R v Alford
[2005] VSC 419
•21 October 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1406 of 2004
| THE QUEEN |
| v |
| JAMES GORDON ALFORD |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10, 12 and 13 October 2005 | |
DATE OF SENTENCE: | 21 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 419 | |
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Criminal law – sentence – attempted murder – guilty plea - accused suffering from delusional disorder at time of offence – moral culpability and deterrence moderated due to mental condition – serious and continuing risk of violence towards victim – longer than usual parole period justified – sentenced to 9 years’ imprisonment with a non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Trapnell | Solicitor for Public Prosecutions |
| For the Accused | Mr G Mullaly | Victoria Legal Aid |
HER HONOUR:
James Gordon Alford, you have been convicted, after pleading guilty to the attempted murder of Jennifer Anne Tate. It is now my duty to sentence you.
The offence occurred in the afternoon of 26 August 2003. However, the events of that day need to be considered in the context of earlier events.
Jennifer Tate married Evan Tate in November 1998. They had a son together, who is now aged seven. Sometime around 1999 you met Mrs Tate through her sister, Debbie. You and Mrs Tate had a short relationship for about 2-3 months, after which she returned to live with her husband.
Mrs Tate’s relationship with her husband had its ups and downs. During another period of separation from her husband, she was living with and fell pregnant to you. Mrs Tate did not discover she was pregnant until she was back together with her husband; he was named as the father on the birth certificate for the child, Mark, who was born in April 2002.
You became aware of Mark’s existence and in late 2002 requested that a DNA test be done to determine who Mark’s father was. Eventually, the test was done, and it showed that you are in fact Mark’s father.
You wanted access to Mark. Eventually, you obtained a court order granting you visitation rights. The implementation of the visitation arrangements did not go smoothly and you became increasingly frustrated at the delays in receiving access to Mark.
At some stage you became concerned that Evan Tate was harming or threatening to harm your son. You alleged that he had threatened to hang Mark. You also became concerned that Mark was in contact with somebody who was a paedophile.
You left a letter at households in the vicinity of the Tates’ home which mentioned that your son lived near them and asked neighbours to contact human services or the police if they heard any family violence in the area.
In early April 2003, you were on the phone with Evan Tate, when you heard Mark screaming in the background. You became convinced that this was not normal crying and that Mark was being deliberately tortured and made to scream.
During April and May 2003, you contacted the police, the Department of Human Services and the Ballarat Child and Family Services Child Contact Service, expressing various concerns about Mark’s safety and your frustration at the delays in obtaining access to Mark. On a number of such occasions, you threatened to harm or kill one or both of Jennifer and Evan Tate. You also made threatening telephone calls directly to the Tates.
You sent Mrs Tate a threatening letter at the end of April 2003, in which you said that you would kill her and her husband if she didn’t complete and return certain forms to Child and Family Services in Ballarat. I accept that Mrs Tate had not in fact returned the necessary forms promptly, to enable access to proceed.
It seems that your letter may not have reached Mrs Tate immediately, as she allowed you a short contact visit with Mark some time in early May 2003. This visit appears to have proceeded without incident.
Mrs Tate was understandably distressed when she eventually received your threatening letter. She went to the Magistrates’ Court in mid May 2003 and obtained an interim intervention order against you. At the final hearing a few weeks later, both you and Mrs Tate were present; the magistrate made an order which prevented you from approaching, telephoning or contacting Mrs Tate for 12 months commencing on 6 June 2003. You had no further contact with Mrs Tate until the day you attacked her.
You became increasingly frustrated at what you perceived to be an inability or unwillingness on the part of the relevant authorities to protect Mark. During August 2003, you informed child protection officers that if nobody else was going to ensure your son’s safety, you would take matters into your own hands.
Some time in mid to late August, you prepared and distributed in the Geelong area thousands of copies of a single-page document headed “Save Baby Mark.” In that pamphlet you alleged that your son Mark had been tortured over the phone. You explained why you believed that Mark was at risk if left with the Tates. You also said “I’ve become homicidal towards the people responsible for my son’s mistreatment; for fear that these people may further torture, maim or murder my child. I consider that I may have to spend a lengthy jail sentence in prison if I am forced to intervene to save my son.”
At 9.48am in the morning of the 26th of August 2003, you left a message on an answering machine at the radio station 3AW in Melbourne, which ended with words to the effect that if 3AW couldn’t help you then they would “do a story on the murders I’m about to commit because I’m fucked off with this bullshit. I just need someone to help me here.”
That same morning, Mrs Tate saw you walking slowly past her mother’s house in Princess Road, Corio, apparently looking towards the windows.
Around 3.10pm that afternoon, Mrs Tate was walking with her mother, Beverley, and her two sons, in a northerly direction along Princess Road. She was pushing Mark in a stroller, the older boy was walking next to her.
She saw you at a bus stop near the intersection of Princess and Goldsworthy Roads. She crossed the road to avoid contact with you. As she started to cross the road, you ran across the road screaming at her.
As she reached the other side of the road, you tackled her to the ground. You produced a fishing knife with a black and fluorescent orange handle, which you held in your right hand while holding Mrs Tate down with your left. You sliced her neck and stabbed her to the neck, ear, jaw and chest areas on the left side of her body. While you were doing this, you were yelling at Mrs Tate words to the effect of “Fucking slut, I’m going to fucking kill you. I’m going to stab you till you die.”
Mrs Tate tried to resist and struggled with you, but you were too strong and she was overpowered. You were holding her by the hair as you attacked her. During the attack, the fishing knife bent, and was therefore unable to penetrate Mrs Tate’s body. Despite this, you continued to use it in a stabbing motion on Mrs Tate until you were ultimately restrained by two passing motorists who stopped to help Mrs Tate.
The actions of those two men, Daniel Bridge and Tyrone Pearson, in stopping and restraining an armed attacker, at some risk to themselves, were courageous and highly commendable.
Once free, Mrs Tate picked herself up and walked to a neighbouring house, where she, her mother and children sought refuge. They then walked back to her mother’s house nearby.
You returned to your house in Goldsworthy Road, where you called police and told them you were responsible for the attack on Mrs Tate. The police came to your house and arrested you. You said to the police: “Lock me up. Put me in jail. I’ve just tried to kill my ex-wife. I tried to cut her throat but the knife bent. Here, it’s in the bag. You can have it. There’s also a note in there that will explain the whole thing, if you read it.” The police searched your black backpack and found two knives, including the one used in the attack, and a copy of the “Save Baby Mark” pamphlet.
You were taken to the Corio police station where you participated in an interview, during which you made full admissions. You repeatedly told police that you were trying to kill Mrs Tate and complained that “the bloody knife bent. Damn Chinese bullshit.” You alleged that the Tates had been mistreating both of their sons. You claimed that Mark was tortured and you heard his screams of torture over the phone. You believed that your son Mark’s life was in danger, and that he was at risk of being sexually abused by a paedophile with whom Mr and Mrs Tate associated.
You cooperated with the police and answered their questions, and made it clear that you had intended to murder Mrs Tate, because of the concerns you had about Mark being in the Tates’ care.
Since your arrest, you have been examined by a number of psychiatrists, including Professor Paul Mullen, Dr Douglas Bell, Dr Ruth Vine and Dr Debra Wood.
Drs Bell, Vine and Wood each formed the opinion that at the time of offending, you were suffering from a delusional disorder, such that you did not know that what you were doing was wrong. Other psychiatric evidence suggested that you were only suffering from a personality disorder, rather than a more serious disease of the mind.
The diagnosis of a delusional disorder if often very difficult to make, because it involves the formation of delusional beliefs that are not of themselves inherently implausible, yet are psychologically morbid in origin and lacking in external corroboration. It is not uncommon for a delusional disorder to arise in a setting where there is some, albeit limited, kernel of substantiated truth in the statements made.
Even allowing that there was some kernel of truth in your concerns as to the Tates’ suitability to look after children, there is simply no evidence that Mark was being tortured or which would justify the intensity of your fixation about Mark’s safety.
Since your arrest, you have spent two periods as an involuntary patient at the Thomas Embling Hospital.
Your trial did not proceed until October 2005, due to concerns as to your fitness to stand trial. In particular, there were concerns as to your capacity to give rational instructions to your lawyers, given the continued existence of your delusions.
Following the receipt of unanimous expert reports as to your current mental state, I formed the view that there was no longer any concern as to your fitness to stand trial.
You did not wish to advance a defence of mental impairment. However, at the start of your trial on 10 October 2005, I granted the Crown leave to raise the issue of mental impairment. I did so because the bulk of the expert evidence supported such a defence.
Whether your mental state in August 2003 was in fact such as to constitute “mental impairment” within the meaning of s.20(1) of the Crimes (Mental Impairment and Unfitness to Plead) Act 1997 is not a matter that I need to determine. In pleading guilty, you have accepted legal responsibility for the offence.
Nevertheless, serious psychiatric illness not amounting to mental impairment may be relevant to sentencing in the following ways:
(1) It may reduce the moral culpability of the offence, as distinct from the legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances. Denunciation of the type of conduct in which you behaved is less likely to be a sentencing objective.
(2) It may have a bearing on the kind of sentence that is imposed and the conditions in which it is served.
(3) It may reduce or eliminate general deterrence as an appropriate purpose of punishment, whether or not the illness played a part in the commission of the offences.
(4) It may make specific deterrence more difficult to achieve and often not worth pursuing as such.
(5) It may mean that a given sentence will weigh more heavily on you than it would on a person in normal health.
I agree with your counsel that the second and fifth of those matters are not particularly relevant here.
Of course, mental illness is not only a mitigatory factor. It may mean that an offender is also a greater danger to the community.
I accept for the purposes of sentencing that you were suffering from a serious psychiatric illness at the time of the offence, namely a delusional disorder.
The offence of attempted murder is a very serious one which carries a maximum penalty of 25 years’ imprisonment.
Objectively speaking, this offence is towards the higher end of the scale of attempted murders. Your attack was premeditated. You deliberately and repeatedly stabbed your victim with a dangerous weapon, after approaching her for that very purpose. Although the sides of the blade were rather blunt, it would have taken considerable force to bend the strong metal. You sliced and stabbed her in the neck and chest area, close to a number of major blood vessels and vital structures. The only things which stopped you from carrying out your murderous intent were that the weapon let you down by bending in the course of the attack, and passers by intervened to protect Mrs Tate.
You did so in knowing breach of an intervention order, 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. Ordinarily, it is said that not only must courts endeavour to deter persons from seeking to resolve domestic conflict by means of violence, but they must also make it abundantly clear that the use of weapons and the resort to violence and flagrant breach of intervention orders will be met by severe punishment.
However, I accept that your mental condition at the time of offending was such as to reduce somewhat the moral culpability of your actions.
Although you may have believed that your actions were necessary to protect your son, in circumstances where you believed the relevant authorities were not taking appropriate steps, people must be discouraged from taking the law into their own hands. Normally, general deterrence would play a significant part in sentencing a person who, like you, has taken the law into their own hands. However, that important consideration is moderated, but not eliminated, in your case because of your mental condition at the time of the offences.
The position is more problematic in relation to specific deterrence. But for your delusional beliefs, I accept that the offending would not have occurred.
However, the need for deterrence is not eliminated altogether, because you still had sufficient mental functioning to permit you to plan the attack, carry it through, and then tell police that you knew you would probably go to gaol for many years for what you had done.
What is clear is that for so long as you continue to hold your delusional beliefs, you will present a serious danger to Mrs Tate and possibly also Mr Tate. It is common ground that Mr and Mrs Tate have now separated; given that your primary concern was that Evan Tate was the person responsible for harming your son, that may lead to some future softening of your desire to harm the Tates. The passage of time and suitable counselling may also help weaken the intensity with which you hold your beliefs.
You pleaded guilty to the charge of attempted murder at the start of the second full day of the trial. At that stage, the first witness, Mrs Tate, had completed her evidence in chief. In pleading when you did, you spared Mrs Tate from the ordeal of cross-examination and other witnesses and family members from the stresses of a trial. The community has by your plea been spared the time and cost of a trial. I accept that until the issue of your fitness to stand trial was resolved by me on 10 October 2005, pleading guilty at an earlier stage was not a realistic option. Accordingly, you are entitled to a discount on the sentence to be imposed upon you, in recognition of having pleaded guilty at close to the earliest possible time.
Perhaps not surprisingly, given your delusional state, you have expressed no remorse for your actions. On the contrary, you have expressed regret that you were frustrated from carrying out your intentions by an inferior quality knife. You did make full and frank admissions to police and sought to justify your conduct by reference to your fears as to your son’s safety.
Fortunately, Mrs Tate has suffered no permanent physical injury as a result of the attack. However, she suffers from nightmares and flashbacks and continues to fear for the safety of herself and her children. Mrs Tate’s mother, who was present during the attack, has also suffered serious emotional trauma as a result of your actions.
You were 33 years old at the time of the offence, with no prior convictions.
You appear to have had a difficult childhood. Your parents separated when you were two and you spent the next two years in a babies home, separated from your older sisters who went to an orphanage. You went to live with your father when you were four or five and stayed with him until you were about 15, at which time you went and lived with your mother. Your father was a firm disciplinarian and ran the household very strictly. Your mother suffered from schizophrenia and spent time in hospital throughout your early childhood. It seems that you and your siblings were not adequately protected by your father from sexual abuse by his friends during your childhood.
After completing schooling in year 11, you worked at a variety of seasonal and labouring jobs. You were regularly looking after your mother as her illness ebbed and flowed; this became even more significant in the last months of her life, when she was dying of cancer. She died six weeks before this offence, which must have been an added stress at that time.
You are an intelligent man, who shows no obvious disorder of thinking, perception or emotion other than the intensely held convictions you have about the abuse of your son. You have no history of serious mental illness prior to 2003.
Professor Mullen noted that because “fixations” such as yours are fed by social isolation, being in prison has enabled you to be less occupied by one issue, and you have engaged well with prison staff and fellow inmates. The evidence is that you are coping well in prison, far better than you coped in the Thomas Embling Hospital. Apart from increased social interaction, you have also had an opportunity to use your artistic skills in the prison environment.
You have the support of your sister, Therese, here in Geelong; such support is important, as it means you will have some assistance in fitting back into the community when you are eventually released from custody.
Because medication has not assisted your condition, the experts say that it will be a matter of time and support before your condition may start to improve. You have displayed strong anger and resistance to psychiatric treatment. The medical evidence suggests that the most likely way in which you may be able to resettle, reform and rehabilitate is with the assistance of the Adult Parole Board. The precise form of support, supervision and monitoring that may be required is up to the Parole Board to determine, but is likely to at least involve some psychological counselling or other mental health treatment. Both you and the community would benefit from your being supervised on your release.
Accordingly, I agree with the submissions of the Crown and your counsel that it would be appropriate to impose a longer than usual period of parole. That is to be achieved not by setting a disproportionate head sentence, but by setting a shorter minimum term than might otherwise be expected.
Whether or not the Parole Board will in fact grant parole once you become eligible for it will depend on your mental state at that time, and their assessment as to the extent to which you still represent a risk of harming anybody.
Having regard to all of these matters and the need to impose a sentence which is just and proportionate, I have concluded that you should be sentenced to a period of imprisonment of nine years. I fix a period of five years as the period you must serve before becoming eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 788 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.
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