R v Chaffey
[2011] VSC 411
•5 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0156 of 2010
0074 of 2011
| THE QUEEN |
| v |
| ROBERT WILLIAM CHAFFEY |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2011 and 24 June 2011 | |
DATE OF SENTENCE: | 5 August 2011 | |
CASE MAY BE CITED AS: | R v Chaffey | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 411 | |
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CATCHWORDS: Pleas of guilty to murder and recklessly causing serious injury – Separate indictments – Murder arose out of brutal assault by kicking – Without motive – Senseless and spontaneous – Victim not known to offender – Recklessly cause serious injury – Drunken assault on girlfriend – Murder committed whilst on bail - Genuine remorse – Prior convictions – TES: 18 years imprisonment with a non parole period of 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan SC | Office of Public Prosecutions |
| For the Accused | Mr M. Croucher | Robert Stary Lawyers |
HER HONOUR:
Robert William Chaffey, in respect of indictment number Y03579795.1, you have pleaded guilty to one count of recklessly causing serious injury and in respect of indictment number C1007358.2, you have pleaded guilty to one count of murder. You have also admitted prior convictions.
The events the subject of the two indictments occurred in December 2009 and February 2010 respectively.
In December 2009, you were staying at a rooming house operated by the Salvation Army in Brunswick. You were living there with Jennifer Overall, whom you had met two to three months earlier. You were both alcoholics. On 5 December 2009, you and she were drinking together, during which time you argued with each other, the abuse flowing freely between you. Ms Overall called you “a cocksucker”. The drinking session continued into the early hours of the following day, and your bickering re-ignited and you became angry at Ms Overall’s name-calling, as a result of which you threw her onto the bed, straddled her and slapped her and head-butted her several times. After the assault, the two of you continued your drinking, and it was not until you left the room later in the morning that Ms Overall was able to leave and went to the local police station to report the assault.
As a result of your assault, Ms Overall suffered the following soft tissue injuries: bruising and swelling around both eyes and the right side of her jaw; bilateral sub-conjunctival haemorrhaging; tenderness over the left chest wall, the left shoulder, elbow and cervical spine; bruising of the right posterial thorax adjacent to ribs eight and nine of the shoulderblade; and a small laceration to the lower lip. Ms Overall was admitted to hospital overnight and was given pain medication and wore a cervical collar. Although she suffered no bony injuries, it was nonetheless a significant assault. Ms Overall was then in her late 30s. She was, as previously stated, an alcoholic. The Victim Impact Statement made by her speaks of her pain and suffering. As might be expected, it appears that she was a person of fragile disposition.
You were arrested later on the day that Ms Overall reported the matter, and you admitted your responsibility and expressed your remorse and concern for Ms Overall. You were remanded in custody and bailed on 12 February 2010. You went to stay at the Gatwick Hotel in St Kilda, and it was there that you brutally assaulted David Alexander Rodakis three days later, resulting in his death on 29 February 2010 at the Alfred Hospital.
These sentencing remarks should be read in conjunction with those of your co-offender, Neville John Morrison, who was sentenced by this Court on 1 July 2011.
You and Morrison met each other at the St Kilda Festival on 14 February 2010. You did not know each other previously. You had spent that day drinking together, and you were still drinking in the early hours of the morning of 15 February. You and Morrison were captured on CCTV footage arriving at the Gatwick Hotel and going to your room at approximately 3.43am. You were both seen to leave within minutes and return to the hotel at 4.42am, and Morrison had with him at this time a bladder of cask wine.
David Alexander Rodakis lived at the Gatwick Hotel. The CCTV footage shows him leaving his room at 5.08am and going out into the street. At 5.12am, you joined Mr Morrison at the entrance of the hotel, and the two of you stand there in the doorway, drinking. You then follow a woman into the hotel and speak to her. Mr Rodakis, at 5.16am, returns to the hotel and walks down the hallway to his room. You and Morrison immediately follow him and, as Mr Rodakis is standing at his doorway, Morrison pulls him back and throws him onto the floor. What then follows is a brutal and vicious attack. You begin the assault by kicking Mr Rodakis to the head or upper body, and you appear to administer a “rabbit chop” to the base of the neck. Morrison then pulls Mr Rodakis up off the floor and punches him, causing him to fall back onto the floor, and at this point you kick Mr Rodakis to the head and stomp on him about ten times, and then kick him twice. Mr Morrison is seen to punch Mr Rodakis, and then you kick and stomp on him in excess of 12 times. Mr Morrison then delivers another punch. At 5.19, you walk away, but then return to where Mr Morrison has remained and each of you kick Mr Rodakis to the head two or three more times. You deliver another kick, and Morrison starts stomping on Mr Rodakis’ head, and then you follow with approximately five more kicks. You then walk off and Mr Morrison follows you, but he returns to Mr Rodakis, and you also return and kick and stomp on Mr Rodakis again, and then both of you walk off.
At 5.20, the footage shows you and Morrison in the foyer of the hotel and then going outside for a couple of minutes. Towards the end of 5.22, you appear to go up to your room, but do not enter it. In the meantime, Morrison has returned to where Mr Rodakis lay and has continued to assault him. You are then seen to go downstairs and go out the front door, possibly looking for Mr Morrison. You return to the hotel and go to the corridor leading to Mr Rodakis’ room. Mr Morrison must have seen you at that point, because he appears to wave in your direction. The footage shows you walking into view and then turning around and going out of view, with Mr Morrison following you. Next, you are both seen coming into the foyer, and you and Morrison are clasping hands, and Morrison has his arm around you and appears to be patting you on the back. You are then seen to go to your room while Mr Morrison remains in the foyer, and a minute or so later, you return to Mr Morrison in the foyer. Mr Morrison appears to beckon to you to return to the corridor where Mr Rodakis lay, but instead you return to your room. While you were in your room, Mr Morrison returned to where Mr Rodakis lay and continued to assault him.
Mr Rodakis is not seen to move after the initial assault and did not move after you moved away at approximately 5.19. He was subsequently found by other residents. An ambulance was called, he was placed in an induced coma and taken to the Alfred Hospital. By reason of his injuries, he had been reduced to a vegetative state and there was no possibility of recovery. He died 13 days later. The post-mortem conducted by forensic pathologist Dr Melissa Baker, determined that the cause of death was pneumonia in the setting of severe blunt head injury, which was a common complication of a head injury with an altered conscious state. Dr Baker reported that Mr Rodakis had failed to show neurological improvement after sustaining the head injury, and it was concluded that he would remain in a persistent vegetative state.
The post-mortem examination confirmed the severity of Mr Rodakis’ head injuries, with examination of the brain revealing diffuse traumatic axonal injury, gliding contusions, area of haemorrhagic necrosis and sub-arachnoid and intra-ventricular haemorrhaging. Dr Baker reported that it is possible for significant blunt trauma to be delivered to the head without skull fractures, but with severe brain injury as was seen in Mr Rodakis. Other injuries confirmed at post-mortem include facial fractures, rib fractures and lumbar transverse process fractures. In addition, examination revealed sub-scapular haematoma of the liver. All these injuries were identified as due to blunt force trauma. There were no injuries typical of defensive injuries identified. Mr Rodakis’ body weighed 50 kilograms and measured approximately 169 centimetres in height, with a body mass index of 17.51. Thus, he may be said to have been of slight build.
Mr Rodakis was 66 years old when he died. For many years, he had been an alcoholic. The Gatwick Hotel was his home. He had lived there since December 2008. He appeared to be generous and docile by nature, and was no trouble to anyone. Neither you nor Mr Morrison had ever spoken to Mr Rodakis, although you may have seen him at the Gatwick Hotel in the three days that you were living there.
Victim Impact Statements made by his sister, Cheryl Venn, his brother, Ivan Rodakis, and his son, Ashley Rodakis, were tendered in evidence respectively as Exhibits “B”, “C”, and “D”. They speak of the sense of loss, sadness and distress, in particular that David Rodakis’ life was taken from him as a result of what they describe as a cruel attack in his own home, a place where he should have felt safest. Mr Rodakis’ son, Ashley, who had not seen his father since he was an infant, regretted that he now will never have the chance to get to know him. No sentence this Court can impose can restore to them their loved one, nor can it ameliorate the sad and tragic circumstances of his untimely and senseless death.
After the assault, you remained in your room at the Gatwick Hotel and, later that morning, you were arrested there. Initially, you were belligerent with the police, but later cooperated with them and participated in a record of interview. You told the police that you could not remember what had occurred because you were blind drunk, but you admitted that you were involved in an incident with another person. The Crown submitted, and I accept, that you acted with the intention to cause really serious injury to Mr Rodakis, but that your culpability is substantially less than that of Mr Morrison. You played no further part in the attack beyond the first engagement and, to that extent, your role was significantly less than that of your co-offender, but even at that point, you had participated in a savage assault upon a man whom you did not know and who did not pose any threat to you whatsoever. Your actions were entirely spontaneous and gratuitous, and it appears by reason of your comments to another resident at the Gatwick Hotel that you may have formed the drunken belief that Mr Rodakis was a paedophile. Such a belief was entirely and completely without foundation, and the product of your drunken stupidity.
You are now aged 46. You were born in New Zealand, one of 12 children. Your mother and a younger sister and older brother came to Australia when you were 12. In New Zealand, your father was sent to gaol for the sexual abuse of you and your identical twin brother when you were aged between six and ten. You have not seen your father since. As a result of your father’s incarceration, your mother could not cope and you and your twin were sent to live in an orphanage. Your twin died in a car accident when you were 12, and your mother took you from the orphanage after his death and came to Australia. It is said that you had an appalling childhood both in New Zealand and in Australia. Your parents did not send you to school, you were physically abused by your father and by a succession of your mother’s boyfriends once he had been removed from the family home.
When you came to Australia, you lived in Geelong, but it is said that you spent a lot of your time running away from home and living on the streets. When you were 13 or 14, you spent 12 months in a boys’ home in New South Wales, and your mother never came to visit you. As a teenager, you were taken under the wing of a woman who was working in a carnival, and this became your life. You travelled around the country with carnivals, working at various jobs, and you also worked on fishing boats in Tasmania, Queensland and South Australia.
Over the years, you formed a sporadic relationship with a woman, Sheree, whom you met in Mildura, and she is the mother of your three children, whom you regard as the best thing that has ever happened in your life.
You started drinking and using cannabis from an early age, and you have been a heavy drinker for most of your life. You have prior convictions in New South Wales, Queensland, Tasmania, South Australia and Victoria, which convictions reflect your itinerant life, alcohol and drug abuse. In Victoria in 1991, you were convicted of intentionally causing injury and assault in company, in 2002 of recklessly causing injury and assault police, and in 2005 of intentionally threatening serious injury and making threat to kill. By reason of the conviction in respect of the latter, you are to be sentenced as a serious violent offender.
You are resolved now to remain alcohol-free and while in custody have participated in a harm reduction program. You have also given up smoking. You have written a letter to the Court which was tendered in evidence as Exhibit “C2”. In that letter, you apologise to Mr Rodakis’ family and express your regret, remorse and sorrow for the part you played in Mr Rodakis’ death. I accept that you are remorseful and that that remorse is also reflected in your plea of guilty, entered on the second day of the trial. Your counsel, Mr Croucher, has submitted that such plea should result in a substantial discount and that your plea of guilty is all the more meritorious because you had a reasonably arguable defence based on complicity and causation. Your plea, in the face of a reasonably arguable defence does, in my view, speak eloquently of your remorse and does explain, in part, why your plea came at the time that it did, although I acknowledge, as your counsel submitted, that you had always been prepared to plead to the assault as depicted in the film.
A report by psychologist, Patrick Newton, and an addendum were tendered in evidence on your behalf. In it, he details your antecedents and personal circumstances, which I have recounted and accept. Mr Newton describes you as experiencing marked depressive symptoms and mood disturbances characteristic of bipolar disorder, and psychotic symptoms which he said were indicative of a schizo-affective disorder which requires ongoing psychiatric treatment, although it did not appear to be directly related to your offending. Your substance abuse will also, in his opinion, require a long-term structured program. Given the longstanding nature of your problems, he was of the opinion that, even with optimal treatment, he would remain guarded about your prospects for recovery. Your incarceration has benefited you to date in that it has enforced your abstinence and has provided you with work, medical care and a good standard of nutrition; factors which are likely to lead to an improvement in your mental state, in Mr Newton’s opinion, the trend towards institutionalisation and social detachment, which he regarded as evident in your personality, may well be exacerbated and entrenched by a lengthy period of imprisonment.
For these reasons, your counsel has submitted that a longer than normal period on parole is here appropriate and that, in particular, the non-parole period should not be increased beyond that which would otherwise be applicable by reason of the sentence which is to be imposed in respect of the offence of recklessly causing serious injury.
The maximum penalty for the crime of murder is life imprisonment. For the crime of recklessly causing serious injury, the maximum penalty is 15 years. The offence of murder which you have here committed is a serious example of the crime. This was a brutal, vicious attack, senseless, unprovoked and seemingly motiveless, on a man unknown to you, who constituted no threat to you, committed in the sanctuary of his own home. The assault was spontaneous in the sense that it had not been planned, and your judgment must have been clouded by your intoxication. You accept that you acted with the intention to cause really serious injury, and your counsel has submitted that this intention warrants a less severe sentence than if your intention had been to kill. However, there are no degrees of the crime of murder; it is constituted by the formation of either intent and, in the circumstances of this case, where your actions were kicking and stomping to the head and upper body with the intention of causing really serious injury, inflicted upon a supine, frail, older man, that your intention was to inflict really serious injury does not make the offence any less serious. Further, you committed this offence when you were on bail in respect of a serious assault upon your girlfriend at the time, which does aggravate your conduct.
In sentencing you in respect of both indictments, I take into account your pleas of guilty and that, by reason of your plea to the charge of murder, you may be said to have forgone a reasonably arguable defence which, as I stated previously, speaks eloquently of your remorse. I take into account that you are genuinely contrite and now regret your actions on this night. I take into account your dysfunctional and appalling childhood, and that you have striven to rise above the disadvantages and neglect of your early years. I accept that you have been hard working, yet your life has been blighted by your alcohol abuse, which has led to a deterioration in your psychological state and the manifestation of symptoms of schizo-affective and bipolar disorders. I take into account also your prior criminal history which, although it includes offences of violence, none, it seems, on the scale that are presently before the Court.
I take into account all of the matters which go in your favour, including that, by reason of your plea, you have saved the Rodakis family the ordeal of a trial and the community the cost of one and, by your plea to the count of recklessly causing serious injury to Ms Overall, you have obviated the need for her to give evidence which, given the emotional and psychological frailty which was apparent from her Victim Impact Statement, is to be given considerable weight. Further, you have saved the community the cost of that trial also and, by your pleas to both indictments, you have facilitated the course of justice.
Against these matters stands the nature and gravity of the offences you have committed. The assault on Ms Overall, which occurred when you were drunk and physically aggressive towards her, resulted in serious injuries to her. Three days after having been released on bail in respect of that assault, you were again drunk and physically aggressive when you assaulted Mr Rodakis, which assault was a vicious, senseless, brutal act and, as such, is a serious example of a serious crime, and is deserving of condign punishment. Any sentence imposed in respect of both offences must serve to punish you and act in denunciation of your conduct and, in respect of the count of murder, address parity of sentencing with that of your co-offender. Further, the sentences should seek to specifically deter you from re-offending and seek to deter others from offending in a like manner. The sentence in respect of the crime of murder must also address and give due regard to the sanctity of human life, taken from Mr Rodakis in such a brutal, vicious and senseless manner.
By reason of your conviction in respect of the making of a threat to kill, you are to be sentenced as a serious violent offender pursuant to s 6B of the Sentencing Act, and I propose to have entered into the records of the Court that you have been so sentenced. Accordingly, pursuant to s 6D of the Sentencing Act, as a sentence of imprisonment is justified, in determining the length of that sentence, I must and do have regard to the protection of the community from you as the principal purpose for which the sentence is imposed. Although I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances, as I propose to impose a sentence which, in my view, will serve to protect the community from you for a very long time, I do not consider it necessary to impose a sentence disproportionate to the gravity of the offences here committed.
Pursuant to s 6E of the Sentencing Act, because you are to be sentenced as a serious violent offender and pursuant to s 16(3) of the Sentencing Act, because the offence of murder was committed while you were on bail, the sentences of imprisonment must be served cumulatively unless otherwise directed. So as to address the principles of totality and parsimony, I propose to otherwise direct partial cumulation as between the sentences.
Accordingly, in respect of indictment number C1007358.2 for the crime of murder, you are convicted and sentenced to 17 years. In respect of indictment number Y03579795.1 for the crime of recklessly causing serious injury, you are convicted and sentenced to 3 years. I propose to order that one year of the sentence imposed in respect of indictment number Y03579795.1 be served cumulatively with the sentence imposed in respect of the crime of murder; that is, a head sentence of 18 years.
Although Mr Newton was cautious about your prospects for rehabilitation, I am satisfied that, given your age and insight into your offending conduct, contrition and remorse and provided you remain abstinent and address your drug and alcohol use, there are reasonable prospects for your rehabilitation. So as to enhance those prospects, I propose to order that you serve a period of 14 years before becoming eligible for parole. I declare that you have already served by way of pre-sentence detention a period of 605 days. I declare pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to 22 years imprisonment with a non parole period of 18 years.
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