R v Brown
[2018] VSC 742
•29 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0179
| THE QUEEN |
| v |
| PETER RAYMOND BROWN |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 26 & 29 October 2018 |
DATE OF SENTENCE: | 29 November 2018 |
CASE MAY BE CITED AS: | R v Brown |
MEDIUM NEUTRAL CITATION: | [2018] VSC 742 |
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CRIMINAL LAW – Sentence – Murder – Multiple weapons of house brick, bag, duct-tape and golf club – Persistent attack – Major destructive injuries to the head – Disposal of body – Standard sentencing scheme – Instinctive synthesis – Legislative guidepost – Very serious example of offence – Above the middle of the range of seriousness – High moral culpability – Plea of guilty – Remorse – Denunciation – General deterrence – Reasonable prospects of rehabilitation – Sentence of thirty years’ imprisonment with non-parole period of twenty four years – But for plea of guilty, sentence of thirty five years – Sentencing Act1991 (Vic) ss 5, 5A, 5B, 6AAA and 11A – Sentencing Amendment (Sentencing Standards) Act 2017 (Vic) – Crimes Act1958 (Vic) s 3(2)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr D McGlone | C. Marshall and Associates |
| For the Criminal Bar Association | Mr D Gurvich QC Mr C Carr | |
| For Victoria Legal Aid | Mr T Marsh Mr M Phillips |
HIS HONOUR:
Introduction
Peter Raymond Brown, on 16 August 2018 you pleaded guilty to the murder of Simone Fraser.
On 1 February 2018, new sentencing laws came into effect in Victoria. They can be conveniently described as the ‘standard sentence scheme’. As you committed the offence of murder on 9 March 2018, the sentence I will impose must take into account the effect of these new provisions. This is the first case in the Supreme Court of Victoria that deals with the application of this new scheme. These reasons will explain the impact of the standard sentence scheme on the sentence imposed.
Circumstances of the offending
On Sunday 13 March 2018, the body of Simone Fraser was located approximately 12 kilometres west of Mulwala, just inside the entrance to the Murray Valley Regional Park in the Mulwala State Forrest. Mrs Fraser’s body was found with a plastic bag duct-taped over her head. She had suffered major head trauma. You murdered Mrs Fraser on 9 March 2018 and then disposed of her body in the Park early on 10 March 2018.
At the time of her death, Simone Fraser was 57 years old. She had married Robert Fraser in 2002 and they remained together until his death in 2009. In April 2017, Mrs Fraser received approximately $350,000 from her late husband’s estate. Prior to this, she had been on a disability support pension following an accident she suffered in 2014. The payout significantly improved her quality of life and her friends described how she was feeling happy and positive about her future.
You and Mrs Fraser met in January 2017. The two of you had a brief relationship but were not been seriously involved with each other. By December 2017, Mrs Fraser had formed a new and positive romantic relationship which existed up until the time of her death.
However, in early February 2018, you re-initiated contact with Mrs Fraser. She told you that she was seeing someone else and had moved on. Despite being told this, you began asking to borrow money.
In October 2017, you met a younger female online. She was 25 years old and lived overseas in the Philippines. Soon after meeting this person online, you began to send her sums of money, resulting in a rapid decline into debt. You became infatuated with this woman, who you have never personally met. From October 2017 to March 2018, you transferred almost $26,000 to her. During this time you were receiving Transport Accident Commission payments of $1,257.18 per fortnight as a result of suffering a serious car accident in 2016. You transferred almost all of these payments to this woman. You also borrowed money from your old employer and at one point, you took $14,000 from your father’s account, he being gravely ill at the time.
In February 2018, you also borrowed money from Mrs Fraser. You told her that you needed it urgently and promised to pay her back. Mrs Fraser loaned you a total of $3,800 which she gave to you in a series of payments.
After some time, she began asking for her money back. You repeatedly offered a series of excuses as to why you could not repay her, but promised you would in the future..
On a number of occasions, you even attended banks and ATMs with her, but always came up with an excuse as to why funds were not available.
On 6 March 2018, you went to Mrs Fraser’s home for a meal and to discuss repayment. You both arranged to meet on 9 March, with the plan that she would ring or text you at 11.00 am that day and you would both go to the Westpac Bank in Melton to get her money. On 8 March, you both exchanged a series of text messages, and you assured her that you would have it the next day, being the day that you were due to meet.
On the morning of 9 March 2018, there were a series of text messages between the two of you, during which you confirmed that the money would be paid back that day. Your banking records reveal that between 2 and 9 March 2018, your account balance was $0.64. You did not have the means to pay the debt you owed.
Mrs Fraser arrived at your home around 11:00am. Shortly after, an argument occurred about the money. You were both outside at this time and you picked up a house brick and lashed out at her, hitting her head several times. After this first assault, you stopped hitting her and obtained a plastic bag and duct tape from inside. You returned to Mrs Fraser and put the plastic bag over her head. You then wrapped duct-tape tightly around her head and over the bag, with the intention of stopping her breathing.
However, you could still hear Mrs Fraser making noises, so you struck her head with a golf club. This was with such force that the head of the golf club snapped off. You struck Mrs Fraser with the intention of killing her and shortly after, she stopped making noises. This violent attack amounts to the offending set out in the charge, namely the offence of murder.
You then dragged Mrs Fraser’s body by her legs into the garage. You reversed her motor car to the garage door and put her body into the boot. You returned into the house to clean blood off yourself and from the surroundings. You washed and discarded the shirt you were wearing. You cleaned some blood from inside the house and washed the outside bricks in an attempt to remove bloodstains.
You then obtained a bag, some clothes and your dog, and drove Mrs Fraser’s body away from the premises. After you had passed through Rockbank and Digger’s Rest, you discarded Mrs Fraser’s mobile telephone by throwing it out the window.
At 11.49am, less than an hour after you killed Mrs Fraser, and while you were transporting her in the boot of her vehicle, you registered the first of her credit cards with an international money remittance company, Remitly. Shortly after, you registered the second credit card. You unsuccessfully tried to transfer money overseas to your online female friend.
At 12.48pm you contacted Remitly and were told that your attempt had been rejected. You were annoyed and tried to set up a Western Union account using Mrs Fraser’s identification, but this was also unsuccessful.
You continued driving up the Hume Highway with Mrs Fraser’s body in the boot, making stops to purchase various items using her credit cards. Shortly before 9:00pm, you arrived at the Murray Valley Regional Park and made an effort to locate a campsite. You then sat drinking and smoking, waiting for darkness to fall.
In the early hours of 10 March 2018, you removed Mrs Fraser’s body from the boot, leaving it near a tree about 20 metres south-west of the Park entry. Having disposed of her body, you then commenced your drive back to Melbourne.
At 6.37am, CCTV footage shows you in Mrs Fraser’s vehicle, purchasing items from McDonald’s drive-through in Yarrawonga. You made two more stops on the way home, purchasing fuel from a petrol station and a hose from Bunnings. You used your victim’s credit cards for all of these purchases.
On your arrival back in Melbourne, you parked Mrs Fraser’s motor vehicle at a friend’s address in Rockbank. You knew your friend was away camping and you remained at that address over the long weekend, sleeping in a caravan at the rear of the premises.
On 11 March 2018, Mrs Fraser’s daughter, Lacey Wilson, reported her mother as a missing person. Police investigators soon discovered that Mrs Fraser had made plans with you on the morning of her disappearance.
On 12 March 2018, police officers went to your home address and, with the consent of the owner of the premises, entered the garage where you were living. Police quickly observed indicators that a serious assault had occurred at the premises. There was blood and apparent drag marks on the floor, and blood spattering on the bed. They located a brick with visible hair attached to it and a bloodied t-shirt.
On 13 March 2018, you were located at the Watergardens Shopping Centre in Sydenham. You had transferred $200 to your online friend, before video calling her from the carpark, saying that you ‘did something bad’. You remained in the car at the Shopping Centre for approximately one and a half hours.
You were still sitting there on the video call when you were arrested by police.
When confronted by police, you initially denied any knowledge of the disappearance of Mrs Fraser. However, you later made admissions to killing her and disposing of her body in Mulwala. During a formal interview you made numerous admissions, including that:
(a) you had met Mrs Fraser at the Melton Country Club;
(b) she had lent you a substantial amount of money, about $4,000, that you could not pay back;
(c) on Friday 9 March, Mrs Fraser came to your home to collect the money that you owed her;
(d) there was an argument that got heated and she was going for a brick in the backyard;
(e) you grabbed a brick and hit her three to four times with it;
(f) you got a plastic bag and duct tape and put it over her head because she was still making noises;
(g) you hit her five to six times to the head;
(h) you put the bag on her head to stop her breathing;
(i) you hit her again with the golf club and she stopped making noises;
(j) you put her in the boot of her car and drove away;
(k) you used her money and cards to purchase items along the way; and
(l) you waited until after midnight before taking Mrs Fraser’s body from the boot of the car and putting her underneath a large tree, and covering her up.
At approximately 3.30pm on 13 March 2018, New South Wales (NSW) Police located the body of Mrs Fraser at the location which you had described.
Autopsy findings
On 15 March 2018, an autopsy revealed Mrs Fraser suffered scalp lacerations and multiple bruises, and had four individual skull fractures.
The autopsy was unable to determine the cause of death, as her body was moderately to severely decomposed. However, the examiner was of the opinion that if Mrs Fraser was alive at the time the plastic bag was put over her head, this may have compromised her ability to breath, causing asphyxia and death. It was also deemed possible that a head injury was a contributing factor or direct cause of her death.
Procedural history
On 13 March 2018, you were charged with the murder of Simone Fraser and remanded in custody. On 4 July 2018 at a committal mention, you were committed to the Supreme Court by way of a straight hand-up brief. Following an initial directions hearing, you made a plea offer on 13 August 2018 and the matter was resolved. On 16 August 2018, you pleaded guilty to the murder of Simone Fraser.
Victim impact statements
During the hearing, I received victim impact statements from Lacey Wilson, the daughter of Mrs Fraser; Michelle Cane, a sister of Mrs Fraser; and Sharyn Hall, a close friend of Mrs Fraser.
Ms Wilson described herself as the daughter and only child of Mrs Fraser. She eloquently expressed her response to the tragic loss of her mother. She described how she felt sick, angry and sad, often feeling isolated and numb. She is disturbed by feelings of melancholy and emptiness because of the severing of the physical and emotional bond between her and her mother. Ms Wilson described a lack of joy from doing anything and how the horrible loss of her mother has affected her other relationships. She also expressed how she often feels ignored and ostracised, with general feelings of worthlessness. Ms Wilson described how her life has been ruined by a tortuous living nightmare that she hoped she could wake up from.
Ms Cane described the total devastation at losing her younger sister, Simone. She explained the impact that this traumatic event has had on her. Her sister’s disappearance was like an awful nightmare, with overwhelming sadness upon the shattering news that she was deceased. Ms Cane described her own feelings of fear, as the offence has left her nervous and anxious among strangers.
Ms Hall described Mrs Fraser as her best friend, and as incredibly honest, kind and gentle. She wrote of her extreme devastation, hurt and anger at Mrs Fraser’s death, taking her from her family and friends who loved her. Ms Hall described herself as having been a positive person before these events, but was now very cautious of others. She described feeling extremely lonely, isolated and scared. She expressed the hope that the day will come when she will be at peace.
The impact of your offending is profoundly felt by Mrs Fraser’s friends and family. Each of these victim impact statements describe far reaching and devastating loss, the effects of which will be felt for a long time.
Personal circumstances
Background
You are now 58 years old. You were raised in Brunswick and Melton with your three younger siblings. Your father died earlier this year and your mother presently lives in Melton. You were raised in a relatively strict family environment, and were sometimes subject to physical punishment, abuse and belittling behaviour. You left home at the age of 16, having completed Year 9 at high school. You have limited education and have been described as a disinterested student. You were often in trouble and, following periods of suspension from school, your father removed you from school.
After school you worked as a machine operator for five years, before commencing work as a glazier. This has been your predominant occupation, only ceasing approximately two years ago.
You have had two significant personal relationships, both lasting at least 10 years. The first was with a woman 10 years your senior who had four children. For much of this relationship, you all lived in Queensland. Following the end of this relationship, you moved back to Victoria and entered into a relationship with another woman, who also had four children. Together, you and your partner started a business and purchased your own home. After the business failed, the relationship destabilised, and you have not had any significant intimate relationships since. For a number of years after the breakup of your second relationship you resided at a caravan park in Rockbank.
Health and substance use
You have generally maintained good health, but injured your right shoulder in an accident two years ago. You have experienced anxiety and depressive symptoms, predominantly following the business failure in 2005. You briefly experienced suicidal thoughts, and were described antidepressant medication for a period of seven years. You have since slowly adjusted and recovered and have not required medication for over five years.
For the purposes of the plea, I received a report from consultant psychiatrist Dr Adam Deacon, dated 30 August 2018. Dr Deacon noted your early development being marked by elements of parental physical and verbal abuse, with you developing conduct problems in your mid-adolescence. This eventually led to your involvement with Youth Justice, including four periods of detention. Dr Deacon notes that your antisocial trajectory appears to have altered in early adulthood.
Dr Deacon noted a history of drug use, including a period of heroin dependency across 2010 and 2011, and a methamphetamine dependency in 2011 to 2012. You reported that you have rarely used illicit drugs over the last five years, except for occasional amphetamine use. You have been a consistent consumer of alcohol, but reported that this has not been problematic. Dr Deacon noted that your formal psychiatric history is limited to a transient and self-limiting depressive and anxious reaction, following the failure of your business.
Impact of the online relationship
Dr Deacon addressed the issue of the online relationship you formed with the woman in the Philippines in October 2017. He remarked on what appears to have been your immediate infatuation with this woman. Dr Deacon was of the opinion that your infatuation led to an obsessional fixation to the extent that you felt you needed to maintain continuous contact with her through video and telephone calls.
He described this as an unhealthy preoccupation which led you to neglect your own basic needs. As a result, your physical condition deteriorated as you neglected yourself, often slept in an armchair, and lost considerable weight due to a very limited dietary intake. On 30 January 2018, you were briefly admitted to Sunshine Hospital, having apparently collapsed. Information provided by your friends and associates confirmed that you were presenting differently to your normal state, with signs of physical decline and some non-specific mental changes.
Further, Dr Deacon reports that your obsession with your new ‘partner’ led you to neglect your social contacts, including a failure to support your father who was declining in health. It is alleged that at one point you stole money from your father, and eventually declined to attend his funeral. You also exhausted all of your financial resources, sending significant sums of money to the woman over the period of the relationship.
Mental health assessment
Dr Deacon is of the opinion that you do not present with a defined mental illness, although you appear to have symptoms of anxiety, with secondary depressive symptoms. He describes you as having become intensely and unusually infatuated with this younger woman, fantasising that she would become your life partner. Your desire for a relationship led you to become obsessively preoccupied to the extent that your psychosocial functioning altered. Dr Deacon opines that your mood state varied and that you became frustrated and angry in circumstances where you were exhausting your finances. Further, you displayed insecurity, anxiety and uncertainty as to whether this younger woman matched your desire for a relationship.
Dr Deacon was of the opinion that there is no evidence that your mental profile fits within the domain of a psychotic process. Your mental health likely declined, but Dr Deacon’s opinion is that your offending appears to have been incidental and primarily unrelated. He reported that your capacity to self-regulate and compose yourself was likely to have been compromised given your declining mental health status.
No argument was advanced that the principles as set out in R v Verdins [1] apply to you. Your counsel acknowledged that you have not experienced psychotic symptoms such as delusions, hallucinations, or passivity phenomenon. You have not required medication for over five years. It was however, acknowledged that at the time of your offending, you had formed what was described as a rather peculiar obsessive relationship. No link could be found between issues relating to your father’s death and this obsessive fixation, and there were no psychiatric or psychological links that could be established.
[1](2007) 16 VR 269; [2007] VSCA 102.
Standard sentencing scheme
The Sentencing Act 1991 (‘the Act’) was amended to include the standard sentencing scheme by Part 3 of the Sentencing Amendment (Sentencing Standards) Act 2017 (‘the Amendment Act’), which took effect on 1 February 2018.
Section 5(2)(ab) of the Act provides that a court must have regard to the standard sentence, if any, for the relevant offence.
Sections 5A and 5B of the Act set out the standard sentence provisions. Section 5A(1) provides:
(1) If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a)the offence is a standard sentence offence; and
(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
Section 3(2)(b) of the Crimes Act 1958 provides the standard sentence for murder is 25 years’ imprisonment. Before having regard to the standard sentence, and other sentencing factors, in this matter it is useful to consider some of the submissions and reach some conclusions on the general operation of the scheme.
Submissions of counsel
Counsel for the Director of Public Prosecutions (DPP) and the accused provided useful submissions as to the interpretation and application of the new provisions. As the scheme will be highly important and relevant to the sentencing of many offenders in Victoria, I also invited the Criminal Bar Association of Victoria (CBA) and Victoria Legal Aid (VLA) to provide submissions regarding the provisions. Both organisations provided submissions that have been of considerable assistance and the Court is very grateful for their contributions, provided in line with the best traditions of the Bar and the wider legal profession.
Purpose and validity of the standard sentencing scheme
The Explanatory Memorandum for the Amendment Act states:
The aim of the standard sentence scheme is to increase sentences for standard sentence offences and ensure that sentencing outcomes are more consistent with community expectations.[2]
[2]See also Attorney General Martin Pakula, Second Reading Speech for the Sentencing Amendment (Sentencing Standards) Bill 2017, 25 May 2017 (‘Second Reading Speech for the Sentencing Amendment Bill 2017’).
‘Community expectations’ are not defined or further elaborated in the Explanatory Memorandum or the Second Reading Speech for the Bill, though there is clearly an expressed intent that lengths of sentences will increase.
However, as VLA submitted, this intent does not manifest in the text of the legislation. There is no legislative provision that necessitates a higher sentence be imposed in any individual case, including in a case of murder. While sentences might rise as a consequence of courts considering the standard sentence as an additional sentencing factor, it is not an imperative to which I must have regard.
No party challenged the validity of the standard sentencing provisions. Having considered the submissions and legislation, I have detected no cause to conclude that the provisions enacted pursuant to Part 3 of the Amendment Act are invalid, or otherwise incapable of practical operation.[3]
[3]Cf. DPP v Walters (2015) 49 VR 356.
A ‘legislative guidepost’ and the ‘instinctive synthesis’ approach
Section 5B(3)(b) of the Act provides that the requirement in s 5B(2) to take the standard sentence into account when sentencing for a standard sentence offence, ‘is not intended to affect the approach to sentencing known as instinctive synthesis’. Thus, the Amendment Act specifically preserves the ‘instinctive synthesis’ approach.
All parties agreed instinctive synthesis was the correct approach to sentencing in a case where the standard sentencing provisions apply. Parties further submitted that the standard sentence for an offence should be viewed as a ‘legislative guidepost’ in the sentencing process. For the reasons that follow, I accept these submissions.[4]
[4]This approach is also confirmed by the Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017, 6; and Attorney General Martin Pakula, Second Reading Speech for the Sentencing Amendment Bill 2017, 1509.
The application of the instinctive synthesis and legislative guidepost principles to sentencing reflects the approach taken by the High Court in Muldrock v The Queen.[5] In that case, the High Court considered the operation of the NSW sentencing provisions that specified standard non-parole periods for designated offences.[6]
[5](2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’).
[6]Crimes (Sentencing Procedure) Act 1999 (NSW).
The NSW provisions are broadly comparable to the Victorian standard sentence provisions. One notable distinction is that the Victorian provisions specify a standard head sentence for designated offences, whilst the NSW scheme specifies a standard non-parole period. However, I do not find the differences between the schemes require a significantly distinct approach to be taken in respect of these two principles in the interpretation of the Victorian legislation.
In Muldrock, the High Court held that there is nothing in the NSW provisions that:
requires or permits the court to engage in a two-stage approach to the sentencing of offenders … commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. [7]
[7]Muldrock (2011) 244 CLR 120 [28]. In so finding, the High Court overruled the approach taken by the NSW Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168, in which that Court held that the starting point must be to consider whether there are reasons for not imposing the standard non-parole period.
The Court determined that, correctly interpreted, the NSW provisions did not disturb the common law requirement that the sentence be determined by a process of instinctive synthesis, considering the full range of possible sentencing factors.[8] The Court further held the standard non-parole period was a legislative guidepost as to the middle range of objective seriousness of an offence.[9] This was to be considered together with the other legislative guidepost of the maximum sentence.[10]
[8]Markarian v R (2005) 228 CLR 357; Muldrock (2011) 244 CLR 120 [27].
[9]Muldrock (2011) 244 CLR 120 [27].
[10]Ibid.
This approach is seemingly adopted in the Amendment Act, with the Explanatory Memorandum stating:
The standard sentence is not the starting point for sentencing, nor does it require two-stage sentencing. Rather, the standard sentence is intended to provide the courts with a legislative guidepost of objective offence seriousness that is compatible with the instinctive synthesis approach to sentencing, which has been affirmed as part of the common law in Victoria.[11]
[11]Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017, 6–7. See further Sentencing Advisory Council, Sentencing Guidance in Victoria Report, June 2016, 168 [7.64].
One of multiple sentencing factors
Section 5B(2)(a) of the Act provides that a court ‘must take the standard sentence into account as one of the factors relevant to sentencing’.
Read in accordance with its clear language, nothing in the provision demands that the standard sentence assumes a dominant role in the determination of the sentence imposed. This interpretation is confirmed when read in the context of all the factors to be taken into account under s 5(2) of the Act. It is clear that ss 5(2)(ab), 5B(2)(a), and 5B(3) of the Act operate so that the standard sentence for an offence is simply one of the relevant sentencing factors to which the Court must have regard.
This approach is confirmed by the Victorian Attorney-General in his Second Reading speech:
The standard sentence scheme introduces an additional factor for courts to take into account, in the form of a legislative guidepost… Courts will be required to consider the standard sentence alongside other relevant sentencing factors…[12]
[12]Attorney General Martin Pakula, Second Reading Speech for the Sentencing Amendment Bill 2017.
I agree with the submissions of all parties that the standard sentence is simply another factor to be taken into account in the overall assessment of the appropriate sentence. It is not to be treated as a determinative figure and should not interrupt the operation of the instinctive synthesis principle.[13]
[13]This approach is also confirmed in the Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017; and the Second Reading Speech for the Sentencing Amendment Bill 2017.
Statement of reasons
Pursuant to s 5B(4)(a) of the Act, a court that sentences an offender for a standard sentence offence must state the reasons for imposing that sentence.
Section 5B(5) of the Act further requires that as part of its reasons, the court must ‘refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence’ (emphasis added).
As noted, in considering similar provisions in NSW, the High Court concluded there was nothing in that legislation that ‘requires or permits the court to engage in a two-stage approach’ to sentencing. In respect to a provision requiring sentencing judges to state the reasons for arriving at the sentence imposed, and for increasing or reducing the standard non-parole period, the Court further observed it:
is not to be understood as suggesting either the need to attribute particular mathematical value to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending.[14]
[14]Muldrock (2011) 244 CLR 120 [29].
Rather, the High Court stated:
It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.[15]
[15]Ibid.
The High Court added that a full statement of reasons specifying any departure from the non-parole period ‘assists appellate review and in this way, promotes consistency in sentencing’ and ‘may also increase public awareness of the sentencing process’. [16]
[16]Ibid [30].
Sentencing factors
Section 5(1) of the Act sets out the purposes for which sentences may be imposed. Section 5(2) of the Act sets out a series of 12 factors that a court must have regard to in sentencing an offender.
The legislation does not state that any one factor must have dominance over another. It is well understood the weight and emphasis given to any one factor by a sentencing court will vary according to the facts and circumstances of each case.[17] This is a reflection of the fact that no one case nor one offender is the same.
[17]Wong v R (2001) 207 CLR 584, 612–613; Markarian v R (2005) 228 CLR 357, 374-375; Muldrock (2011) 244 CLR 120.
Maximum penalty
Pursuant to s 5(2)(a) of the Act, the first matter I must have regard to is the maximum penalty. For the offence of murder, this is life imprisonment.
Standard sentence
The standard sentence for murder, as provided by s 3(2)(b) of the Crimes Act 1958, is 25 years’ imprisonment.
Section 5A(1)(b) of the Act further provides the standard sentence is:
the sentence for the offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
For the standard sentence to act as a legislative guidepost in a particular case, it requires ‘content be given’ to its specification as the sentence for an offence in the ‘middle of the range of objective seriousness’.[18] This is done by taking into account the objective factors affecting the relative seriousness of the offence under consideration.
[18]See Muldrock (2011) 244 CLR 120 [27]
Identifying ‘objective factors’ affecting the relative seriousness of an offence
Section 5A(3) of the Act provides:
For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined―
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending.
In light of the clearly expressed language of s 5A(3) of the Act, when assessing the objective factors affecting the relative seriousness, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.
These provisions reflect the language used by the High Court in Muldrock, which concluded in respect of the NSW legislation that:
Meaningful content cannot be given to the [standard non-parole period] concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.[19]
[19]Ibid.
The direct adoption of the High Court’s language, strongly suggests that, in this respect, the Victorian standard sentence provisions should be interpreted consistently with the approach taken in Muldrock.
The assessment required by ss 5A(1)(b) and 5A(3) of the Act is directed at giving meaning to the standard sentence. It does not, as has been clearly established, require or permit the Court to engage in a ‘two-step approach’, involving an initial ’classification’ of the offending at issue by reference to whether it falls in the middle range of objective seriousness.
In Williams v R, the NSW Court of Appeal considered the approach taken by the sentencing judge in making a finding that ’the offence fell at just above the mid-range for such offences’.[20] The Court confirmed it is not necessary for a judge to ’classify’ the offending or assess whether it falls in the middle range of objective seriousness, but concluded Her Honour’s sentencing remarks did not reveal she had adopted a two-stage approach to sentencing as:
The sentencing judge did not commence with an assessment of whether the offence fell within the middle range of seriousness and then point to factors that justified a longer or shorter non-parole than had been prescribed (emphasis added).[21]
[20][2012] NSWCCA 172 [31].
[21]Ibid [32].
The Court further accepted that a sentencing judge should ‘continue to assess the objective seriousness of the offence’ and that the objective gravity of an offence is an essential element of the sentencing process.[22]
[22]Williams v R [2012] NSWCCA 172 [35], citing Muldrock (2011) 244 CLR 120 [27] and Zreika v R [2012] NSWCCA 44 [46].
It is to be observed that the ‘nature and gravity of the offence’ is a further sentencing factor pursuant to s 5(2)(c) of the Act. The assessment of the objective gravity of an offence is essential to the sentencing process in Victoria. This task will continue to be undertaken in non-standard sentence cases. To do so is to follow the guidance provided in Muldrock that the Court fully identify the ‘facts, matters and circumstances’ that bear upon the determination of the appropriate sentence.[23] However, the standard sentence scheme viewed as a whole indicates that when sentencing for a standard sentence offence, the court must follow the requirements of ss 5A(1)(b) and 5A(3) when making an assessment of the seriousness of the offence in issue.
[23]Muldrock (2011) 244 CLR 120 [29].
I proceed to discuss ss 5A(3)(a) and (b) of the Act, before considering all the factors impacting the seriousness of your offending.
Section 5A(3)(a) – ‘matters personal to a particular offender’
There has been significant judicial discussion in NSW about whether an offender’s personal circumstances may ever be relevant to an assessment of the objective gravity of the offence. In Biddle v R,[24] for instance, the NSW Court of Appeal noted some tension in the High Court’s reasoning in this regard, pointing to its consideration of the relevance of an offender’s cognitive impairment or mental illness and statement that:
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. … in sentencing a mentally retarded offender … the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[25]
[24][2017] NSWCCA 128 [66].
[25]Muldrock (2011) 244 CLR 120 [54].
Some authorities have interpreted Muldrock as meaning that an offender’s personal circumstances, particularly their mental state, mental health or cognitive status, will be relevant to this assessment where they are causally connected to commission of the offence.[26] This is because an offender’s mental condition at the time of the commission of the offence may be ‘a critical component of “moral culpability” which in turn affects the assessment of “objective seriousness”.’[27]
[26]See Biddle v R [2017] NSWCCA 128 [68]–[70]; Martin v R [2015] NSWCCA 6 [53]; McLaren v Regina [2012] NSWCCA 284 [29]; MDZ v R [2011] NSWCCA 243 [67]; Elturk v R [2014] NSWCCA 61 [33]–[35]; cf. Badans v R [2012] NSWCCA 97 [53].
[27]Yun v R [2017] NSWCCA 317 [47]; see also McLaren v Regina [2012] NSWCCA 284 [29].
The prosecution submits that this approach should not be adopted in Victoria and that the standard sentence legislation should be construed strictly according to its terms, namely that objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to an offender. However, the prosecution accepted that matters personal to an offender, which are causally connected to the commission of the offence, may be relevant within the overall assessment of the appropriate sentence by the process of instinctive synthesis reasoning.
In the circumstances of this case, it is unnecessary for me to resolve this issue. It was not submitted that any matters personal to you should affect the assessment of the objective seriousness of your offending.
Section 5A(3)(b) – ‘the nature of the offending’
In determining the objective factors affecting the relative seriousness of the offence, the meaning of the phrase the ‘nature of the offending’ is important. While often used, it appears little time has been given either by the High Court in Muldrock or in previous Victorian sentencing cases, to extrapolating the meaning of the expression.
In Williams v R,[28] Price J in obiter expressed the view ‘the nature of the offending’ should not be confined to the ‘ingredients of the crime’, but rather taken to mean ‘the fundamental qualities of the offence’. This characterisation has been adopted in later cases in NSW.[29]
[28][2012] NSWCCA 172 [42], Allsop P and Campbell J agreeing.
[29]See e.g. Yun v R [2017] NSWCCA 317 [40]; Subramaniam v R [2013] NSWCCA 159 [57]; R v Dean [2013] NSWSC 1027 [49].
In considering the impact that a finding of the existence of provocation might have on an assessment of the nature of the offending, Price J further observed:
where provocation is established such that it is a mitigating factor under s 21A(3)(c) Crimes (Sentencing Procedure) Act, it is a fundamental quality of the offending which may reduce its objective seriousness. It seems to me, that in those circumstances, there cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account.[30]
[30][2012] NSWCCA 172 [42].
I agree with this approach. Matters personal to a particular offender such as an offender’s age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending.
However, matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation, and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion can be relevant the assessment of the objective seriousness of the offence.
I acknowledge that Price J expressed uncertainty as to whether there would be any practical impact on the ultimate sentence if provocation were taken into account in assessing the objective seriousness of the offence, or as a matter personal to an offender, treated as a mitigating factor.[31]
[31]Ibid [43].
In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.
Despite these observations, the matter of your mental health was not submitted to be a matter affecting the assessment of the seriousness of your offending.
The seriousness of your offending
In respect to your offending, the prosecution submitted that the factors relevant to the assessment of objective seriousness included: the unprovoked nature of your attack against a kind and generous victim; your use of weapons, and the way in which they were used; the persistence of the attack; your failure to assist the victim, particularly after the first assault; your post-offence conduct in treating the victim’s body with contempt; the discarding of her body far from home in an isolated area with no regard for her dignity; your use of her credit cards in attempts to send money overseas and purchase items for your personal use; and the general vulnerability of the victim.
The significant aspects of your offending that go to an assessment of its nature and objective seriousness can be summarised as follows:
·You killed Ms Fraser with extreme violence, and she was defenceless;
·Your attack with a house brick was unexpected;
·You used four different weapons to kill her: the brick, bag, tape, and golf club;
·You inflicted major destructive injuries to the head, and then suffocated her;
·You intended to kill her, and the attack was persistent;
·You inflicted multiple blows;
·Before your last blow, you paused from your violent activity, which gave you the opportunity to pause and reflect on what you had done to that point. During the pause you could have sought help for your victim, but you did not;
·Having paused, you returned to make sure she was dead, covering her head with a bag and tightly winding it with duct-tape;
·You struck her again with the golf club while she was still alive;
·You put her body in the boot of her car, and drove her away to a remote location;
·At no stage did you make an effort to help her, and you treated her body with a complete lack of regard; and
·After you had killed her, you used her credit cards in an attempt to take money from her accounts to satisfy your own needs.
Your actions were without pity, and you took Mrs Fraser’s life in a deliberate way. There is little, if anything, in the nature or the fundamental qualities of your offending that reduces its objective seriousness.
The prosecution submitted that taking into account only the objective factors, your offending fell above the mid-range of seriousness. On your behalf, it was acknowledged that no submission could be advanced that you were subject to any impaired mental functioning. Your counsel conceded that it could not be asserted that that your mental condition is a relevant factor in determining the objective seriousness of the offending.
I accept the submissions of the prosecution. Taking into account all these factors, I assess your offending as a very serious example of the offence of murder, above the middle of the range of seriousness.
My assessment in this regard also addresses the requirement in s 5(2)(c) of the Act, that a court must have regard the nature and gravity of the offence.
Current sentencing practices
Pursuant to s 5(2)(b) of the Act, a court must have regard to current sentencing practices when sentencing an offender. However, pursuant to s 5B(2)(b) of the Act, when considering current sentencing practices for a standard sentence offence, a court may only consider sentences previously imposed where the relevant offence was subject to the standard sentence scheme.
The plain language of s 5B(2)(b) expresses Parliament’s clear intent to alter the scope of s 5(2)(b) when sentencing for a standard sentence offence. The Explanatory Memorandum to the Amending Act further indicates:
It is intended that … courts sentencing offenders for standard sentence offences should start from a ‘clean slate’ with respect to current sentencing practices…
The effect of new section 5B(2)(b) of the Sentencing Act 1991 is to prevent the courts from having regard to current sentencing practices for ‘old’ offences (offences alleged to have been committed prior to commencement of the standard sentence scheme). This will allow a new sentencing practice to be established for standard sentence offences that is consistent with community expectations.[32]
[32]Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017, 6.
All parties submitted that the intent of these provisions is that a sentencing court cannot have regard to past sentences for the offence before the court, and that current sentencing practices will develop prospectively as time passes.
This case is the first for which the scheme will apply to sentencing for the offence of murder. As such, there are no previous sentences to which I can have regard, and I have not had regard to past sentences in forming the sentence to be imposed.
This does not, however, preclude the sentencing court from having regard to sentencing principles established in previous cases. I have utilised and applied some such principles in my analysis below, particularly in respect to sentencing purposes.
Offender’s culpability and degree of responsibility
Pursuant to s 5(2)(d) of the Act, a court must have regard to an offender’s culpability and degree of responsibility.
The prosecution submitted your moral culpability is high. It was argued that your offending was motivated by greed, and resulted in a brutal and senseless attack over a debt of $3,800.
On your behalf, it was submitted that the offending was spontaneous and not premeditated.
In my opinion, it is not apt to describe the killing of Ms Fraser as being carried out with the simple motive of greed. Your motivations appear more complicated. Your actions are informed by your obsession with the woman overseas with whom you had apparently fallen in love with online, but had never met. Your offending is more properly understood as arising from the overwhelming obsession you had developed, along with the inability to repay the debt owed.
In the period leading up to the death of Ms Fraser, you were promising repayment, but in fact, your account history reveals you were unable to do so. You had given almost all of your money to the woman overseas. You were frustrated to the point where anger overwhelmed you regarding the pressure to repay your debts, in the context of your obsession. Despite this, your actions need to be assessed in light of your apparently normal mental condition at the time of offending. These factors may go some way to explain the violence of your outburst, but in no way excuse it.
Your counsel pointed out that you pleaded guilty at an early stage. This is clearly of significant utilitarian benefit to the criminal justice system, and importantly, to your victim’s family and friends. They were not forced to endure the ordeal of a contested criminal trial. It was also submitted that I should be satisfied that your guilty plea reflected an acceptance of responsibility and a willingness to facilitate the course of justice, and there is evidence of remorse for your conduct. Further, it is put that you assisted police, and that much of the narrative of the events necessarily relied on by the prosecution came from you. Much, though not all, of what you said to the police is accepted by the prosecution to be a truthful account of the events.
The prosecution accept that there was an early plea of guilty on your behalf. It is also accepted that you demonstrated some remorse in your police interview. However, the prosecution argued that these expressions were not entirely unqualified given some of your assertions to Dr Deacon, where you appeared to cast some degree of blame on Mrs Fraser for an initial attack on you. The prosecution urged me to be cautious about accepting your version of events in this regard.
In the police interview, some of your answers suggested Mrs Fraser physically confronted you before you attacked her. It is not suggested that whatever actions Ms Fraser took amounted to a form of provocation. I believe it unlikely that she took or threatened physical activity towards you, however, it is not necessary for me to make a finding about this. Even if Mrs Fraser did act in the way you have suggested, it would have never justified your violent response, and the ferocity of your attack.
However, I do accept the submission of your counsel that tempers may well have flared and you acted spontaneously. It appears that Mrs Fraser first became aware of the existence of your friend overseas in the days before you killed her. It also appears that she told you just before you acted violently that she was no longer interested in excuses and wanted her money back.
I accept you apologised during your interview, that you described Mrs Fraser as a kind and generous person, and at the conclusion, expressed sorrow and regret for your actions. I accept that regret is genuine. I also take into account that in the period after you killed Mrs Fraser and disposed of her body, you contemplated committing suicide, and appear to have taken some preliminary steps towards that end. I accept that your thoughts about this course reflected an acceptance by you that you had committed a terrible act.
In my opinion, taking into account all the circumstances, your moral culpability is high.
Sentencing purposes
General deterrence and denunciation
The prosecution submitted that general deterrence and denunciation are strong considerations in your case. This is unquestionably correct.
General deterrence is a primary factor in the passing of a sentence for the murder of another human being. There is nothing in your personal circumstances that suggests that I should not give full weight to this primary principle of sentencing.
Your sentence must reflect the need for strong public denunciation of your conduct, and contain a significant component directed towards general deterrence, to deter others who may be minded to commit such acts in the future.
Specific deterrence
The prosecution submitted that your criminal history reveals a propensity towards violence, and as such, your sentence should reflect a component designed to deter you from repeating like conduct in the future. It was argued that this aspect of your background, in part, informs the question of your future rehabilitation.
The defence submitted that your criminal background is limited. Further, it was submitted that you have shown remorse, and these features lessen the need to consider specific deterrence. As above, it is also submitted that your offending was spontaneous, and not premeditated. Further, that you assisted police, and much of the narrative of the events came from you. Importantly, you told police where her body could be located, and they were able to do so relatively soon after.
I accept that your offending was not premeditated or planned. The killing of Mrs Fraser was an act carried out in anger, and appears to have been spontaneous. This was in circumstances where your obsession had affected your ability to think clearly and calmly.
In all the circumstances, I regard your prospects of rehabilitation as reasonable. The need for specific deterrence will not be a significant component of the sentence I will impose.
Protection of the community
Because of your age, the sentence I impose will mean that many years will pass before your release from custody. You are now 58 years old, and will be a significantly older man on your release from custody. I take into account that your life after release may be limited. In all the circumstances of your background, the cooperation and remorse you have shown, and your present age, I do not regard protection of the community as representing a significant component in the sentence to be passed.
Conclusions
My task is to have regard to, and instinctively synthesise, all the sentencing factors, and consider these alongside the sentencing purposes. I do not begin by asking whether there are reasons for not imposing the standard 25 years sentence, and work up or down, as the case may be. Rather, my task is to use the relevant standard sentence and maximum penalty as guideposts. I have taken these matters, alongside all of the other factors relevant to this case, into account.
Your offending was extremely serious, and your actions were callous and brutal. You intended to kill Mrs Fraser, and you acted to ensure that happened. Your offending was extremely violent and unjustified. It involved a number of very forceful blows with two different weapons, with you ultimately covering her head with a bag and then binding it tightly with duct tape so that it was completely covered. You gave her no chance to breathe, nor survive.
Furthermore, your actions in disposing of Ms Fraser’s body in an open environment were despicable. There was a prospect that her remains may have been destroyed by the elements and never found. Additionally, shortly after you killed her, with her body still in the boot of her car, you attempted to use her credit cards to send money overseas to the woman you were obsessed with. Later, you succeeded in using her credit card to purchase some items. These actions aggravate the seriousness of your crime.
There are few aspects to mitigate the seriousness of your offending. It was a grave and brutal killing. You have, however, pleaded guilty and shown remorse. Those features will be reflected in an appropriate reduction in sentence, against the sentence you would have received had you contested the allegations.
The law requires you to receive punishment that is just in all the circumstances of the case. The Court must denounce the intentional taking of the life of Mrs Fraser and pass a sentence that reflects that strong denunciation on behalf of the community.[33] Your offending had great and ongoing impact on Mrs Fraser’s family and friends, as so clearly set out in the victim impact statements.
[33]R v Dupas [2004] VSC 281 [3].
Sentence
In all the circumstances the sentence that I will impose is a period of imprisonment for 30 years.
Section 11A of the Act requires me to fix a non-parole period of at least 70 per cent of the head sentence imposed upon you, unless it is in the interests of justice not to do so. In your case, there is nothing in the interests of justice that satisfies me that the non-parole period should be modified to be below 70 per cent of the figure of 30 years. The assessment of the length of an appropriate non-parole period will depend on the circumstances of each case. In your case, taking all the relevant factors into account, I have determined that the period you will serve before being eligible for parole will be 24 years.
Section 5B(5) statement
Having set out my reasons for imposing the sentence, s 5B(5) of the Act requires I must ‘refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence’.
In undertaking the task required by s 5B(5), I emphasise that I have considered the relevant standard sentence as one of the sentencing factors in my instinctive synthesis, but it has not assumed a dominant or determinative significance.
The sentence I impose is higher than the standard sentence for the offence of murder, which is 25 years’ imprisonment. Having identified and considered what I consider to be the relevant factors in assessing the sentence, including my assessment as to the very serious nature of the offending and the offender’s high degree of culpability, against his plea of guilty and display of remorse, I have formed the conclusion that this is appropriate.
Section 6AAA declaration
I have imposed upon you a less severe sentence than I otherwise would have imposed, because you have pleaded guilty to the offence. I further declare that but for your plea of guilty to the charge murder of murder I would have sentenced you to 35 years imprisonment with a non-parole period of 28 years.
PSD declaration
I declare that you have served 261 days of pre-sentence detention.
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