R v Bayley
[2013] VSC 313
•19 June 2013
| NOT RESTRICTED | |
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0032
| THE QUEEN |
| v |
| ADRIAN ERNEST BAYLEY |
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JUDGE: | NETTLE JA |
WHERE HELD: | Melbourne |
DATE OF PLEA AND CONVICTION: | 5 April 2013 |
DATE OF PLEA HEARING: | 11 June 2013 |
DATE OF SENTENCE: | 19 June 2013 |
CASE MAY BE CITED AS: | R v Bayley |
MEDIUM NEUTRAL CITATION: | [2013] VSC 313 |
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CRIMINAL LAW – Sentencing – Rape – Murder – Offences committed while prisoner released on parole and on bail – Post offence aggravating conduct – Transported deceased to rural area and buried body – Weight to be given to subsequent plea of guilty following protracted denial of involvement – Recidivist violent sexual offender – Psychological assessment of borderline personality disorder – Verdins principles not enlivened – Prospects of rehabilitation guarded – Remorse problematic in light of past offending – Parole – Effect of need to consider age of prisoner – Total effective sentence of life imprisonment with non-parole period of 35 years – Veen (No 2) v R (1987) 164 CLR 465; R v Lowe (1997) 2 VR 465; R v Zhang [2009] VSCA 236; R v Lecornu [2012] VSCA 137; R v Basso & Frazzetto (1999) 108 A Crim R 392; Phillips v R [2012] VSCA 140; R v Alashkar & Taylor (2007) 17 VR 65; R v Bazely (1993) 65 A Crim R 154; R v Romero [2011] VSCA 45; R v Quarry (2005) 11 VR 337, applied; Gill v R [2010] VSCA 67; Tutchell v R (2006) 168 A Crim R 25, referred to – Sentencing Act 1991 ss 6B(2), 6D(a)(b), 6E, 16(3B)(3C), 11(1), 6E, 6F, 14, 18, 6AAA; Sex Offenders Registration Act 2004 ss 34(1)(c), (4)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnett and Ms D Mandie | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr S Holt SC with Mr P Smallwood | Victoria Legal Aid |
HIS HONOUR:
Adrian Ernest Bayley, you have pleaded guilty to the rape and murder of Gillian Edie Meagher at Brunswick on 22 September 2012 and you have been convicted of those offences.
The facts
Gillian Meagher was a young married woman of 29 years of age who was employed by the Australian Broadcasting Corporation. On the evening of Friday 21 September 2012, she and other employees of the Corporation attended a birthday party for one of their co-employees at Fad Gallery in the City. Ms Meagher left the party at about 9.00 pm in company with three of her co-employees and they travelled by taxi to the Brunswick Green Hotel in Sydney Road, Brunswick. When the bar there closed at about 1.00 am the next morning, Ms Meagher and one of her co-employees walked up Sydney Road to Bar Etiquette for a last drink for the evening. At about 1.30 am, the co-employee offered to walk Ms Meagher home but she declined, saying that she lived only five minutes’ walk away, and she set off for home north along the west side of Sydney Road. Moments later, you sighted her.
According to a version of events which you gave to Professor James Ogloff, consultant psychologist, on 17 May 2013, earlier in the evening of 21 September 2012 you had been drinking with your partner at a pub and later in a night club in the city. CCTV footage confirms that. After an argument at the night club, your partner left and, when you realised she had gone, you caught a taxi home to Coburg. When you could not find her at home, you decided to get a taxi to Newmarket to collect your car. You claimed that you had so much to drink that the taxi driver feared you would vomit in the taxi and so he turned you out somewhere along Sydney Road. It was then that you came into contact with the deceased.
You told Professor Ogloff that, after the taxi had put you down, you decided to jog home to Coburg along Sydney Road. That seems unlikely if you were as affected by
drink as the taxi driver thought you to be but, in any event, you finished up on the western side of Sydney Road walking north behind the deceased.
As the deceased got to the point where you first came into contact with her, she spoke by mobile telephone to her brother in Western Australia about her father’s state of health. The telephone connection was poor and she hung up in the expectation that her brother would call her back. Telephone records show that it was then 1.35 am, at which point she was only about 550 metres from home. Moments later, you walked past her and, according to what you told the police on 27 September 2012, she appeared to be upset about her father’s state of health. As can be gleaned from CCTV footage obtained from shops along Sydney Road, that was at 1.38 am outside the Duchess Boutique at 517 Sydney Road, Brunswick.
When interviewed by police on 27 September 2012, you said that, because the deceased appeared upset, you offered to help her but that she flipped you off and that made you angry. In your own words:
You know it wasn’t really my intention to hurt her, you know that? When we conversed, I swear to you man, I swear to you I’d – I’d – I’d – I just – I spoke to her and she looked – she looked distraught. Does that make sense?
…
And I spoke to – I spoke to her, you know and said, look I’ll just – I’ll – Ill help you, you know. That’s what I said to her and she was like, fu.. anyway. It doesn’t matter. She flipped me off and that made me angry, because I was actually trying to do a nice thing. You know that?
…
When – oh, man, I just – I just – she looked distraught, you know. She looked like she was lost. She didn’t – and I don’t know man, you know. Always try to do the right thing some – you know, most of the time and I didn’t take well to her response, you know.
I just don’t wanna go through it in detail …
…
POLICEMAN: So you said she fobbed you off and you got angry. Tell me what happened then?
Oh, I just got pissed off and I actually walked off and she followed. I actually walked in front of her and she followed.
…
And it just got worse.
POLICEMAN: Tell me what happened.
…
So, fuck man. I’ll – I’ll – I’ll – I don’t wanna go through it in detail, but I’ll – I don’t even know if I can remember where I put her. Every day man, even before this, you know, was focused on me, I – I – I can’t believe that I’ve done what I’ve done, do you understand that?
You gave a partially different version of events to Professor Ogloff on 17 May 2013. You told him that, after you had walked off, the deceased called you back to where she was at the corner of Sydney Road and Hope Street and that you walked together along Hope Street towards her home until you got to the laneway first off Hope Street after turning left from Sydney Road.
The Crown case is that you there attacked the deceased, dragged her into the laneway and raped her by introducing your penis into her vagina until you ejaculated. The version of events which you gave Professor Ogloff on 17 May 2013 is, on those details, little different. You told him that when you reached the laneway, you kissed the deceased and tried to touch her bottom and that she reacted by stepping back and slapping you across the face. Then you ‘lost it’ because, you said, you ‘always had trouble when someone put their hands on me – I fight’; and, with that, you pulled her towards you, turned her around, pushed her onto the bonnet of a car, tore her panties and raped her until you ejaculated. Then, after you had done with her, you strangled her to death.
When interviewed by police on 27 September 2012, the only thing which you said about killing her was that you strangled her with your hands. You provided more detail in the version of events which you gave to Professor Ogloff. You told him that, after you had ejaculated and were pulling up your pants, the deceased became aggressive and you told her to ‘calm down’. Instead of calming down, she became angry and grabbed at you and hit you with her mobile telephone, and she said that she was going to call the police. You responded by putting your arms around her to ‘quieten her down’ and, according to you, she went back and hit her head on the concrete. You said you could feel that there was blood coming from her head. Nevertheless, you held her down with your hand ‘on the bottom part of her neck’ and maintained pressure until she stopped moving. Asked how long that took, you said no more than a minute and that, because you are not a small person and fairly strong, you should have known better. After that, you said, you sat there crying, panicking, because the deceased had ceased to breathe.
After you had killed the deceased, you left her body in the laneway and returned to your home in Coburg. There you collected your other car[1] and a shovel and drove back to the laneway. You arrived there at approximately 4.22 am and loaded the deceased’s body into the boot of the car. Then you drove out to the country, to Blackhill Road, Gisborne South, where you dug a shallow grave at the side of the road and buried her body in it. The grave was only 35 cm deep and barely the length of the deceased. Her body was still partially naked from the waist down where you had ripped aside her panties and stockings in order to rape her. You threw in the remains of her stockings and bra which you had also torn from her when you raped her. Then, at various places along the way back to the city you threw items of her personal possessions randomly out of the car as you drove along and, when you got home, you destroyed her mobile telephone.
[1]A different car to the one left at Newmarket.
The next day, Sunday 23 September 2012, you thoroughly cleaned the inside and outside of your car and, on 24 September, you had four new tyres fitted to the vehicle. You had planned to do that before you killed the deceased, but you proceeded hoping thereby to eradicate forensic evidence likely to connect you with the crime scene.
Fortunately, your efforts to evade detection proved inadequate. Using CCTV footage collected from cameras at various points along Sydney Road, Brunswick, City Link records of vehicles passing under the Moreland Road gantry and virtual telephone data obtained from a number of sources, plus a host of witness statements, police were ultimately able to determine that you were the killer.
At 2.08 pm on 27 September 2012, you were arrested at your home and conveyed to the St Kilda Road Police Complex. When interviewed, you initially denied any involvement in the offending and, for the next three and a half hours of the interview, you maintained your denial and told a farrago of lies as to your whereabouts at the time of the crime. As the interview proceeded, however, and interrogating police progressively laid before you the evidence which they had assembled, you began to make admissions which ultimately culminated in a confession that you had raped and killed the deceased. Subsequently, you accompanied police to the place in Gisborne South where you had buried her body. Crime scene investigators were called and exhumed it. Upon your return to the police complex, you were charged with the deceased’s rape and murder and you have since been remanded in custody.
Post mortem examination of the body revealed, among other details, evidence of facial congestion with petechial haemorrhage involving the conjunctivae and skin of face in the forehead, periorbital and periauricular regions. Bruising was noted in the region of the left mastoid and along the body of the mandible on the left. A laceration reflective of blunt trauma was noted within the mouth on the inner part of the lower lip. On the neck, bruising was noted anteriorly and extending to the right with the bruising assuming a discrete discoid form in places. On the left the bruising was slightly obscured by post mortem change. The discoid or circular appearance of the bruising of the neck raised the possibility of marks left by finger tips, representing an example of manual strangulation, although there were no abrasions to the skin such as might be caused by fingernails of the perpetrator. Nor was the hyoid bone broken. But internal examination of the neck structures revealed intramuscular haemorrhage involving the strap muscles of the neck on both the right and the left in all four layers. There was also damage to the larynx, in the form of a fracture of the right inferior thyroid cartilage cornua and disruption of the cricoid-thyroid membrane on the right. All of the bruises identified had features both macroscopically and microscopically of recent injuries sustained in the peri mortem period. The cause of death was determined to be compression of the neck.
The nature and gravity of the offences
Murder is the most serious offence in the criminal calendar and hence the maximum penalty is life imprisonment. Rape is a very serious offence, and hence the maximum penalty is 25 years’ imprisonment. The combination of rape and murder of the kind you have committed is particularly heinous and, in your case, it is made even worse by your attempt to conceal the deceased’s body[2] and the fact that the offending was committed while you were released on parole[3] and on bail.[4]
[2]R v Von Einem (1985) 38 SASR 207, 218; R v Lowe [1997] 2 VR 465, 490; Director of Public Prosecutions v England [1999] 2 VR 258, 266 (Brooking JA), citing Director of Public Prosecutions v McKee [1999] VSC 207 (Cummins J).
[3]R v Airey [2006] VSCA 31, [13]; R v Lecornu [2012] VSCA 137, [31].
[4]R v Gray [1977] VR 225, 228-230; R v Basso & Frazzetto (1999) 108 A Crim R 392, 397-8 [21]-[25] (Chernov JA).
Moral culpability
When questioned as to your motives by investigating police, you said only that you were trying to be nice and that the deceased was going from nice to nasty to nice and that you raped and strangled her. It is apparent, however, from what you told Professor Ogloff that, although the deceased had ‘flipped you off’, as you put it, you were not to be put off. Instead, you assaulted her by kissing her and touching her on her bottom and, when she reacted by stepping back and slapping you across the face, as she was surely entitled to do, you became outraged that she should dare repel your advances in that fashion. You were determined to have your way with her and so you overpowered her and raped her where she stood. Then you attacked her again because she was threatening to call the police and in the process you strangled her to death.
This is not the first time that you have been found guilty of violent sexual offences. As your criminal record reveals, you are a recidivist violent sexual offender who has
had little compunction about sexual offending when the mood takes you, or about threatening and inflicting violence as part of the process.
You were born on 14 July 1971 as Adrian Ernest Edwards and you grew up in metropolitan Melbourne as the eldest of five siblings. While still a teenager, you formed a relationship with a young woman of similar age and, after marrying her on 21 April 1990, you had two children by her, born in October 1990 and May 1996, respectively.
On 8 June 1990, when you were still only 18 years of age, and your then wife was three to four month’s pregnant with your first child, you detained another young woman against her will, attempted to rape her and then raped her in the bedroom of your home. You were charged with those offences on 10 June 1990 and released on bail pending trial.
While so released on bail, on 30 August 1990, you attacked a 17 year old girl as she walked to her home from a bus stop. You poked her in the eyes several times, ripped off her clothes and touched her on her breasts and vagina. You also attempted to put your penis into her vagina and made threats to kill her; saying to her, among other things:
You must think I’m stupid. I’m not going to do anything that will be evidence for you to go to the police with’.
After your wife gave birth to your first child in October 1990, on 12 December 1990, you gave a lift to a 16 year old girl as she hitch-hiked along the Woori Yallock – Healesville Road at Woori Yallock. Instead of taking her to Healesville, as she had expected, you detoured and stopped and, when she tried to get out of the car, you grabbed her face and put a hand across her mouth, and with your other hand grabbed the hair at the back of her head and tried to force her down to the top of your legs. Mercifully, she escaped and was able to give police a precise description of your appearance which led to your detection.
When arrested and interviewed, you at first steadfastly denied that you had anything to do with the matter and you produced a diary which you had falsified in order to give yourself an alibi. Eventually, however, when confronted with the evidence against you, you admitted that you were responsible for all three attacks.
On 7 June 1991, you were sentenced for those offences to a total effective sentence of five years’ imprisonment with a non-parole period of three years. In the course of his sentencing remarks, the County Court judge noted that, although it had been contended you were a very remorseful young man with excellent prospects of rehabilitation and nil likelihood of re-offending, he was not persuaded. Your motivation appeared to his Honour to be unfathomable and your pleas of guilty seemed far more dictated by an appreciation of the overwhelming nature of the case against you than by true remorse. Equally, your supposed state of depression and anxiety presented to his Honour as far more the product of fear for yourself than of any sense of contrition.
As events have turned out, his Honour’s observations have proved to be incisive. In 1995, you separated from your wife and, in July 2000, changed your name by deed poll to Bayley. After separating from your wife, you commenced a relationship with another woman, with whom you had two more children in 1998 and 2001, respectively. On 17 April 2001, while that lady was pregnant with the second child, you were arrested and charged with 16 counts of rape against five complainants committed between 1 September 2000 and 31 March 2001. When interviewed by police that day, you admitted sexual activity with each of the complainants but denied the use of force or any other wrong-doing. Once again, however, when confronted with the evidence against you, you admitted your guilt and then expressed remorse for what you had done.
On 26 April 2002, you were sentenced for those offences to 11 years’ imprisonment with a non-parole period of eight years. The County Court judge who sentenced you on that occasion noted that the five complainants were prostitutes who you saw as easy victims and unlikely to complain to police. In each case you negotiated a price for specified sexual services and then drove the victim to a laneway where you parked so close beside a fence that she could not get out of the car. Once you had her in that position, you used an array of threats and violence to force her to engage in a series of sexual acts which caused her horrifying distress. The judge noted in particular that you forcibly raped three of the victims per anum causing one of them such gross injuries that she bled for three weeks thereafter, and that your response to each of their cries of pain and tears was to force the victim to engage in still further sexual acts of varying degrees of depravity.
As the judge also observed, one aspect of the offending which was even more disturbing than the violence of it was that you deliberately humiliated each victim. For example, you told one of them that:
Now you are going to do what I want you to do. If you fight I’ll fight you back. No-one goes around this alley. I can keep you here all night. Don’t try and get out of the car.
In another case, after forcing the victim to fellate you, you inserted your fist into her vagina, resulting in her experiencing such excruciating pain that she screamed, and then you penetrated her vagina with your penis while saying to her that she was nothing and no one cared for her. In your words:
I could dump you in the fucking alley and no one will give a shit … Did that fucking hurt? See look whose got the power. See I can do whatever I want. Well you should be loose enough now.
The judge concluded that the protection of the community demanded a long period of imprisonment followed by an opportunity to serve part or all of the maximum parole period by way of parole.
On 17 March 2010 you were released on parole. Almost immediately, you re-offended. On 27 February 2012, you were sentenced in the Magistrates’ Court at Geelong to three months’ imprisonment on one charge of recklessly causing serious injury committed on 12 August 2011, to be served cumulatively on the sentences imposed on you on 26 April 2002. You appealed against the sentence and were granted bail pending the appeal. Thus, you were on parole, on bail when you committed the subject offending on 22 September 2012.
It follows that, when you raped Gillian Meagher, you had already served 11 years’ imprisonment for a broad range sexual offences, including multiple counts of rape with violence. Consequently, you well knew that, if you were found guilty of her rape, you would be facing another lengthy sentence of imprisonment. Indeed, as you said to police when interviewed on 27 September 2012:
I want to do the right thing, you know. I don’t care. I’m – I’m going to gaol for a long time, so it – it – right now, I just don’t care, you know what I mean? I – I hope they bring back the death penalty before I get sentenced. Nah, I fuckin’ do man, ‘cause what – I have no life left. I’m 41 years old. I’ve already done eight years in prison and I know this is still going. I don’t care. But I’ve done – I’ve already done it. I can’t – I can’t do that again for what, 20 years, 25 years. Nah. It’s no life man. They should have the death penalty for people like me anyway.
The Crown has argued that, because of your previous offending, I ought be satisfied beyond reasonable doubt that the reason you killed Gillian Meagher was to avoid detection and punishment. On that view of the matter, it was submitted, I should regard your murder of her as an intentional killing in the aftermath of a violent rape and, therefore, as being amongst the worst category of cases for sentencing purposes.
Your counsel argued to the contrary, that it is not open to be satisfied beyond reasonable doubt either that you intended to kill the deceased or that you did so to avoid detection. At worst, counsel submitted, it was a case of unplanned fortuitous rape followed by a reckless murder committed as the result of panic in the context of a propensity to react violently to anyone who challenges your authority. Counsel relied in particular on evidence given by the Crown pathologist at the committal hearing that he was unable to say how long it would have taken or the degree of force which you would have needed to apply to strangle the deceased; that the injuries to the deceased’s neck were of a kind seen in both fatal and non-fatal cases; and that the damage to the larynx was unusual in the sense of being lower down than is typical, between the breast bone and the voice box. At one stage it was faintly contended on your behalf that such evidence tended to support the possibility that you held the deceased down by placing your hand on her upper chest and that during the course of the exercise your hand moved upwards causing compression without an intention to kill.
On the basis of your admissions to the police and Professor Ogloff, I am persuaded beyond reasonable doubt, that when you saw an opportunity to rape the deceased, you took it. Whether you formed the intention to do so in Sydney Road when you first saw her at or before the Duchess Boutique or only later when you got near the laneway in Hope Street I am unable to say. Either is possible and I think the former is more likely than the latter. But there being a reasonable doubt about it, I sentence you on the basis that it is not established that you formed the intention to rape her until you were at the intersection of Hope Street and the laneway. Even so, it was a savage, violent rape of the gravest kind committed upon a woman whom you knew was most certainly not consenting.
On the basis of your admissions to the police, the forensic evidence as to the nature of her injuries and your admissions to Professor Ogloff, I am also satisfied beyond reasonable doubt that you strangled the deceased with intent to kill her.
As you said to police, you strangled her. As you told Professor Ogloff, she was going to call the police, things escalated and you pushed her down and held her down with your hand ‘on the bottom part of her neck’ and ‘maintained pressure and she eventually stopped moving’. As appears from the forensic evidence, she was a small woman, only 157 cm tall and weighing only 55 kg. Consequently, a man of your size and strength could easily have controlled her. It follows that, apart from the fact that she was about to call the police, and apart from the sadistic pleasure which you evidently derive from hurting women, there was no reason to hold her on the ground by the neck until she ceased to breathe. In the absence of a statement by you to police or to Professor Ogloff, or any sworn testimony, as to your intention at the time, I am the more confident to infer[5] from the facts to which I have referred that you strangled Gillian Meagher with intent to kill her either because she would otherwise have called the police or because of some form of perverted pleasure which derived from taking her life.
[5]Weissensteiner v The Queen (1993) 178 CLR 213, 230-231 (Mason CJ, Deane and Dawson JJ); cf ADG v R [2011] VSCA 430, [49] (Bongiorno JA).
Accordingly, I accept that in terms of moral culpability your killing of the deceased ranks among the worst kinds conceivable and that you must be sentenced accordingly.
Community protection
The principal sentencing considerations in the formulation of the punishment to be imposed on you are denunciation, general deterrence and specific deterrence. They are informed by the need for community protection in light of the extraordinary range of your previous offending. Generally speaking under our system of law, it is not open to impose a sentence greater than is proportionate to the crime which is charged. As the High Court observed in Veen No 2, however:
antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.[6]
[6]Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
Consistently with that principle, the similarities between your rape and murder of Gillian Meagher and the sexual and other violent offences for which you have been sentenced in the past are relevant to the sentence I am to impose. I am satisfied beyond reasonable doubt that your previous offending illuminates your moral culpability for the rape and murder of the deceased and that, taken in conjunction with them, demonstrates a dangerous propensity to subject women to rape and violence in order to satiate your perverted sexual desires. Each of these considerations bespeaks a need for severe punishment to provide the measure retribution, deterrence and protection of society which is required.[7]
[7]Baumer v The Queen (1988) 166 CLR 51, 57-8.
Victim impact
As emerges from the victim impact statements which were read on the plea, your rape and murder of the deceased has had profound, terrible effects on the lives of other people. On the evidence before me, Gillian Meagher was a vibrant, talented young woman who in all probability had the greater and best part of her life still in front of her. By your crimes, you have deprived her of all of that. You have also deprived her husband of her love and companionship and the prospect of the children to which they looked forward together. You have stolen from her parents their entitlement to see their daughter blossom and mature as they grow old and to bear the grandchildren to which they looked forward. And you have taken away from her brother the love and support of his only sister. Each of their victim impact statements tells of grief and a sense of loss and dismay which, for those of us who have not experienced it, can only be imagined. The sentence I am to impose upon you must have regard to the suffering you have caused them.[8]
[8]Sentencing Act 1991, s 5(2)(daa).
In addition to family, friends and colleagues who worked with the deceased at the Australian Broadcasting Corporation and also a broader range of persons within the community who knew or knew of her have been deeply affected and saddened by the loss of her life, and still more dismayed by the outrageous nature of the offending by which you took it. The sentence I am to impose on you must be sufficient to denounce the brazenness of that offending, to deter others from similar offending and to accord to a properly informed community perception of just punishment.[9]
[9]Sentencing Act 1991, s 5(1)(a); Fox and Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed, [3.402]-[3.404].
Psychological considerations
Those conclusions are in large part fortified by the findings of Professor Ogloff. As a
result of his psychological testing of you, he has concluded that, although he does not consider you to be psychopathic, you display numerous problematic personality traits, of a severity uncommon in clinical samples, which are consistent with Borderline Personality Disorder, manifesting in fairly rapid and extreme mood swings and in particular poorly controlled anger. The effects of that disorder are in turn exacerbated by your alcohol dependence. Although Professor Ogloff considered that the likelihood of you reoffending violently is moderate when considered separately, he concluded that the likelihood of you reoffending sexually is very high - indeed at the level of at least two to three times greater than the average sex offender – and, as history shows, when you offend sexually you invariably also offend violently. Professor Ogloff adds that you would require ‘intervention and ongoing change in all areas should the level of risk ever eventually decrease and become manageable’.
Based on what you told him, Professor Ogloff conjectured that the factors which contributed to your personality disorder include that you were physically and sexually abused as a child, thereby increasing the statistical risk of sexual deviance and other personality disorders, and that your innate sexual deviance, the dysfunctional personality features underlining your feelings, perceptions and behaviours, and the consumption of alcohol resulting in reduced cognitive capacity and increased disinhibition and sensitivity to perceived slights, all contributed to your rape and murder of Gillian Meagher. His analysis accords with your history of offending and therefore I am inclined to accept it.
It was not suggested, however, and it could not properly be contended that your condition was such as to engage any of the ameliorating sentencing considerations adumbrated in R v Verdins.[10] Rather it, provides a framework or context which explains without excusing the perversity of your transgressions.[11]
[10](2007) 16 VR 269, 286.
[11]R v Zhang [2009] VSCA 236, [13] (Buchanan JA).
Plea of guilty and remorse
The fact that you have pleaded guilty entitles you as a matter of law to a discount on the penalty which would otherwise have been imposed on you. To the extent that I am able to do so consistently with the requirements of community protection,[12] I shall allow a discount which reflects the full utilitarian value of the plea, meaning thereby the financial savings to the state of avoiding the need for a trial and the sparing of witnesses, jurors and others from the distress and difficulties which it would have entailed.[13]
[12]Sentencing Act 1991, s 6D(a).
[13]Phillips v R [2012] VSCA 140, [57] (Redlich JA and Curtain AJA).
Despite the Crown’s submissions, I am also persuaded that your plea reflects some small degree of true remorse which warrants a further amelioration of penalty.[14] That is apparent in some of the statements which you made to investigating police when interviewed on 27 September 2012. At one point in the interview, after you were presented with the evidence assembled against you, you appeared almost overwhelmed by a sense of your own wrongdoing and, for a time, sincerely penitent for what you had done. Later you took the police to where you had buried the deceased’s body and before trial entered pleas of guilty to rape and murder. It is true that your plea of guilty to murder did not come until relatively late. But that is explicable on the basis that, up to that point, you were also charged with other offences which were only then withdrawn.
[14]Cf Pasquale Barbaro v R [2012] VSCA 288, [40] (Maxwell P, Harper JA and T Forrest AJA), citing Phillips v R [2012] VSCA 140, [69] (Redlich JA and Curtain AJA).
The likelihood of some small degree of genuine remorse is strengthened by Professor Ogloff’s evidence that you have expressed feelings of guilt and remorse to him and to other health care professionals whom you have seen during incarceration. While he acknowledges that part of your regret is no doubt born of a sense of the destruction of your own life, and that you have the ability to play the system and have done so in the past, he considered that you appear sincere in deeply regretting that you raped and killed the deceased. He noted that you are struggling with the realisation that you are capable of causing a person’s death and more generally with your proclivity for violent sexual offending. He cited the fact that, since incarceration, you have made one serious attempt to commit suicide and, when asked why you had attempted it, you answered that you sincerely wanted to die as a result of your situation and the grief you had caused everyone else. You spoke of doing the right thing by the deceased and her family.
Prospects of rehabilitation
I am not persuaded, however, that your plea of guilty should be taken as a favourable indication of your prospects of rehabilitation. As I have noted, you were previously sentenced on 7 June 1991 for offences of detention for sexual penetration, two counts of attempted rape, rape, threat to kill and assault with intent to rape; and, on 26 April 2002, for 16 counts of rape involving the subjection of five women to violent sexual abuse of a most degrading and disturbing kind. For those offences you have already spent 11 years in prison, representing more than a quarter of your life thus far and almost half of the time elapsed since you began to offend at the age of 18 years. As it seems to me, the fact that you have previously pleaded guilty to offences and then repeatedly offended again means that your admissions of guilt and such remorse as they may reflect are a very poor indicator of your prospects of rehabilitation and, therefore, of the level of penalty necessitated by the requirements of specific deterrence and community protection.[15]
[15]Phillips v R [2012] VSCA 140, [69] (Redlich JA and Curtain AJA).
On previous occasions, various mental health care professionals have expressed optimistic opinions and prognoses as to the prospects of your rehabilitation. Without exception, they have proved unfounded. Consequently, I see little reason now, and little has been suggested, to suppose that you will ever be rehabilitated. Indeed, Professor Ogloff reported that, given the complexities of your presentation, and the presence of many risk factors, the prognosis for treatment and reformation is very guarded indeed. He posited that it might be enhanced, although by how much he chose not to say, by the fact that you face a long period in gaol and may be afforded the opportunity for some sort of treatment and stabilisation. More certainly, however, he cited statistical evidence that, although on average the risk of sexual offending declines with age, the decline is not necessarily very great until at earliest after the age of 60 years.
Non-parole period
To say so is not to exclude altogether the chance of improvement. As bad as your crimes are, you will have the opportunity in gaol to strive for rehabilitation and I propose to set a non-parole period as an incentive for you to try. I am also conscious that you are almost 42 years of age and thus that you may well have passed the halfway mark of your life.[16] It remains, however, that, because of the enormity of your offending against the deceased, the gravity and frequency of your previous offending, and the consequent need for community protection, I have no choice but to sentence you to prison for a very long period of time[17] and to impose on you a non-parole period which, regardless of how long you live, is bound to exceed the usual range.[18]
[16]R v Lowe [1997] 2 VR 465, 488.
[17]R v Bazely (1993) 65 A Crim R 154, 159.
[18]R v Romero [2011] VSCA 45, [25] (Redlich JA); Kumova v R [2012] VSCA 212, [12]-[16].
Hardship
I bear in mind, as your counsel submitted, that prison will be extremely hard for you because of the need for you to be isolated and protected for your own safety.[19] I shall allow for that by mitigating penalty to the extent I am able consistently with the requirements of just punishment. But, as your counsel properly conceded on your instructions, given that you murdered the deceased in the wake of the violent rape to which you had just subjected her, against a background of multiple previous convictions for rape with violence and other violent sexual offences, there is little scope for reduction.
[19]R v Rostom [1996] 2 VR 97, 101-103; R v ZMN (2002) 4 VR 537, 544 [28] (Winneke P); cf R v Males [2007] VSCA 302, [40] (Kellam JA).
Totality
I note that you remain to serve some three years of the sentence imposed on you on 26 April 2002 (from which you had been released on parole when you committed the subject offences) and that it must be taken into account in the assessment of the totality of the sentence which is now to be imposed on you.[20] For reasons to which I shall come, however, I consider that the sentence which I am to impose should be served cumulatively on the remainder of that prior sentence.
[20]R v Alashkar & Taylor (2007) 17 VR 65, 74-75 [38]-[40] (Vincent, Redlich, Kellam JJA).
Current sentencing practices
I am bound to have regard to current sentencing practices. Thus, by reference to a number of relatively recent decisions, your counsel sought to persuade me that, although a head sentence of life imprisonment is within range, your offending is not amongst that very worst class of case which warrants a sentence of life imprisonment without parole.[21] I accept that submission. Apart from anything else, I consider that your plea of guilty and what I perceive to be some small degree of genuine remorse keeps it out of that category.
[21]See, for example, R v Coombes [2011] VSC 407; R v Dupas [2007] VSC 305; R v Debs [2007] VSC 220; Debs and Roberts v R [2005] VSCA 66; R v Dupas [2004] VSC 281; R v Dupas [2001] VSC 109; Camilleri v R [2001] VSCA 14; Lowe v R [1997] 2 VR 465; R v Coulston [1997] 2 VR 446.
Counsel also referred to a number of cases which they suggested are indicative of the range of sentences of less than life imprisonment for offences of murder comparable to the nature and gravity of that which you have committed.[22] That submission is less persuasive. Each case turns on its own facts and circumstances and, as in your case, is to a large extent informed by the age and antecedents of the offender and his or her prospects of rehabilitation. In my view, the nature and gravity of your offending and your antecedents are such that nothing short of life imprisonment will suffice.[23] I do not overlook that you have pleaded guilty and, as I have said, you are entitled to a discount on sentence in recognition of your plea. But, in this case, the nature and gravity of your offending, coupled with your antecedents, dictates that there can be no reduction in the head sentence.[24] The allowance must, therefore, be limited to the non-parole period.
[22]Armour v R [2012] VSCA 188, 26 yrs with 21 yrs NPP for on plea of guilty to murder; Phillips v R [2012] VSCA 140; 23 yrs with 19 yrs NPP on plea of guilty to murder of father by disaffected wayward son; White v R [2011] VSCA 441, 26yrs with 20 yrs NPP on plea of not guilty to killing security guard in course of armed robbery; Bui v R [2011] VSCA 404, 25 yrs 6 mths with 20 yrs NPP on plea of not guilty to murder but guilty to other offences arising out of participation in drugland retribution killing (co-operation with Crown); Glascott v R [2011] VSCA 109, 24 yrs with 20 yrs NPP on plea of guilty to murder of solicitor by brain damaged disaffected client; Nguyen v R [2010] VSCA 31, 25 yrs with 20 yrs NPP on plea of guilty to double murder by Vietnamese immigrant of employer’s mother and girlfriend; Hettiarachi v R [2009] VSCA 270, 27 yrs with 20 yrs on plea of not guilty to double murder by Sri Lankan immigrant of parents of estranged wife, arising out of marital breakdown and forcible exclusion from family home; Cavkic & Ors v R [2009] VSCA 43, sentences ranging from 28 yrs and six mths with 23yrs 6 mths NPP down to 24 yrs with 19 yrs NPP on pleas of not guilty by hit men to murder of solicitor to cover up financial fraud; McCullagh v R (No 3) [2007] VSCA 293, 22 yrs with 19 yrs NPP on plea of not guilty to murder by one partner of another following disclosure and argument; R v Berry & Wenitong (2007) 17 VR 153, 26 yrs with 20 yrs NPP and 23 yrs with 17 yrs NPP on plea of not guilty to murder of inmate of prison by two other inmates; Guthrie & Nuttal v R [2006] VSCA 192, sentences of 29 yrs with 25 yrs NPP and 26 yrs with 23 yrs NPP on pleas of not guilty to one and guilty to other and not guilty to both counts of alcohol fuelled but otherwise planned kidnap and double murder arising out of resentment over allegations made against one perpetrator by one of victims; Goodall v R [2000] VSCA 106, 23 yrs with 18 yrs NPP on plea of guilty to murder and rape arising out of pathological jealousy.
[23]See and compare, Collins v R [2012] VSCA 163; Acar v R [2012 VSCA 8; Freeman v R [2011] VSCA 349; Goussis v R [2011] VSCA 117; Faure v R [2011] VSCA 115; Hudson v R (2010) 30 VR 610; Babic v R [2010] VSCA 198; Clarke v R [2006] VSCA 43; Spina v R [2005] VSCA 319; Quarry v R (2005) 11 VR 337; Brazel v R (2005) 153 A Crim R 152; Horrocks v R [2001] VSCA 230.
[24]R v DJH [1998] VSCA 108, [12] (Brooking JA); R v Quarry (2005) 11 VR 337, 347 (Batt JA).
Little was said on the plea about current sentencing practices for the offence of rape. According to the Sentencing Snapshot No 145 of June 2013, for the period 2007-8 to 2011-12, sentences for that offence ranged from two years’ imprisonment to 16 years’ imprisonment with a median length of five years. Given, however, the many forms which rape may take and that sentences for rape, just as with murder, are to a very significant extent informed both by the nature and gravity of the offence and the antecedents and prospects of rehabilitation of the offender, such statistics are of scant assistance.
Two cases which appear to me to provide a greater degree of guidance are Gill v R[25] and Tutchell v R.[26] In Gill the offender pleaded guilty to a very violent rape of a 22 year old victim seized in a public place late at night which caused life threatening injuries. The offender was 28 years of age, a multi-drug abuser with previous convictions for offences of violence and limited remorse, although no previous convictions for sexual offences. He was sentenced to 16 years’ imprisonment for the offence of rape and a total effective sentence of 17 years’ imprisonment with a non-parole period of 13 years. In Tutchell a 49 year old intellectually disabled repeat offender with an uncontrollable sex urge and alcohol dependence was sentenced to 12 years’ imprisonment with a non-parole period of nine years for one charge of rape of a 19 year old intellectually disabled complainant, constituted of failing to withdraw when requested. Self-evidently, there are significant differences between your rape of the deceased and the circumstances of those two cases; but, having regard to the considerations essayed in Gill,[27] I regard this offence as falling within the category of particularly serious. The deceased was unknown to you. You were larger and stronger than she and you used that physical advantage to dominate her. In effect, you dragged her off the street, late at night while she was going peaceably about her own business within a stone’s throw of her home. The rape was savage and degrading. It took place over time. And as the post mortem examination showed, the injuries in which it resulted were serious, if not life threatening. Were it not for the fact that you murdered her, she would surely have suffered lasting emotional sequelae. And, unlike Gill, who had no prior convictions for sexual offences, you have twenty times before been convicted of violent rapes and other violent sexual crimes.
[25][2010] VSCA 67.
[26] (2006) 168 A Crim R 25; [2006] VSCA 294.
[27][2010] VSCA 67, [52]-[62] (Ashley, Bongiorno, Harper JJA); cf [2010] VSCA 67, [52]-[62] (Ashley, Bongiorno, Harper JJA); cf Hasan v R (2010) 31 VR 28, 42-3 [57]-[58] (Maxwell P, Redlich and Harper JJA); Anderson v R [2013] VSCA 138, [25].
Serious violent and sexual offender
Because you have previously been convicted of serious violent offences for which you have been sentenced to imprisonment, you now stand to be sentenced for the murder of Gillian Meagher as a serious violent offender and, because you have previously been convicted of multiple counts of rape and other sexual offences for which you were sentenced to terms of imprisonment, you now stand to be sentenced for the rape of Gillian Meagher as a serious sexual offender. I am bound, therefore, by s 6D(a) of the Sentencing Act 1991 to regard the protection of the community as the principal purpose for which the sentence for each of your offences is to be imposed.
Under s 6D(b) of that Act, I am empowered to impose sentences longer than is proportionate to the gravity of the offence if necessary to achieve the purpose of community protection. In the result, however, I do not find it necessary to do so. In my view, the nature of the offences for which you stand to be sentenced, the consequent need for denunciation, deterrence and just punishment, and the requirement for community protection conduce to the result that it is sufficient to impose sentences proportionate to the gravity of your crimes.
Section 6E of the Act provides that, unless otherwise directed, the term of imprisonment which I am to impose on you for rape must be served cumulatively on the sentence of imprisonment which I am to impose on you for murder and cumulatively on any uncompleted sentence or sentences of imprisonment which you remain to serve. In your case, even keeping in mind the considerations of totality to which I have referred, I think it right that the sentences should all be served cumulatively.
Sex Offenders Registration
Finally, it is necessary for me to say that, based upon the subject offending and your previous offending, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of the community and, accordingly, I shall make an order under s 11 of the Sex Offenders Registration Act 2004 that you comply with the reporting obligations of that Act. In accordance with the provisions of that Act, the reporting period will be for the rest of your life.[28]
[28]Sex Offenders Registration Act 2004, ss 34(1)(c) and 34(4)(a).
Sentence
Adrian Ernest Bailey, you stand convicted of the rape and murder of Gillian Meagher and, for the reasons I have given, I now sentence you therefor as follows:
1) On Charge 1 (Murder), I sentence you to life imprisonment.
2) On Charge 2 (Rape), I sentence you to 15 years’ imprisonment.
3) In accordance with s 6E of the Sentencing Act 1991, the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1. Accordingly, the total effective sentence is life imprisonment.
4) In accordance with s 16(3B) of the Sentencing Act 1991, I direct that the sentences which I have imposed on you are to be served cumulatively on any period of the sentence imposed on you by his Honour Judge Duckett on 26 April 2002 which you may be required to serve in custody in a prison.
5) Pursuant to s 6F of the Sentencing Act 1991, I declare that you are sentenced on Charge 1 as a serious violent offender and on Charge 2 as a serious sexual offender and I direct that the fact of the declaration and its details be entered in the records of the court.
6) Pursuant to s 14 of the Sentencing Act 1991, I set a non-parole period of 35 years in respect of all sentences which you are to serve or complete and I direct that the fact of the declaration and its details be entered in the records of the Court.
7) Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to a total effective sentence of life imprisonment without parole.
8) Pursuant to s 18 of the Sentencing Act 1991, I declare that the number of days which must be reckoned as already served under the sentence is four days including this day and I direct that the fact of the declaration and its details be entered in the records of the court.
9) I shall make forensic sample and disposal orders in the terms submitted by the Crown.
10) Finally, I shall have my associate hand to you a notice of the reporting obligations which will apply to you under the Sexual Offenders Registration Act 2004 in the event that you live long enough ever to be released from gaol.
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