you broke into the locked cupboard containing the Winchester 30/30, assembled it, loaded it and went to the front of your home where you aimed at and shot the innocent neighbour opposite.  The shooting was a cruel act of self‑indulgence by you.  That afternoon you were indulging yourself and your act of randomly shooting an innocent person was the nadir of that self‑indulgence.  You are indeed a self‑centred person.  No overt motive for the shooting has been proffered by the prosecution and no reason has been articulated by the experienced psychologist, Dr Byrne, previously called on your behalf.  In truth, the shooting was a cold and self‑centred act by you.

1. Your presence of mind that afternoon is demonstrated in that thereafter you took some limited steps to lay a false trail, including placing a decoy bullet over your neighbour's fence, affecting ignorant interest to bystanders and consuming alcohol to hide behind intoxication.  But your continuing voyeuristic interest in the recovery proceedings across the road brought you undone.  You were watching police proceedings from your front alcove, naked and holding a large knife, when you found you inadvertently had locked the wooden door behind you.  You had trapped yourself in the alcove area between the mesh security door in front of you and the inadvertently locked wooden door behind you.  Your attempts to extricate yourself from your self‑made cell attracted the attention of the police opposite.  Thus you were arrested for the crime you had committed four hours earlier, the sad consequences of which you were still enjoying as night fell over Parrakeet Road, Werribee.

1. To the investigating police, and in evidence before the first jury, you affected partial amnesia.  Your selective account and its derivative in this trial have been rejected as untrue.  The prosecution case against you was indeed overwhelming.

1. It is apparent from your conduct and your continuing stance that you have no remorse for your crime.

1. It is also apparent that you are a person with significant psychological problems.  You are of above average intelligence and do not suffer from any psychiatric illness.  You are not psychotic.

1. You are now 32 years of age, having been born on 21 April 1966, in the United Kingdom.  You and your family migrated here in 1974.  You have a younger sister.  You had a good education and attended Scotch College until the end of year eleven.  You have had continuing parental support.  You undertook and completed tertiary studies as a State Enrolled Nurse in 1988 and had completed three years of training to become a Registered Nurse at the time of this offence.

1. As I have said, it is apparent that you have significant psychological problems.  You are significantly immature for your age.  In February 1995 you had been medically prescribed Prozac.  Since the offence, you have attended a psychiatrist, Dr Polonowita, on six occasions and have been examined by another, most experienced, psychiatrist, Dr Lester Walton.  No reports from either Doctor were presented on your plea.  A psychological history and assessment has been provided in a 10 page report dated 30 July 1996 by Dr Kenneth Byrne, psychologist, which has been tendered on the plea.  I have read it and take account of it, and likewise of the evidence given by Dr Byrne on the previous plea on 31 July 1996 after your previous trial.  No more current psychological material has been placed before me.  You have adopted a stance of recalcitrance concerning the plea before me by your distinguished counsel.

1. You have no prior convictions and no history of violence.  You have conducted yourself co‑operatively and constructively whilst in custody.  Such conduct ordinarily betokens hope of rehabilitation.   But that is counterpoised by your obvious lack of remorse for your crime.

1. Mrs Lobos was an innocent wife and mother who was shot dead by you when she was in the front garden of her home.  The victim impact statements, which I have read with care, are most moving in the anguish and despair that such a random killing evokes.  Mrs Lobos was killed in the presence of her son.  Her son gave evidence before me and he was a most impressive witness and an impressive young man.

1. In all the circumstances, a substantial sentence of imprisonment is called for.

1. You were previously, on 24 May 1996, convicted by a jury (you in that trial having given evidence, which you did not before me).  However, by reason of a legal matter the conviction was quashed upon appeal and a retrial ordered.  Thus you came before me for retrial last month.

1. You have been in pre‑sentence detention for a period of 1400 days before today.  Pursuant to s.18(4) Sentencing Act 1991 1 declare that period of 1400 days as already served of the sentence I impose upon you and I so certify.

1. The learned and most experienced Judge who sentenced you at the conclusion of the first trial sentenced you to be imprisoned for 19 years and directed that you serve a period of 15 years' imprisonment before becoming eligible for parole.  I consider that a somewhat more substantial sentence of imprisonment is justified.  However, for good reason, it has long been the practice of the Court that upon a retrial involving no fault of the accused it is inappropriate to impose a different sentence from the original one unless it is really necessary.  All in all I have concluded that I should not impose a heavier sentence than the earlier sentence imposed upon you.  But that is the minimum sentence that is appropriate.

1. Michael Joseph Challoner, for the murder of Mrs Linda Lobos I sentence you to be imprisoned for a period of 19 years.  I direct that you serve a period of 15 years' imprisonment before you become eligible for parole.

---