DPP v Mahoney
[2009] VSC 249
•15 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1707 of 2008
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH PATRICK MAHONEY |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2009 | |
DATE OF SENTENCE: | 15 June 2009 | |
CASE MAY BE CITED AS: | DPP v Mahoney | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 249 | |
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Manslaughter – Dangerous and unlawful act – Serious multiple blows over several hours – Domestic relationship – Breach of intervention order – Alcohol – Prior convictions – Need for specific and general deterrence – Remorse – Guilty plea
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr D. Dann | Littleton Hackford D’Alessandro |
HER HONOUR:
Kenneth Mahoney, you have pleaded guilty to the manslaughter of Selina Cecilia Te’nohu Tilley. It is now my duty to impose sentence upon you.
On Wednesday, 28 November 2007, you assaulted and killed your partner, Selina Tilley. She was then 46 years old.
Your relationship began after you met Ms Tilley at a homeless shelter in South Melbourne in August 2006. The two of you later moved to various addresses in the Latrobe Valley. You were both heavy and regular users of alcohol and the relationship seems to have been turbulent.
Your counsel has acknowledged a history of violence in the relationship, predominantly but not entirely inflicted by you, which led to Ms Tilley obtaining an intervention order in February 2007. The intervention order prohibited you from contacting or assaulting her or attending within 50 metres of your Morwell residence. The order was varied in September 2007, to allow you to have contact with Ms Tilley, but was otherwise still in place at the time of the offence.
On Tuesday, 27 November 2007, after a period of drinking by both of you, you fell asleep. You were awoken by Ms Tilley hitting you over the head with what you believe to have been a pot or saucepan. You suffered only minor injuries from her actions, being abrasions and lacerations. You reacted by assaulting Ms Tilley and severely bruising her face. Ms Tilley did not seek any medical attention for the injuries she suffered, nor did she report the assault to police.
The following morning you went shopping with your mother and sister. When asked by your sister about the marks on your head, you told her of the events of the previous day and said that you had "belted into" Ms Tilley. You told your sister you were getting some flowers and vodka for Ms Tilley, to make up for the assault.
After returning from shopping, your sister went into the bedroom and saw Ms Tilley sitting on the bed hugging herself with her arms around her legs. She noticed that Ms Tilley had two big black eyes and a graze on the left side of her forehead with swelling around it. When asked if she wanted to go to the hospital, Ms Tilley said she could not go to hospital because she would have to report what you had done to her. She also did not accept your sister's offer to stay at her house, fearing that her appearance would scare your sister's children. Your sister was horrified by Ms Tilley's appearance, which she described as "a real mess".
You left to do some more shopping. When your sister asked you in the car what had happened, you said, "I fucked up, I belted her, I broke her nose." Your sister said you were quite remorseful and told her that you needed help and were going to get professional counselling. After doing more shopping, you were dropped back home around 3 pm.
After you got home you had a further argument with Ms Tilley and assaulted her again. One of your neighbours overheard loud banging and crashing, which she described as sounding like a wrestling match, lasting for almost two hours.
It seems that you either passed out or fell asleep after that violent incident. When you awoke just before 8 pm that evening, you found Ms Tilley, apparently asleep. You couldn't wake her or find a pulse. She felt cold and you were unable to resuscitate her. You called 000 and requested an ambulance. When paramedics arrived, they saw no signs of life and did not attempt to resuscitate Ms Tilley.
You admitted to the paramedics that you had hit Ms Tilley, but said that it had happened two days ago. You told the police who arrived at the scene shortly thereafter that the two of you had had "a major blue" a couple of days ago, and that you had given her "a bit of a drubbing". In your record of interview, you admitted having “lost it” on the 27th, after Ms Tilley had hit you with a pot. You could not recall how many times your struck her or how.
In the record of interview, you denied further assaulting Ms Tilley on the Wednesday afternoon. However, at the plea hearing, you did not dispute your neighbour's account as to what was overheard. Rather, it seems that you cannot recall the sequence of events on the 28th and may have had periods of blackout.
The pathologist who conducted the post-mortem examination concluded that the cause of death was multiple injuries, with the most significant being to the head, chest, and abdomen. There were significant blunt force head injuries, with acute subdural and subarchnoid haemorrhages, cortical contusion, and diffuse traumatic axonal injury. There were multiple bilateral rib fractures with haemorrhages into the abdomen, and evidence of two older rib fractures. There was also multiple bruising over most surfaces of the body, varying in age, though predominantly within 24 hours of death. The pathologist expressed the view that many of the bruises could have been sustained during the adoption of a defensive-type position. Ms Tilley's blood alcohol concentration was 0.24 per 100 millilitres.
Although the autopsy report is consistent with Ms Tilley having received multiple distinct episodes of blunt force trauma, for instance punches and/or kicks, you have only admitted to punching or hitting her and I accept that there is no evidence of kicking. I am also sentencing you on the basis that there is no evidence that you used a weapon.
The maximum sentence for the offence of manslaughter is 20 years’ imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. It is therefore necessary to have regard to the particular circumstances of the offence and the factors personal to you, in determining the appropriate sentence.
You were initially charged with murder. You were committed for trial and pleaded not guilty to the charge of murder. By accepting your plea of guilty to manslaughter, the prosecution accepts that you did not have the requisite intent to commit murder. By your plea, you have accepted that you committed an unlawful and dangerous act, in circumstances where a reasonable person would have realised that they were exposing the other to the risk of serious injury.
In considering the nature and gravity of your offence, I take into account the uncertain nature of the dispute or disputes which led to Ms Tilley's death and the circumstances surrounding that death generally. It is common ground that you had been drinking on the day of her death, although the evidence as to how much you had drunk and how intoxicated you were is unclear. On the one hand, your sister said that you were "pretty pissed" when she dropped you home around 3 pm, and you said that you were so drunk that you passed out for a couple of hours in the late afternoon or evening. On the other hand, none of the police or ambulance officers who attended at your home shortly after 8 pm that evening reported that you were obviously affected by alcohol, and no blood alcohol test was performed on you.
Even accepting that your judgment and self-control were affected by alcohol at the relevant time, you were well aware of your tendency to be unpleasant, argumentative, aggressive and violent when drunk.
There are a number of serious features of your conduct.
This was not an isolated incident. Your counsel quite properly conceded that you had a history of violence towards Ms Tilley. Whilst I am mindful of the need not to sentence you for past conduct for which you have not been charged, the fact is that your behaviour cannot be dismissed as simply being out of character or arising from a spontaneous eruption of emotion.
You also assaulted Ms Tilley in clear breach of an intervention order, which she had obtained for the very purpose of trying to protect herself from your violence. And this was not your first breach of that order. You had previously breached it by assaulting Ms Tilley in May 2007, for which breach you were charged and convicted.
The evidence, including the number and nature of injuries which you inflicted on Ms Tilley, indicates a sustained and violent attack by you over a considerable period of time. Ms Tilley was much smaller and weaker than you. Being seriously affected by alcohol herself, and injured from your assault on the 27th, she would also have been impaired in her ability to respond to your violence.
I have already mentioned that there is no evidence that you used a weapon or kicked her, I also accept that there is no suggestion of pre-meditation. You did attempt to resuscitate Ms Tilley, when you discovered that you could not wake her, and you called an ambulance. You were also forthright in acknowledging to the authorities your behaviour on the 27th. I do accept that your earlier failure to acknowledge the assault on the 28th arose from an inability to recall what had happened that afternoon. You were generally cooperative with the police and made significant admissions during the record of interview.
Nevertheless, in all the circumstances, I regard this as a serious example of the offence of manslaughter.
Before turning to consider your personal circumstances, I want to say a few words about Ms Tilley, and the impact which your actions have had on her loved ones. Selina Tilley was born in New Zealand and came to Australia in the mid-1980s. She was married to Lance Tilley, from whom she separated in 2006. She had one child, Rebecca, who was 12 at the time of her mother's death.
Ms Tilley's death has obviously affected her family and friends. Her daughter Rebecca's life has been changed forever, first by the death of her mother, and then the death of her father a short time later. She now lives with the family of her uncle, Joseph Raynor. Mr Raynor mourns the loss of his younger sister, who he saw as a friend and confident. He feels that all of his positive shared memories of her are marred by the brutal and violent circumstances of her death. Mr Raynor had to identify his sister's body and is still haunted by the memory of her battered face.
I turn now to consider your personal circumstances. You were born in Ireland and moved to Australia when you were three. You are currently 41 and have two brothers and one sister. Your father died in the mid-1980s, your mother is still alive. Your father was drunk and violent towards you in your childhood. After an unhappy family life, your parents divorced when you were in your early years of high school. You lived with your mother, until she apparently left without warning. You were placed in foster care and residential homes, which led to a haphazard schooling which ended at Year 10.
You had lengthy periods living on the streets or in hostels for the homeless. You started using various drugs and abusing alcohol and getting in trouble with the law. You developed an addiction to heroin, which apparently led to the commission of a large number of offences to support your addiction. After various attempts at rehabilitation, you were eventually able to kick your heroin addiction in your mid-20s. However, your difficulties with alcohol remained. Prior to your incarceration, you were drinking a couple of two or three litre casks of port wine each day.
You have worked intermittently at various unskilled jobs in different parts of Australia, including periods of factory and abattoir work and as a maintenance contractor.
In December 2002, you were involved in a significant car accident. You have not worked since then. You had been in an argument with the driver of a car, who then ran you over. You sustained a compound fracture to your right tibia and fibula, which surgery failed to rectify properly. As a result, you remain on crutches.
I have had regard to two reports prepared by Danny Sullivan, a forensic psychiatrist, based on his examinations of you in October 2008 and April 2009. He said that following the car accident, you started experiencing episodes of anxiety and depression and you have been diagnosed with chronic pain syndrome. Since the accident, you have developed problems with anger, mood and substance abuse, primarily benzodiazepine. Further surgery on your leg has been recommended, but you are fearful of having it. However, there is no evidence that you will be unable to receive appropriate medical treatment in the prison environment.
You have been receiving pain medication in prison. However, you are unhappy that you have been given methadone; you believe you should be given morphine instead. Your ongoing disagreement with the prescribed medication regime has been a source of considerable tension between you and medical staff.
You are still experiencing anxiety and panic attacks and some depressive symptoms. You display particular anxiety when required to get in a car or other vehicle, such as a prison van. You have been given medicines for anxiety and depression and they seem to have been effective at reducing your levels of both.
Dr Sullivan describes you as meeting a diagnosis of alcohol dependence, which is currently in remission in the controlled environment of prison. He also believes you may have an anxiety spectrum disorder, with generalised underlying anxiety and panic attacks. Insofar as you displayed depressive symptoms, Dr Sullivan believes they relate to your incarceration and current life situation.
Based on your account to him, Dr Sullivan believes that your offence was intrinsically linked to your alcohol dependence. However, as I mentioned earlier, the evidence as to precisely how intoxicated you actually were at the time of the final assault is somewhat inconclusive, and you were well aware of your tendency towards violence when drunk.
I do accept that your time in custody may be more difficult because of your anxiety and depression, although both problems seem to have improved somewhat between Dr Sullivan's two examinations.
Unfortunately, this is not your first brush with the law. You have a significant criminal history, with 46 prior convictions from 17 court appearances since 1985. Most of these convictions were for offences such as burglary, theft, drug possession or use, or offences of dishonesty, although there are a few convictions involving violence. They were generally dealt through fines or bonds, although there was a period of imprisonment for approximately six months in the early 1990s. Whilst many of your earlier convictions may be readily understood in the context of your heroin addiction, I am told that you had kicked that addiction by the time you were around 25. That leaves more than 25 convictions for offences apparently committed after you were off heroin, for which no explanation has been provided to the court.
The most recent conviction was in May 2007, for breaches of the very intervention order which Ms Tilley had obtained against you.
You have been held in protection units whilst in custody. This has occurred because of your own fears or anxiety as to your personal safety, rather than because of any assessment by the prison authorities that you require protection. Within prison, you have been employed as a librarian and have continued in that role. You have apparently related adequately with other prisoners and correctional staff.
I accept that you offered to plead guilty to manslaughter at a relatively early stage. I consider that you are entitled to a discount on the sentence to be imposed upon you in recognition of your plea. The community has, by your plea, been spared the time and cost of a trial. Furthermore and significantly, the relatives and friends of your victim have been relieved of the trauma of a criminal trial.
You have expressed remorse for what occurred. In the record of interview, you said on more than one occasion that you were so sorry it had come to this. Dr Sullivan believes that you are remorseful and have accepted responsibility for your actions.
You have some prospects of rehabilitation. It is to your credit that you were able to give up your heroin addiction. You have now acknowledged that you have anger management problems, which are heightened by your alcohol abuse. You are currently attending Alcoholics’ Anonymous meetings in prison, to address these issues. You will undoubtedly need to continue to address these issues once you are released from prison. You have family support through your mother and brothers, although you are estranged from your sister. You have expressed an interest in returning to work, should your medical situation be resolved.
On the other hand, given your work history, you appear to have few employment prospects, unless there is a substantial improvement with your leg, including pain levels. You also have a long history of criminal convictions. You appear to have no hobbies or interests except for drinking, and it is not clear that you have any friends apart from your family. Given that you have abused alcohol since your teens, your alcohol addiction is something you must seriously address if you are to rebuild your life after imprisonment.
There is a clear need for both specific and general deterrence in this case. As far as general deterrence is concerned, the taking of a human life is a most serious offence. The courts not only have a duty by imposing appropriate sentences to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence, may cause loss of life. You killed Ms Tilley in a domestic context, a situation of which the courts have often spoken of a need for general deterrence.
Furthermore, the resort to violence in flagrant breach of intervention orders will be met by severe punishment. Intervention orders are a process designed by Parliament to provide the protection of the law to vulnerable individuals, usually women and children, who legitimately fear for their safety. Offenders who disregard such orders, and kill or cause serious injury, must anticipate that an extremely stern view will be adopted by the courts and, save in the most unusual circumstances, they will be subject to severe punishment.
Balancing as best as I can the principles of sentencing enunciated in the Sentencing Act including punishment, specific and general deterrence, and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of nine years. I fix a minimum period of six years before you become eligible for parole.
I declare, pursuant to s.6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to 12 years imprisonment with a minimum non-parole period of nine years.
Further, I declare that the period to be reckoned as already served under this sentence is 566 days, inclusive of today's date. I direct that that be noted in the records of the court the fact that such declaration was made and its details.
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