DPP v Shiers
[2001] VSC 336
•22 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1490 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL LEIGH SHIERS |
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SENTENCE
JUDGE: | Cummins J | |
WHERE HELD: | Wangaratta | |
DATE OF PLEA: | 20 August 2001 | |
DATE OF SENTENCE: | 22 August 2001 | |
CASE MAY BE CITED AS: | DPP v. Shiers | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 336 | |
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Criminal law - sentencing - murder - arson - killing in home - purpose of arson to avoid detection of murder - child abuse - considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr. A. Moore | Office of Public Prosecutions |
| For the Accused | Mr. D. Wraith | Kerry Clancy & Associates |
HIS HONOUR:
Before imposing sentence, I order, pursuant to s.78(1) Confiscation Act 1997, that the items set forth in the schedule attached to the Order be confiscated in accordance with that Order, and I order, pursuant to s.464ZF(2) Crimes Act 1958, that the accused undergo a forensic procedure, as stated in that Order, for the reasons stated in that Order. Those Orders are published.
S E N T E N C E
At about 1.30 a.m. on Saturday 11 December 1999, a group of young local persons were walking home from an end of year work party which they had attended at the Corowa RSL. They walked, from Corowa, across the Foord Bridge and turned left into Mill Street to go home. They heard argument coming from the premises of the deceased at 3 Mill Street, Wahgunyah. One of the young persons heard the words "What the fuck are you doing?" called out by the deceased, probably because it was the first time he saw the raised knife, held by you, Mr Shiers, and which was shortly to kill him. The young people outside had no idea a murder was about to be committed in that private house, in those otherwise quiet domestic surroundings.
A little later that morning, at about 3.20 a.m., a young rower was riding from Corowa south across the Foord bridge in order later to go down to a rowing function in Melbourne. He smelt some smoke. He was not to know that that smoke was from the fire set by you, Mr Shiers, in order to burn the evidence of the murder you had committed.
You have been found guilty by a jury, Mr Shiers, of the murder, on Saturday 11 December 1999, at Wahgunyah, of Mr Shane Patrick Burdon. You have also been found by the jury to be guilty of the arson of Mr and Mrs Burdon's premises at 3 Mill Street, Wahgunyah. You deliberately set fire to the premises in order to obliterate the evidence of the murder you had committed.
Mr Shiers, you, at the time of the offences, were 24 years 10 months of age, having been born on 10 March 1975. You are now 26 and a half years of age.
The deceased, Mr Shane Burdon, was 40 years of age at the time of his death. He and Mrs Colleen Burdon had married in February 1985, moved together to Mill Street, Wahgunyah, in 1988, and there had a young family. Because of marital difficulties, they separated in May 1998. At the time of his death, Mr Burdon was living in that house alone. Mr and Mrs Burdon had three boys and one girl by the marriage; they are now aged 12, nine, five and two. At the time you murdered their father the eldest child was one week away from his 11th birthday, and the youngest, a daughter, was not yet even one. Her first birthday was on Christmas Day, three weeks later. Mr Burdon had been an active worker and outstanding local sportsman but in 1997 was medically diagnosed with cardiomyopathy, a deleterious heart condition which significantly limited his capacity for sustained physical effort. At the time of his death he was in receipt of a disability pension. Mr Burdon was an acquaintance of yours.
On that Friday, Mr Shiers, you had been drinking alcohol as was your custom. You were residing at the Potter farm in Cornishtown Road, east of Rutherglen where you had been residing for a month and where you were working, assisting in the training of trotters. On that evening you had had an argument with one of the members of the Potter family, Sean Potter, had attended to the birth of a foal in the early hours, and then had sat ruminating on a couch in a stable at the premises and drinking. You were ruminating over your perceived wrongs and injustices: that the deceased a week earlier had called you "a little dog", that the deceased a week earlier had criticised you for incidents relating to taking his eldest son to the pool at Albury the preceding summer, and had falsely accused you of having a relationship with his wife which was not the fact at any time. Your resentment of the deceased was disinhibited by alcohol and intensified by third hand reports from your female partner, Ms Niehus, that the deceased had assaulted his wife and which had frightened and affected their children - reports which stirred your own sensitivity to child abuse (which I shall come to). As a most experienced psychologist, Mr I.A. Joblin, called on your behalf on the plea, otherwise said, you were "a cauldron boiling" (T.660). But you did not go to Mill Street in those dark hours to reason or remonstrate with the deceased. You took a knife to punish him for the constellation of your resentments and anger. You decided to go around at 1.30 in the morning to kill or at least cause really grievous injury to the deceased in his own home.
For that purpose you took a knife from the Potter premises, Exhibit D before me, and in order to cover up your involvement in the intended crime you took a pair of Campbell gloves, Exhibit F before me, from the Potter farm. You then drove to the deceased's premises and parked off the premises. You went round to the back of the premises and entered the premises. It is likely that the deceased heard you or disturbed you and an argument occurred in the deceased's bedroom where he had been asleep. He had been asleep in the room surrounded by Christmas presents he had bought for his children, who are now without a father.
You attacked him. Probably when he realised you had a knife he uttered the words which I have cited, but, in any event, you attacked a man who himself had no weapon of any sort on him. He was unclothed in his bedroom. You stabbed him 42 times and killed him.
The autopsy, conducted by a distinguished pathologist, Professor S.M. Cordner, in Melbourne that Saturday night, showed that you had inflicted 42 stab wounds on the deceased: one almost right through his neck, one which was so forceful it split a rib, one which penetrated his right lung. In all, 27 to the chest, five or six to the face, and seven or eight to the back. You also fractured his face twice. You also caused a subdural haemorrhage over his brain.
You sustained one small scratch on your nose.
Probably a number of the wounds you inflicted were when deceased in fact had already died; the ones to the back, Professor Cordner considered, were likely to be so. But it was a vicious and sustained knife attack by you on a defenceless man in the quietude of his home.
After you have killed him you went through other parts of the house as the trail of blood demonstrates, including going into the back laundry and moving cannabis plants that were there in that laundry. You went up to a local phone box on the corner of Foord and Barkly Streets, Wahgunyah, and probably then you returned to the premises having decided to burn the body and the premises to cover your crime. Whether or not you lit the premises before you went to the phone box or whether, as is more likely, you returned from the phone box and lit them, either way the crime of arson was a deliberate crime by you. You lit the premises with the multitude of material which was there available, including paper and other household belongings right where the body of the deceased was lying, face down dead in his own bedroom. Your purpose in committing the arson was to obliterate the evidence of the murder you had committed. You almost succeeded. Fortunately the timely intervention by two local young men and by the Wahgunyah and Rutherglen units of the C.F.A., and the skill of a distinguished pathologist, prevented your aim being fulfilled. Even so, the hands and feet of the deceased were completely burnt away and his body severely charred.
Having left the premises you commenced a series of falsities about what you had done on that night. When asked the next day how you had the scratch on your nose you said it was when you walked in the dark into a tree. On the Sunday when asked by your female partner, Ms Niehus, where you were on the Friday night you lied to her. And when the police interviewed you on the Thursday, 16 December, you lied again to them - at that time propounding to them a false story that you were defending yourself: you, with the one scratch to your nose, and the deceased with his 42 stab wounds and two facial fractures. In truth you had taken the knife to the premises to kill him or do grievous injury to him and you had taken the gloves to the premises to cover up your involvement.
The week before the offences, on Saturday, 4 December 1999, you had returned to Mrs Burdon's home in Corowa with the second eldest child, Jake, and there had an argument on the phone with Mr Burdon. He called you a little dog. You said to him: "No, how about I go there?" This was 5.30 p.m. on the previous Saturday. But you did not go there for another seven days, and when you went there, you went there at 1.30 a.m. under cover of night and in stealth with a knife and with gloves.
When interviewed by the police on 16 December 1999 you gave a false story of self-defence. The jury found beyond reasonable doubt you were not acting in self-defence. The false story prepared by you included you attributing this statement to yourself: that you said to the deceased (Question 230) - "I've come over here to just try to help you"; and at Question 489 - "I had no intention of going there to kill this man. I wanted to just go there to have a civil conversation with this man". According to you, because the deceased's violent conduct, which you had never seen but was reported to you third-hand by Ms Niehus, was frightening the children: the children whose father you have taken from them.
Although you had a false story ready for the police, the objective evidence which you were not aware of found you out. The investigating officer, Detective Senior Sergeant Hubbard, in intelligent questioning of you, asked you (Question 255): "Are you able to tell me how many times that you stabbed the deceased?" and you replied, "I'd say five, maybe. Six, tops." Your deliberate demeanour, when you said that answer, is evident on the video, Exhibit O. You did not know, when you gave that answer, that the arson you had committed in order to burn the body beyond recognition, was not fully effective, and that Professor Cordner, in Melbourne, had found 42 stab wounds: not five, maybe; or six, tops.
You were affected by alcohol that night. Alcohol often has a disinhibiting effect upon aggression, as it had with you. And alcohol often has a disinhibiting effect on perceived wrongs and injustices, as it had with you.
Your persistent false accounts do not add in any way to the sentence to be imposed upon you, but they limit the extent of remorse which can properly be taken into account in your favour. You have no significant remorse for your crimes. In a revealing incident, on Tuesday 14 December, three days after the crimes, Mr Wayne Potter, the son who was not living at the Potter farm and who was your employer with trotters, said he came up to his house in the afternoon, the police having been down at the Potter farm in the stables and having found a knife that they thought might have been a knife which showed you were clear of the crime. Mr Potter said this (T.296): "I went up to my house, to the front room, and he" – you – "was standing there, and when he saw me, he broke down and cried, and I asked him what was wrong, and he told me that he had been framed or set up for this murder. And I told him that the police had found a knife down at the stables and that he was off the hook. And he was all right then .... he was OK with that."
I have had regard to the victim impact statements which have been tendered in this case, the psychological report of Mr Jago of Hume Psychology, of 17 August 2000, and the victim impact statements of the mother of the deceased, Mrs Elizabeth Burdon, a brave woman who has been in court throughout these lengthy proceedings, and of the sister and brother of the deceased, of 20 August 2001; of the wife of the deceased, Mrs Colleen Burdon, who has been present throughout, of 19 August 2001; and of two of the children, Sam and Jake.
I quote only one part of those victim impact statements. Young Sam, on the cusp of his youth, with his father taken from him, said this: "I miss my Dad very much, and especially at night, because I'm scared someone will hurt my family.....I miss talking to my Dad, and the only way now that I can talk to him is when I go to his grave ...." Your actions have denied them their father's love and guidance, for, although separated, he was a very devoted father.
There are, Mr Shiers, a number of factors in your favour which I take into account and which reduce the penalty otherwise I would impose upon you. First, your relative youth. You were then 24 years 10 months of age, and you are now 26 and a half years of age. It is important, with relatively young offenders, that a sentence does not crush them and does not extinguish the prospect of rehabilitation.
Second, you have shown, since you were placed in custody, on 16 December 1999, a period now of some 20 months, that you have in custody acted very productively and responsibly. You are to be commended for that. That shows distinct and good prospects for rehabilitation. I take into account the evidence of Ms Hooker, the youth development officer at Port Phillip Prison who gave significant evidence of your excellent conduct in prison as a peer educator and your rehabilitative potential.
Further, I take into account the numerous certificates, Exhibit 3, tendered on your behalf: thirteen certificates from Port Phillip Prison, in anger management and related areas, six certificates from Moreland Hall, in learning and drug abuse programs, and the other certificates, including three self-improvement certificates from Kangan-Batman TAFE, in basic welding and cleaning operations.
Those matters stand distinctly to your credit, Mr Shiers. They show effort over a period of time in custody, and are the harbinger of good prospects for rehabilitation, and I take that matter significantly into account in your favour.
Next, you have been in pre-sentence detention for 617 days - a long time. You were charged on 16 December 1999. There was one trial held from 26 September to 13 October 2000 in which the jury was discharged without verdict, a second brief trial from 17th to 19 July this year which resulted in the jury being discharged through no fault of yours or, indeed, of anyone else's, and a third trial, the one in which you have been found guilty by the jury of murder and of arson. The uncertainty that you have had the burden of enduring over that period and through those trials I take into account.
Next, you have no substantial history of violence. You have 15 prior convictions from 11 February 1992 to 15 September 1998 which are largely driving and related offences, the convictions being recorded in the Local Corowa and Albury Courts. They show a general disregard for safe driving laws as, indeed, your continuous driving as evidenced by the witnesses in this case showed, but that does not affect in any way the sentence in this case. None of the convictions involved a sentence of imprisonment. Two sets of convictions in the Corowa Local Court in February 1994 and the Albury Local Court in 1997 were for limited violence, but were not premeditated, as your counsel has clearly explained, and which I accept. They do show, however, a continuing problem with alcohol relevant to this case.
You have also had the benefit of a report of a most experienced psychologist, Mr I.A. Joblin of 21 September 2000 and of his evidence before me. To some extent the utility of Mr Joblin's report is contained because he based his opinion in part upon the instructions that you had given him that you went to Mr Burdon's home with no aggressive or violent disposition. However, that does not negate the substance of his report and evidence, which is that you had and have, by reason of your most unfortunate childhood in which your father abused your mother, "a considerable sensitivity to appropriate fatherhood" and "an extraordinary sensitivity to abuse" (Report page 5). However, Mrs Colleen Burdon, when she was the subject of some physical violence by her husband took the right path. She took the pathway of the law. She went to the Corowa Local Court in March 1999 and in April 1999 an Apprehended Violence Order was imposed upon the deceased. He observed that Order and she had no further problems of violence with him. You, unlike Mrs Burdon, took the other path. You took the path of crime, not of the law.
I take into account the evidence given by your mother and your sister, both decent and good people. They gave direct evidence of the difficulties of your childhood.
I also take into account the evidence of the other witnesses called on your behalf, Mr Norman and Mr Campbell.
I take the matters I have stated into account in your favour.
However, there are several significantly exacerbating factors in this case.
On the conviction for murder, the murder was in the home of the deceased - a place which should be a place of safety, and in the early hours when he had been sleeping in his own bedroom. Second, you went there armed with a knife, and with gloves to prevent detention. Third, you viciously attacked the deceased who had no weapon and it was a prolonged and vicious attack. Fourth, you have left his family afflicted and bereft: four young children without their father and with the haunting knowledge that he had been murdered in the dead of night in his own bedroom and his body then burnt.
On the conviction for arson, there are a number of significantly exacerbating factors as well. First, the purpose of the arson was to conceal the crime of murder, that is, to defeat the ends of justice, and you actively sought to use it for that purpose four days later when you answered as I have cited in Question 255, in the interview by the Homicide officers on Thursday, 16 December. Next, you lit the fire at the very body of the deceased. Next, it was a very deliberate action on your part whether, as is probable, you returned from the phone box, or even if you did not. The autopsy conducted by Professor Cordner revealed that the deceased was dead when the fire started, as there was no smoke or soot in his lungs and airways and no carbon monoxide in his blood. Next, the terrible consequences to the body of the deceased will always live with his wife, his mother, and his children. There was also significant financial harm caused to his wife and family. On the other hand, no person was living in the house when you lit the fire. The risk to other persons and other property was not that great, but the consequences of arson, as we all know, are unpredictable and, indeed, the brave actions of two young men, Mr Hetherington and Mr Maclean, who put themselves at risk, and the brave actions of the volunteer fire fighters from Wahgunyah and from Rutherglen, demonstrate the dangers of arson.
Of sentencing principles applicable especially in your case, Mr Shiers, first there is the principle of punishment. You are to be punished for your conduct of committing murder and arson. Also relevant is the principle of general deterrence. It is necessary that other persons are deterred from resorting to violence to resolve their emotional problems, real or perceived. On the other hand, significant - especially in your case - is rehabilitation, as I have stated, and that has moderated the sentence I otherwise would impose upon you.
Pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that you have served 617 days in pre-sentence detention on these counts and I so certify. That means that that period is treated as already served by you, Mr Shiers, under the sentence I now impose upon you.
On Count 1, the murder of Shane Burdon, I sentence you to 17 years' imprisonment.
On Count 2, the arson of the premises at 3 Mill Street, Wahgunyah, I sentence you to five years' imprisonment.
I direct that two of the five years' imprisonment on Count 2 are cumulative upon the sentence on Count 1, making a total effective sentence of 19 years' imprisonment.
I direct that you serve 15 years' imprisonment before you are eligible for parole. That is a longer term of parole than normally I would order, because of your prospects of rehabilitation.
Mr Shiers may be removed.
Sine die.
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