DPP v McIntosh
[2004] VSC 75
•16 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1480 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER GERARD McINTOSH |
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SENTENCE
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 20 November 2003, 18 December 2003, 23 February 2004 | |
DATE OF SENTENCE: | 16 March 2004 | |
CASE MAY BE CITED AS: | DPP v McIntosh | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 75 | |
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CRIMINAL LAW – Sentencing – Attempted murder – Armed robbery – Pleas of guilty – Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S.E. Pullen | Office of Public Prosecutions |
| For the Accused | Mr I. Hayden | Victoria Legal Aid |
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HIS HONOUR:
Mr McIntosh, you may be seated.
Mr McIntosh, you have pleaded guilty to two counts of attempted murder and to one count of armed robbery. The offences occurred on Wednesday, 21 August 2002 in broad daylight at commercial premises, Eagle Leather, situated at 58 Hoddle Street, Abbotsford. You were a regular customer of that business. In the course of an armed robbery but for no justifiable or excusable reason, you attempted to murder two men working there. They had done nothing but do their work and treat you properly. You repaid their civility by grievously attacking them with a hammer. You attacked them by repeatedly and forcefully striking each of them to the head with the hammer while each of them lay on the floor with their hands tied behind their backs. Each of your victims is lucky to be alive. You intended that each of them by your attack would die. When you attacked them each of them was bound and vulnerable. You left them for dead. These two offences are in the worst category of attempted murder.
You also committed an armed robbery upon the second of your victims. This was of money, bondage equipment and sexual aids – items sold by the business and stolen by you. You stole $982.00 in cash and some $15,000.00 worth of items from the premises. You were unemployed at the date of the offences and had been unemployed for some time.
Eagle Leather was a small business operating at 58 Hoddle Street, Abbotsford, specialising in the sale of leather and latex bondage and fetish wear. It also sold a variety of sexual aids and pornographic and bondage videos. It had been operating there and at a previous address for a number of years. You were a regular customer of the business, having attending it on some 30 previous occasions. You were a homosexual man heavily involved in bondage and discipline. At the date of these offences you were 34 years of age. The first victim, Mr David Oakley, aged 33 years, had worked in the business for merely six months. He was the personal assistant to the owner of the business, Mr Brian Mier. He had done nothing to justify, excuse or cause your attack upon him. He was simply performing, and performing properly, the lawful work he was employed to do. The second victim, Mr William Browning, aged 49 years, was working in the showroom on the day you attacked him. He had been so employed in the business for some 2½ years. He too had done nothing to justify, excuse or cause your attack upon him. He too was simply performing, and performing properly, the lawful work he was employed to do. The two victims were the only employees working at the premises on the day you attacked them.
You Mr McIntosh are now 36 years of age, having been born on 1 September 1967 in Adelaide. At the age of 3 weeks you were adopted. You have had scarcely any contact with your biological mother and none with your biological father. Your adoptive father was violent and died some 15 years ago. Your adoptive mother cared well for you. She now resides interstate. You have two adoptive sisters. You were educated in regional South Australia to Year 10 level but did not complete that year. You were then 14 years of age. You went to Adelaide and undertook various jobs. You learnt of your sexual orientation in your early teenage years, in particular your pleasure in bondage. After you went to Adelaide you became an active participant in bondage and sadomasochistic practices. This continued when you moved to Sydney and to Brisbane. These practices were central to your interests and to your lifestyle. You moved to Melbourne and your bondage and sadomasochistic interests and lifestyle continued. This conduct was primarily but not exclusively homosexual and frequently autoerotic. In Melbourne you frequently attended premises and clubs where like-minded persons were present. Most unfortunately, on 29 May 1998 when you were performing consensual erotic sadomasochistic practices with a 33 year old man at his premises the man died from asphyxiation by a rope tightened around his neck. You pleaded guilty to the manslaughter of the victim before Vincent J in this Court on 3 September 1999. The circumstances of the matter are fully set out in the sentence imposed by His Honour on 3 September[1] and I shall not repeat them. After a review of the facts, His Honour concluded that "the deceased did not agree to be strangled with the application of sufficient force" to strangle him and that you were equally culpable for the death either on the basis of an unlawful and dangerous act or of criminal negligence. Sensitive to the consensual character of the general context in which the behaviour occurred, His Honour sentenced you to 5 years' imprisonment for manslaughter with a minimum term of imprisonment before eligibility for parole of 3 years. He also sentenced you to concurrent terms of imprisonment for related counts (to which you pleaded guilty) of theft of property. You were released on parole on those sentences on 21 July 2001. You were on that parole on the date of these offences. You were remorseful as to what had happened to that victim in 1998 and much affected by it. However you continued to pursue your bondage and sadomasochistic interests and lifestyle. Thus it was that you were a regular attendee to Eagle Leather.
[1]R v McIntosh (1999) VSC 358.
You again attended Eagle Leather on Wednesday, 21 August 2002.
Shortly after midday you entered the premises, which consisted of a showroom at the front on ground floor level and a storeroom at the rear. Administration offices were upstairs. When you entered the premises you were carrying a large bag, secreted within which was a large bladed weapon or knife. You remained in the storeroom for a considerable time, looking at various items on display. At 12.30 pm, you hired a pornographic video which you watched in a video booth. Over the following hour a number of customers and various other people related to the business entered the premises and observed you browsing through racks and displays. You then left the premises for a short period of time saying that you were going to get some money. When you returned you selected another pornographic video and at about 2.00 pm approached Mr Oakley and Mr Browning who were at the sales counter. The premises were empty of any other customers. Then while the sale was being processed you produced the large bladed weapon and said "Move away from the till. Don't be a hero". You then handed Mr Browning a length of rope from the premises and instructed him to bind Mr Oakley's hands behind his back. You specifically instructed Mr Browning not to cross Mr Oakley's wrists and to place his palms together. Once this was done you then used more rope from the store to bind Mr Browning's hands behind his back in the same manner. Both victims were then moved by you out of sight from the street towards the northern wall of the premises and made to lay face down on the floor. You then used more rope to tie the ankles of both victims. You then asked about the location of the store keys and the operation of a security camera that was mounted on a wall above the counter area. Using the store keys, you locked the front door of the premises and then used a hammer you had found in the storeroom area to smash the security camera. You also cut a line to the store's intercom system. A pair of bolt cutters belonging to the store were located by you in the vicinity of the intercom system. You then stole $982.00 from the cash register and from a cash tin located in a small room next to the sale counter. You then used the store keys to open a number of locked display cases and stole various items of leather and latex bondage equipment and a large number of assorted sexual aids. You placed the stolen property in the large bag that you had brought to the store. You then asked about the location of the back door keys. Mr Oakley offered to show you the location of the keys and was pushed by you towards the rear storeroom. While in the rear storeroom, you placed Mr Oakley face down on the floor and struck him forcefully four times to the rear of his head with the hammer you had found at the premises. His hands were still bound behind his back. You intended to kill Mr Oakley. You believed you had killed him.
You then decided to kill Mr Browning to prevent your identification as Mr Oakley's killer. Accordingly you returned into the body of the shop and struck the still bound Mr Browning to the head with the hammer forcefully three or four times.
You then used the premises' phone to call a taxi, supplying a false name and requesting to be collected from the Access Self Storage facility in Langridge Street, Abbotsford, a street away from the premises of Eagle Leather. You had attended at that self storage facility that day some minutes before first entering Eagle Leather at 12.30 pm enquiring about storage space.
In an attempt to destroy evidence of the offences you sprayed a bottle of 'Zippo' lighter fluid around the interior of the store and ignited a fire on top of some telephones in the south west corner of the premises. The fire caused a minor amount of damage and set off the smoke alarm.
You then left the premises via a rear roller door and went to the Abbotsford Access Self Storage facility in Langridge Street that you had attended earlier that day. The time was now around 3.00 pm. A taxi then arrived which you had booked in the name of John Brown and you took that taxi to another Access Self Storage facility in Normanby Street, South Melbourne. You there placed some of the property that you had stolen into a hired locker. You then travelled to Spencer Street Railway Station and changed your clothing in a public toilet. You then hired another locker and placed your clothing and the remainder of the stolen property into this locker. You changed your shoes and the next day sought to change your appearance by having your beard shaved off and a number two haircut. You then returned to the premises at which you were living in Pascoe Vale South. Fortunately an astute customer at Eagle Leather had recognised you and after due police enquiry you were arrested at your home address by police at about 5.30 pm the next day, Thursday, 22 August 2002.
Some time after you had left the premises of Eagle Leather, the grievously injured Mr Browning managed to undo his wrist binds, ran to the grievously injured Mr Oakley in the rear storeroom to attend him and then under extreme difficulty raised the alarm.
You were interviewed at the Coburg C.I.B. office that Thursday evening from 7.05 pm to 7.46 pm. The interview comprised 203 questions and answers and was audio recorded. You were then interviewed at the Homicide Squad offices, St Kilda Road, Melbourne later that evening from 10.52 pm to 11.59 pm. That interview comprised 306 questions and answers and was video recorded. At 11.55 pm you were charged with the offences to which ultimately you have pleaded guilty before me.
The knife you used initially to threaten the victims at Eagle Leather has never been found. You falsely denied to the police that you had had or produced the knife. The independent statements made by the two victims unequivocally establish the existence and use of the knife.
In the police interviews you substantially admitted your conduct (apart from the knife) at the premises of Eagle Leather the day before. You said that you did not go to Eagle Leather with the intention of committing a robbery and that your actions inside the premises were unpremeditated and spontaneous, in emotional response to your being taunted about your manslaughter conviction. You sought to advance a reason which you said triggered your conduct: that one of the victims had taunted you about your earlier manslaughter conviction. I have examined the video of your Homicide interview a number of times. The explanation you advanced was quite detailed and sophisticated. However your explanation – that one of the victims taunted you – is totally false. You are not sentenced for your untruthfulness but that untruthfulness needs to be stated as a matter of record.
It is clear that you brought with you to the premises of Eagle Leather that day a large bladed weapon or knife. Both victims in their statements, Mr Oakley at D.25 and Mr Browning at D.19, made independently of each other, said so and describe it. I entirely accept their accuracy and truthfulness. Next, you attended the Abbotsford Access Self Storage premises some half hour before you first entered the premises of Eagle Leather, and there enquired about storage for items. The witness Mrs Jankovic initially stated that you attended there a week earlier (D.83) but later stated (D.86) that you attended on the day of the attack, not a week earlier, at between 12 noon and 12.40 pm when she went for lunch. Your possession of the Zippo lighter and lighter fluid is explicable by reason of your being a smoker. The grey paint you used to neutralise the security camera did not come from Eagle Leather. All those facts (apart from the Zippo lighter and fluid) are inconsistent with your claim to police that the events which transpired at Eagle Leather were spontaneous. However it is your allegation to investigating police that you were taunted by the first victim about your history of manslaughter which is especially false and which unravels upon analysis. In your police interviews you stated that Mr Browning was the taunter, it was he whom you first attacked and left for dead, and that you then attacked Mr Oakley to eliminate a witness. However the facts bring your story undone. The first man attacked was Mr Oakley, who had never met or seen you previously (D.24). He was an administrative employee who worked on the first floor of the premises and did not serve customers. He was not in the bondage or sadomasochistic scenes. He had never previously served you. The only reason he served you on 21 August 2002 was that the owner was unexpectedly absent and so Mr Oakley left his duties upstairs and came downstairs to help Mr Browning with serving customers. It was Mr Browning who knew you from previous visits by you and from elsewhere. He knew your background. There is not a shred of evidence that Mr Oakley knew anything about you. While you were in the showroom Mr Browning said to Mr Oakley to keep an eye on you. That was the extent of information about you possessed by Mr Oakley. In your police statements you said it was Mr Browning who taunted you about your past and that you took him to the rear of the premises, attacked him with the hammer and left him for dead; and that then you attacked Mr Oakley back in the shop to eliminate a witness (Q's 30-31, 41-44, 48, 59, 74 and 87 in the audio interview; Q's 336, 361 and 380-390 in the video interview). You had to say that, because Mr Oakley did not know you. But the evidence reveals it was not Mr Browning but Mr Oakley whom you first attacked at the rear of the premises, because the victims lived to make statements to investigating police. The man you first attacked had no knowledge with which to taunt you. Your story of taunting is false.
As well as your police statements revealing a manipulative dishonesty, they also reveal gross callousness and lack of remorse. I shall not distress persons present including the victims by quoting your terminology. It can be found in particular at Q's 43, 59, 83, 90 and 94 in the audio interview and Q's 383, 388, 390, 394, 398, 399 and 403 in the video interview. Answer 403 is especially cruel. You said that you sought to destroy the premises by fire and then you left. You described your state of belief thus (Q.427): "I had assumed that one was dead and the other dying". What is wholly absent from your interviews is remorse.
It is clear from your attendance at Access Self Storage Abbotsford around midday before you first entered Eagle Leather and from the fact that you entered Eagle Leather with a large bag in which a large bladed weapon or knife was secreted, that at the time you first entered Eagle Leather on 21 August 2002 you were contemplating committing an armed robbery there if the circumstances permitted. You spent considerable time that day at Eagle Leather while there were other customers present in the showroom. It was only when the showroom was empty of other customers that you struck.
Your first victim, Mr Oakley, was rushed by ambulance from Eagle Leather to the Alfred Hospital. He suffered a severely fractured skull and severe brain injury. Emergency surgery was performed on him. He spent several days in a coma and on a life-support system. Mr Oakley has had very substantial medical attention from that time to this. Initially he was discharged from the Alfred Hospital on 5 September 2002 to Epworth Rehabilitation but had to be readmitted to the Alfred Hospital on 16 September 2002 and underwent further head surgery. Complications ensued. He was transferred to Epworth Rehabilitation on 8 October 2002 and discharged from there on 18 October 2002 but has had to receive extensive outpatient and other assistance since. I have examined the reports tendered before me of Mr P. D'Urso, neurosurgeon of 25 November 2003 and of Dr J Olver, consultant physician of 4 December 2003 as to Mr Oakley's medical history, condition and prognosis following your attack upon him. It is clear that Mr Oakley has suffered grievously, both physically and mentally, from your attack. He has right sided weakness affecting his arm and leg, significant expressive dysphasia and visual field loss on the right side (right homonymous hemianopia) which as well as significant physical disability have produced significant psychological damage. In the opinion of his neurosurgeon, Mr Oakley "will remain permanently incapacitated for the rest of his life as a result of the brain injury and the psychological stress of the assault". His condition should stabilise. He is not yet able to return to work and is unlikely to in the near future. He needs the help of an attendant carer. He can no longer drive a motor vehicle.
I have carefully read the victim impact statements of Mr Oakley and of his female partner and of his parents. They are moving and impressive documents. I have examined the police statement of Mr Oakley and have observed him in court. I consider that Mr Oakley is an entirely truthful and impressive man.
Your second victim, Mr Browning, also was rushed by ambulance from Eagle Leather – in his case, to the Royal Melbourne Hospital. The injury to his head was so severe that ambulance officers thought he had been shot to the head by a gun. He underwent emergency surgery at the Royal Melbourne Hospital for a depressed skull fracture. He had suffered right occipital fracture with underlying contusion and oedema. He was in a coma for 20 hours. He underwent an extensive craniectomy. He suffered left homonymous hemianopia and expressive dysphasia. He required intensive medical treatment. He was discharged from the Royal Melbourne Hospital on 28 August 2002 for in-patient rehabilitation at Bethesda Hospital. He has been readmitted to the Royal Melbourne Hospital for further medical procedures and review. He continues to have speech difficulty and mild homonymous hemianopia. Fortunately his medical prognosis although guarded is relatively good. I have examined the report tendered before me of Mr B. Kavar, neurosurgeon and dated 8 December 2003 and of Ms J. Brewin, psychologist and dated 21 August 2003. Mr Browning suffered grievously, both physically and mentally, from your attack upon him and Mr Oakley. The psychologist Ms Brewin in her report stated (p.4):
"Geoff Browning will never be as he was before this event. He has suffered a loss to his cognitive ability, a change to his personality, difficulties with his relationships, and the possibility of never being able to work again."
I have carefully read the victim impact statement of Mr Browning and of his three daughters. They are moving and impressive documents. I have examined the police statement of Mr Browning and have observed him in court. I consider Mr Browning is an entirely truthful and impressive man.
Mr McIntosh, tendered on your behalf is a report of Mr I. Joblin, psychologist and dated 18 August 2003. That extensive report of that experienced psychologist revealed no psychological condition which would go any way towards excusing or explaining your conduct. You suffer no psychiatric illness. You are not psychotic. You suffer no cerebral dysfunction. I have gone back and examined the psychiatric report of Dr J. Barry-Walsh and dated 20 August 1999 tendered before Vincent J the last time you were before this court. That reveals nothing relevant either. You were depressed at that time. Mr Joblin in his report of 18 August 2003 concluded that you have a psychosexual disorder. But that was not why you attacked your two victims at Eagle Leather on 21 August 2002. A psychiatric report from Dr E. Tuck, Director, Medical Services and dated 14 August 2003 adds nothing further psychiatrically that is relevant. You suffer from diabetes and other medical conditions which can be properly treated in custody. Those conditions no doubt will add to the burden upon you that custody involves and I take that consideration into account in imposing sentence upon you.
Mr McIntosh, you were previously convicted in the District Court of South Australia on 30 November 1987 of building breaking and felony and of damaging property and sentenced to a suspended term of imprisonment and related orders. Although that is a relevant prior conviction I do not have regard to it as it was sustained 16 years ago and when you were relatively young. As I have said, in this Supreme Court on 3 September 1999 you pleaded guilty to one count of manslaughter and three counts of theft and sentenced to an effective term of imprisonment of five years with a non-parole period of three years. That offence of manslaughter was vastly different from the offences for which you are to be sentenced today. However it should have brought home to you the value of human life. Further, you were still on parole for the 1998 offence of manslaughter when you committed these offences. Your parole was not due to expire until 8 July 2003. I regard that as a significantly exacerbating factor in this case. You have been in custody since your arrest in this case on 22 August 2002 and so a period of that parole theoretically is available to you. However in sentencing you I ignore that administrative matter as it also is only theoretical in view of the sentences I today impose upon you.
By reason of these offences you are a serious violent offender as defined by s.6B Sentencing Act 1991 and as governed by the provisions of Part 2A Sentencing Act 1991. However I consider it is not appropriate to invoke the provisions of that Part in today sentencing you, because the proper sentences to be imposed upon you according to normal criteria are very substantial and involve in any event the protection of the community by application of the principle of special deterrence. Also I bear in mind at all times the limiting principle of totality. In the circumstances I do not invoke the serious offender provisions of Part 2A Sentencing Act 1991 in sentencing you on any of these counts.[2]
[2]See generally R v Connell (1996) 1 V.R. 436 and R v Barnes (2003) VSCA 156 at [21].
Mr McIntosh, you have pleaded guilty to these three counts and you pleaded guilty to them at the committal. Your pleas of guilty are a significant matter to be taken into account in your favour on sentence on each of these three counts. The law correctly regards a plea of guilty as significant in itself.[3] Further, your pleas of guilty have spared the victims the added trauma of the giving of evidence of these terrible events (the committal on 17 June 2003 was by way of hand-up brief). That also is an important consideration. A plea of guilty is more significant however where it betokens remorse. In your case your pleas do not betoken remorse. You have no remorse for your crimes. Your pleas simply betoken the utilitarian fact that the case against you on each of the counts is overwhelming. In the circumstances I consider that I should on account of your pleas of guilty reduce the sentence to be imposed upon you on each of the counts significantly, but not nearly as significantly as I would have had your pleas betokened remorse. In the event I reduce the sentence I would otherwise impose upon you, by reason of your plea of guilty to that count, by the period of two years on each count.
[3]See generally on reduction in sentence on account of plea of guilty R v Duncan (1998) 3 V.R. 208 and Cameron v R (2002) 209 C.L.R. 339 and the authorities there cited.
You have served 571 days in pre-sentence detention on account of these offences. Pursuant to s.18(4) Sentencing Act 1991 I declare that the period of 571 days be reckoned as already served under the sentences I impose and I so certify.
Mr McIntosh, as I said at the outset, these two offences of attempted murder are in the worst category of attempted murder. Your attack upon each of the victims by bashing their heads with a hammer while they were bound and defenceless were terrible attacks, wholly unjustified and wholly inexcusable. Your two victims had done nothing to you except be civil to you. You intended to kill them both. You almost succeeded. You left them for dead and attempted to burn the premises down. Both victims were grievously injured and remain grievously afflicted by your attack. They will always be afflicted by it, physically and emotionally. Of the manifold elements of sentencing, first the element of condemnation applies to your conduct. The court and the community condemn your conduct to these two men. You are to be punished for your violent and callous conduct. General deterrence is important in this case, because it is important that the law seeks to deter others who might inflict grievous violence upon shopkeepers and others exposed to an anonymous public, especially where the victims are vulnerable or in an apparently vulnerable situation. Special deterrence also is important. You had previously committed thefts. Although in vastly different circumstances to this you had previously caused the death of another human being. Reformation always is important, even when as here you have no remorse.
The maximum penalty for attempted murder is 25 years' imprisonment. On Count One, the attempted murder of Mr Oakley, I sentence you to 18 years' imprisonment. On Count Two, the attempted murder of Mr Browning, I also sentence you to 18 years' imprisonment. Although Counts One and Two were committed by you in the course of one extended episode, they were distinct and separate acts done in different parts of the premises and to two different persons both of whom were bound and vulnerable. In the circumstances a substantial amount of cumulation of sentence is called for on those two counts. I direct that 6 years of the sentence on Count Two be served cumulatively upon the sentence on Count One, making a total effective sentence on those two counts of 24 years' imprisonment. On Count Three, armed robbery, I sentence you to 8 years' imprisonment. Because the circumstances of the armed robbery are really subsumed in the circumstances of the two counts of attempted murder, I direct that the whole of the sentence on Count Three be served concurrently with the sentences imposed upon Counts One and Two. In the result I sentence you to a total effective sentence of 24 years' imprisonment. I direct that you serve a minimum term of 20 years' imprisonment before you become eligible for parole.
Remove Mr McIntosh.
Sine die.
D.P.P. v McINTOSH
EXHIBIT LIST
PROSECUTION:
A:Victim impact statements of David Ian Oakley dated 18 August 2003, Ian Reginald Oakley and Mary Agnes Oakley dated 19 August 2003 and Marika Tamer dated 18 August 2003.
B:Victim impact statements of William Geoffrey Browning dated 20 November 2003, Shay McInerney dated 10 July 2003, Amy Browning dated 20 November 2003, Jessica Browning dated 21 August 2003, and psychological report of Ms J. Brewin dated 21 August 2003.
C:Report of Mr P D'Urso, neurologist and dated 25 November 2003 (regarding Mr Oakley).
D: Report of Dr J. Olver, physician, and dated 4 December 2003 (regarding Mr Oakley).
E:Report of Dr B Kavar, neurosurgeon and dated 8 December 2003 (regarding Mr Browning).
DEFENCE:
Report of Mr I. Joblin, psychologist, and dated 18 August 2003.
Report of Dr E. Tuck, psychiatrist, and dated 14 August 2003.
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