DPP v Stein (Sentence)
[2006] VSC 345
•22 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1454 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER GODFREY STEIN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-12, 15-16, 19, 22-25, 29-31 May, 1-2, 5 June, 18 September 2006 | |
DATE OF SENTENCE: | 22 September 2006 | |
CASE MAY BE CITED AS: | DPP v Stein | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 345 | |
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Criminal Law – Sentencing – Manslaughter – Consensual restraining of deceased in a bondage session – Gag added and not removed at signs of distress – Sentence of imprisonment of 7 years – Non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Pullen S.C. (Trial) And Mr B. Kayser (Plea) | Office of Public Prosecutions |
| For the Accused | Mr W. Stuart (Trial) And Mr G. Mullaly (Plea) | Victoria Legal Aid |
HIS HONOUR:
Peter Stein. You have been found guilty by a jury of the crime of manslaughter. That same jury found you not guilty of the crime of murder. On 7 June 2003, you killed David Macdouall. He was a man whom you scarcely knew at that time. He was a man who chose to pay money for sex. Among those he paid for sex was Catherine Doolan. She was in a relationship with you for many years before June 2003. Both of you had an addiction to heroin. She earned money by her sex-working activities, including at the home where you and she were then residing. In June 2003, that house was in Queen Street, Ormond. You acted as her pimp. While she serviced her clients, including David Macdouall, you were usually nearby.
At the Queen Street house, she serviced clients in the front bedroom. The furniture in the room was sparse, and the bed was basic. The usual service was massage, oral and sex. On occasions, clients sought a bondage routine, usually with the client as the dominator, and Catherine Doolan as the submissive. That routine involved the use of restraints and possibly a gag on the submissive. Catherine Doolan met David Macdouall, in the late 1990’s. He became a regular client. She serviced him about once a month, usually on a Friday night. He had one of her mobile phone numbers. He always called her. He liked to talk and drink before the sex. Sometimes, he wanted to watch videos first. He liked to get dressed in some of her clothes. At times, she had used restraints on him, limited to tying his wrists together. On occasions, a gag was used. He had suggested to her more than once that he was interested in a bondage threesome.
On Friday, 6 June 2003, David Macdouall rang Catherine Doolan. They talked about him buying some sex videotapes. They arranged that he would come over to Queen Street and look at the videos. He brought with him some wine and cans of bourbon and coke. You and he had met previously, albeit briefly. On the night of 6 June, you, he and Catherine Doolan sat around, talking and drinking and watching videos. David Macdouall agreed to buy two videos. He talked of his sexual interests in a way that indicated that they were wide. He spoke in a way that indicated his familiarity with bondage.
Catherine Doolan and David Macdouall eventually moved into the front bedroom. There, she spoke to him of the possibility of a bondage threesome. He told her to go ahead. She asked for a fee of, and he agreed to pay her, $400. She left the bedroom. She told you that David Macdouall was agreeable to a threesome. She told you that she and he would be submissives. She returned to the front bedroom. He snorted some amyl nitrate, a sexual stimulant. That was his usual practice, at around the start of a sex session. He wanted her to dress him up, as she had often done before. She dressed him in pantihose which had a hole in the groin from which his genitals protruded. She put on him, over the pantihose, one of her skirts, and one of her tops. She put on him a pair of her high heeled shoes. She applied to his lips some of her bright red lipstick. She then tied him up. She used leather restraints and rope that she had on hand. She tied rope to his two wrists and two ankles and to the four legs of the bed. He was then lying spreadeagled on the bed. When she had finished preparing him in that way, she called you in.
You came into the bedroom. You left to get two handkerchiefs. You went to David Macdouall, with the handkerchiefs that were knotted together at the ends to act as a gag. You tied the gag around his head and mouth. Shortly after the tying was completed, he reacted in a way that indicated that he was in some distress. He started to breathe hard and fast. His eyes fluttered. His distressed reaction led to Catherine Doolan telling you to take care. You mumbled something apparently in reply. Troubled, she left the bedroom. You chose to stay. You did not leave for many hours. You did not call in the police. You did remove the rope and restraints from David Macdouall. You chose not to remove the clothes. You left the body in the bedroom for some days. You chose then to move the body into the station wagon of David Macdouall. You acquired petrol and briquettes. You propped up the body of the deceased in the passenger seat of his own station wagon. You drove the station wagon to a relatively remote location off a gravel road in South Gippsland near Tarwin Lower. You chose to leave on or near the body various items including the note on which you had penned in capitals the word: “KIDS”. You placed the body on cardboard, added briquettes and petrol and set the body alight.
Only you would know why you took each of the various steps that I have described. The manner of retaining and disposing of the body was carried out in a manner likely to at least delay investigations and conceal evidence. In both of those respects it succeeded. Your making the considered choices to treat the body as you did must be seen as a factor aggravating the seriousness of the killing.
The foundation of the crime of manslaughter of which you have been found guilty, whether unlawful and dangerous act manslaughter, or manslaughter by criminal negligence, could be seen to as readily be the same combination of acts and omissions. With the deceased and Catherine Doolan, you were a party to the creation of a potentially dangerous situation. The deceased was consensually restrained. Once you acted to put the gag on the deceased, you took over the control of the situation. Because the deceased was restrained, he had lost the power of self-help. He was in your hands. The situation was one of potential danger. You materially added to the danger first by putting the gag on the deceased, and then by not reacting promptly to the distress reaction of the deceased, which so obviously distressed Catherine Doolan.
There were several victim impact statements tendered on the hearing of the plea. By far the most significant of those statements was that which was prepared by the mother of the deceased, whose plight was the subject of amplification by others. David Macdouall was her only son. For decades, he had been the central focus of her life. He had cared for her in ways that would make most mothers very envious. The tragic death of her son has had all manner of adverse consequences for her.
I turn from her to you. You were born in Germany in 1950. You have three siblings. Your childhood was unexceptional. The emphasis within the family on education led to your taking out a degree in the communications technology field, and then working in research and development. You chose to take off time to travel and that led you to Australia. You have remained here since arriving in 1980. For reasons not made clear to me, you do not have a good work record here. You have been in a relationship with Catherine Doolan for about twenty years. It appears to have been a co-dependent relationship with its good aspects as well as its bad. The problems with heroin appear to have been long-standing but not such as to lead to your having really serious problems in the courts. From several court appearances between 1985 and 1995, you have finished up mainly with fines. You were released on Community Based Orders twice. The first was in 1992 for living on the earnings of prostitution, and the second in 1995 for using and trafficking in heroin.
I cannot say that you have shown no remorse. I can say that the indications of such remorse are minimal. I cannot assess the prospects of your rehabilitation as being either clearly bad or clearly good. Your past qualifications, your recent motivation to further your studies, the apparent rehabilitation of Catherine Doolan and her continued support for you are factors going one way. The absence of a good work record and the court appearances are indicators to the contrary.
I declare as pre-sentence detention 736 days to today. I direct that that be entered in the court records. I have signed the orders sought as to retention of the body sample and the destruction of certain items of evidence. I have done so despite submissions to the contrary, linked to the probability of your eventual deportation, which I did not find compelling. I fix a sentence of imprisonment for seven years for the crime of manslaughter. I fix a non-parole period of four years.
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