R v Churchill, McGillivray & Whittaker
[2008] VSC 393
•2 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1739 of 2008
| THE QUEEN |
| v |
| MICHELLE ANNE CHURCHILL, AIDAN GEOFFREY McGILLIVRAY AND DARREN WHITTAKER |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2008 | |
DATE OF SENTENCE: | 2 October 2008 | |
CASE MAY BE CITED AS: | R v Churchill, McGillivray and Whittaker | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 393 | |
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CRIMINAL LAW – Sentence – Assault – Accused combining to assault victim to remove victim from friend’s house – Guilty plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert SC | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused Michelle Churchill | Mr S Zebrowski | Balmer & Associates Pty |
| For the Accused Aidan McGillivray | Mr S Johns | Balmer & Associates Pty |
| For the Accused Darren Whittaker | Mr J Hannebery | Chris McLennan & Co |
HIS HONOUR:
Michelle Anne Churchill, Aidan Geoffrey McGillivray and Darren Whittaker. You have each pleaded guilty to the assault of Stephen John Witham at Berwick on or about 13 August 2006.
At the time of the offence, you, Churchill, had been a long-standing friend of Jodie Watson. At that time Watson was living in a relationship with Michael Flaherty at a unit in Van Der Haar Avenue, Berwick. In about June 2006 Stephen Witham began living in the unit. Shortly after he commenced to live there, Jodie Watson complained to you about the conduct of Witham. She told you that Witham had assaulted her after she had intervened in a fight between Flaherty and Witham. She showed you marks on her neck which she said had been caused by Witham. She told you that there was frequent conflict between Witham and Flaherty, and that Witham was frightening Jodie’s young son Brock by threatening to leave him on the road outside while he was asleep. Watson told you, Churchill, that Witham was a very violent man, who she described as a “standover man”. Watson and Flaherty had asked Witham to leave, but he had refused.
On the night of the assault, Watson contacted you, Churchill, and Watson asked you to assist her and Flaherty to evict Witham. In your interview with the police, you said that you understood that Watson was requesting you to assist in the forceful removal of Witham from that unit.
Accordingly you, Churchill, then contacted your co-accused, Aidan McGillivray. You told McGillivray what had been conveyed to you by Watson, and you, McGillivray, agreed to assist. At that time you were staying at an address in Cranbourne with your co-accused Darren Whittaker and his girlfriend. You told Darren Whittaker what Churchill had asked you to do, and he also agreed to assist. I should interpolate that you, Whittaker, are a man of large physique.
It is clear from the evidence, contained in the statement of you, McGillivray, and from your interview with the police, that you understood that your role on that night was to subject Witham to a beating, so that he could be persuaded to leave the unit at which Watson and Flaherty were then residing. You, Whittaker and McGillivray, then walked to Churchill’s house. She repeated to both of you what she had told you, McGillivray on the telephone. In particular you, Churchill, told Whittaker and McGillivray that they needed to teach Witham a lesson and get him out of the house. The three of you then departed from Churchill’s house in her vehicle and drove to Narre Warren. While you were en route you, Churchill, spoke to Watson on the telephone to ascertain where to go. You then proceeded to Van Der Haar Avenue where you parked. While you were there police pulled up and spoke to you. They took your names and addresses and then left.
Shortly thereafter Flaherty and Watson came and spoke to you. You then drove to their unit. After you alighted from your vehicle, Flaherty told you that Witham had assaulted them, that he would not leave the house, and that he was making their lives miserable. He said that he had requested Witham to leave on a number of occasions and he continued to refuse to do so. Watson and Flaherty requested you to overpower Witham, so that they could give him a beating and then throw him out.
The three of you then followed Flaherty and Watson inside their unit. You, Churchill, went with Watson to the kitchen. You, McGillivray and Whittaker, followed Flaherty, who was with another man, Clinton McRae, to the door of Witham’s bedroom. Witham was then asleep. Flaherty and McRae entered the room. Flaherty yelled at Witham. As he did so, McRae took a swing at Witham with a weapon, which was either a bat or a pole. As Witham moved to avoid that blow, he was off balance. You, McGillivray, lunged at him and grabbed his arm. You then grappled with Witham, who fought back. As he struggled on the mattress you, Whittaker, grabbed Witham by the other arm. Between the two of you, you managed to pin Witham face down on the mattress. He was still struggling. As you held him there, Flaherty approached the bed with a dark cord or cable tie, and tied his two hands behind his back as if he were handcuffed.
At that stage you, McGillivray, thought that the matter was getting out of hand. Accordingly, you and Whittaker both decided to leave. You went to the kitchen, fetched Churchill, and the three of you departed.
Pausing there, it is the actions which I have just described by the three of you which constituted the assault of Witham, to which the three of you have each pleaded guilty. In fact, after you departed Flaherty wrapped Witham in a doona and placed him in the boot of Watson’s vehicle. Watson, Flaherty and McRae then drove to a property at Turton’s Creek. En route, Flaherty took possession of a shotgun and an ammunition belt. Flaherty drove a vehicle, with Witham still trussed in it, to a lonely and isolated bush location, where he murdered Witham by shooting him in the back of the head. Flaherty has pleaded guilty to, and been sentenced for, the murder of Witham.
On the evidence contained in the materials before me, I accept, without reservation, that none of the three of you had any inkling, on that date, that Witham would be murdered. I accept that each of the three of you understood that your role was to overpower Witham, so that he could be subjected to a beating, which would then enable him to be removed from the unit in which Flaherty and Watson were then residing. Although you, McGillivray, sensed that the matter had gone further than the original plan, when you observed Flaherty tie Witham up, I nonetheless accept that you did not have any expectation, or even any suspicion, that Flaherty intended to kill Witham.
It took some time for Witham’s death to be discovered and confirmed. Ultimately, Flaherty, the three of you, and others, were arrested over the circumstances of the evening which led to his death. You, McGillivray, and you, Churchill, when interviewed by the police, each made full and candid confessions of your role in the events of that evening. You confirmed your accounts of what had occurred that night in signed statements to the police. You, Whittaker, exercised your right to remain silent, and made a no comment record of interview.
The offence for which you each stand to be sentenced by me is a serious instance of the crime of assault. The three of you combined, with two others, to inflict, or be a party to, what you understood would be a severe beating on a man who was to be overpowered and rendered helpless, while he was in what should have been the safety of his bedroom. The attack on Witham was premeditated, and was launched at a time when he was at a particular disadvantage, as he was asleep when Flaherty, McRae and you, McGillivray and Whittaker, entered his bedroom. Further, when you departed the premises, you callously and irresponsibly left Witham to the mercy of McRae, Flaherty and Watson. You knew that they held him a real grievance. You knew that they were particularly angry at and disaffected with him. Although, as I have stated, you are not to be punished for what ultimately occurred to Witham, nonetheless it was well within your contemplation that he might suffer real harm at the hands of Flaherty, McRae and Watson after you left him helplessly at their mercy.
Further, it is utterly unacceptable that, no matter what the perceived cause or provocation, people in our community feel they have a right to combine and take the law into their own hands in such a violent and irresponsible way. In your interview you, McGillivray, explained why it was that you were moved to assist Churchill on that night. You told the police of your situation as a single father, whose daughter had been mentally scarred by seeing her mother brutally bashed by another man while she was at a young age. The account of events given to you by Churchill touched a protective chord within you, as you felt acutely affected by the plight of Watson’s young son Brock. Further, there was evidence before me that, as a child, you had been sexually assaulted. Nonetheless, you did not know Witham or Flaherty. It was none of your business to intervene in a dispute, on the say so of one party. Your actions were foolish, irresponsible and reprehensible.
Equally, you, Churchill, were a long-standing friend of Watson. I accept that you were moved to do what you did out of loyalty to her and out of your concern for Watson and her young son Brock. However, in the case of all three of you, you well knew that there were lawful avenues of redress available to Flaherty and Watson. While the realities of the situation may have led you not to have full confidence in those avenues, nonetheless you are each adult enough to know that they exist for the purpose of maintaining a just and civilised society. I repeat that it is simply unacceptable that people in your situation feel that they have any entitlement to take the law violently into their own hands and do what you did that night.
The gravity of the offence in this case requires me to give serious consideration to whether I should sentence each of you to a term of imprisonment. In order to determine whether that is an appropriate punishment for the three of you, it is necessary to identify whether there are particular mitigating circumstances which would warrant me adopting an alternative course.
In the case of each of the three of you, you have pleaded guilty. I accept that although there was some delay in making that plea, that delay was the product of the fact that there were other potential charges being considered against you. In that context, and in the context of what ultimately occurred, I accept the submission made on behalf of all three of you that your pleas of guilty were made at the first practically available opportunity. In a case such as this, where the victim’s family has been subjected to considerable trauma and distress, your pleas of guilty are important mitigating circumstances. They not only manifest a preparedness on your behalf to facilitate the course of justice, but, importantly, they have spared the victim’s family the distress of a contested trial in respect of your involvement in the tragic events of that night.
Further, in the case of you, Churchill and you, McGillivray, you both made candid and frank admissions to the police, both in your interviews, and in your signed statements. The prosecution accepts, and in my view correctly so, that your admissions were substantially frank and truthful. It stands to your credit that you both were prepared to cooperate in the manner in which you have. In my view, that cooperation also involves you each candidly acknowledging the wrongfulness and criminality of your actions.
Further, both you, McGillivray and you, Churchill come before me without any previous convictions. I was informed by your counsel that neither of you have any subsequent matters pending against you.
I turn to the matters which are personal to each of you. You, Churchill, are now 40 years of age. You have two sons. The eldest is 16 years of age, and your youngest child is 2½ years of age. You are a single parent who has assumed sole or substantial responsibility for the upbringing of your two children. I note that your eldest child has undertaken an apprenticeship in recent times. There are, I consider, two main mitigating circumstances attaching to your background and personal particulars. First, since you left school after Year 9, you have been in substantially regular employment, until the birth of your second child. After you left school you first worked with Safeway for five years, and then for almost a decade you worked for the Wagstaff Abattoir in Cranbourne. After you left that employment you undertook other work. Your last period of employment, before your youngest child was born, was with La Porchetta’s Restaurant in Cranbourne, by whom you were employed for 2½ years. Your work record demonstrates that you do have the ability to be a productive and useful member of the community.
The second mitigating circumstance in your favour is that since your early 20s you have suffered from Crohn’s disease. It seems that the medication prescribed for you has not been wholly successful in controlling that unfortunate condition. You have had a number of bouts of pain and bleeding. You have been hospitalised on seven occasions since 1992. Indeed, you last attended hospital on the weekend before your plea was made before me. Your debilitating condition is relevant for at least two reasons. Firstly, it is commendable that notwithstanding that condition you have lived a productive life both in your work and in raising your two children. Secondly, it would seem that a term of immediate imprisonment would bear more harshly on you because of your medical condition.
I turn then to the relevant circumstances relating to you, McGillivray. You are 27 years of age. You were educated until Year 9 level. You had difficulties as a student because you suffered from Attention Deficit Disorder. After you left school you commenced an apprenticeship as a vehicle body maker. Unfortunately you did not complete the apprenticeship, having undertaken three years of it. You then worked in a number of labouring positions, before you worked in a radiator shop for a couple of years.
It would seem that about five or six years before the offence, you had drifted into the use of illicit drugs. Your sister Kirstie, who gave evidence before me, told me that at first your family did not recognise the change in your lifestyle. However, after a couple of years she and your parents noted a change, for the worse, in your behaviour. You failed to live up to your commitments to your family and to your young child. You became irritable and moody, and were defensive when you were confronted by your family with your failure to fulfil your responsibilities. It was during that time that you became involved in the offending in this case. I have no doubt that your drug-fuelled lifestyle diminished your sense of responsibility and your sense of judgment. While that is not a mitigating circumstance, it does explain how a person such as yourself, with such a good family background, so readily agreed to become involved in the outrageous conduct which you committed on that night.
Fortunately, shortly before your arrest earlier this year, it seems that you had, of your own volition, recognised the problems that you were making for yourself from your lifestyle. Your sister Kirstie, who was an impressive witness, told me that you appeared to have become tired of the lifestyle which you had embraced. You started to become more regular in your habits, and more reliable in fulfilling your responsibilities to your young daughter. Your family had begun to comment on how you had begun to turn the corner. At about the same time you had commenced a relationship with your current girlfriend, Cherie. You have been spending more time with your daughter. In addition, you have been working in your girlfriend’s home renovations business, albeit on a part time basis. Your sister Kirstie told me that you are not of violent disposition.
In light of the evidence given by your sister, I am prepared to accept that, from shortly before the time of your arrest, you had embarked on, and have since then continued, the path to rehabilitation. Your lack of previous convictions leads me to have some confidence that your rehabilitation will continue to be successful. That confidence gains support also from the testimonials of your parents, and your partner, Cherie, which were tendered on your plea. To your credit you are a good father, particularly since you have abandoned the lifestyle which you had embraced during the time of your offending. It is a credit to you, and to your parents and siblings, that you have assumed responsibility for the upbringing of your young daughter, Sherae. I take all those matters into account in mitigation of your sentence.
The circumstances involving you, Darren Whittaker, are unfortunately somewhat more complex. You are 26 years of age. In March 2002, you were convicted at the County Court on two counts of culpable driving causing death, and two counts of causing serious injury negligently. As the result of an appeal by the Crown to the Court of Appeal, you ultimately were sentenced to a term of imprisonment of five years, with a minimum non-parole period of three years and six months. You were released on parole in August 2005, just one year before the events which bring you before me in this case. Thus, you committed the present offence while you were on parole. While your previous conviction is of an entirely different character to the events which bring you before me, nonetheless you do not come to this Court as a man with no previous convictions. Further, and more importantly, it is a matter of concern that you offended in this case just 12 months after your release, and while you were still on parole. Your all too ready agreement to be involved in the assault on Witham is a disturbing manifestation of your disregard for the law, and for the norms of a decent civilised society.
There are further complications in your case. In November 2006 – well before your arrest in this case – you were arrested and remanded in custody on a subsequent firearm possession charge. You remained in custody on that charge until January 2007. Ten months later, in November 2007, you were arrested, and remanded in custody, on a charge of intentionally causing serious injury. That arrest caused your bail to be revoked in respect of the firearms matter. On 3 March 2008, you were sentenced for the firearms matter at the Melbourne Magistrates’ Court to a term of imprisonment of 197 days. That sentence covered the entirety of your pre-sentence detention. You then remained in custody, from 3 March until 26 March 2008, on the charge of intentionally causing serious injury. Then, on 26 March, you were charged in relation to this matter, and you have remained in custody since. As the circumstances of this case preceded the circumstances of the intentionally causing serious injury charge, in effect, you have been in custody on the present charge of assault since 26 March 2008. Thus at the time of the plea you had been detained in prison for a period of approximately six months in respect of the charge which is before me.
All of the matters which I have detailed, relating to your terms of detention since August 2006, are of course matters which are not to be taken into account against you. They are, however, relevant because they preclude any sensible suggestion being made that since the events of August 2006 you have reformed or rehabilitated. Further, I was informed by your counsel that you will be pleading guilty to the charge of intentionally causing serious injury, which is outstanding against you. You will come before the Melbourne County Court in November in relation to that charge. All of those circumstances make the decision as to the appropriate disposition of you somewhat more complicated.
In your favour, before your conviction and incarceration for culpable driving, you did not have any previous convictions. In the three years since you had left school you had been involved in a number of labouring jobs. While, as I have remarked, it is a matter of concern that you so readily agreed to be involved in the assault that was to take place on Witham, as events transpired the amount of force used by you on that night was quite moderate. You certainly did not indulge in any gratuitous act of violence to Witham. I also take into account that you were not the instigator of the attack on Witham. Further, I take into account that you, for misguided reasons, felt that there was some cause for the assault to take place. However, I repeat that it is completely unacceptable for persons such as yourself to resort to violence in the way in which you did on that night.
It is unfortunate that a young man such as yourself has now spent so much time in custody since the age of 19 years. I do not know anything about the circumstances of the other matters which have brought you before the law subsequent to the events of 13 August 2006. However, the events of that night reveal to me that you are singularly lacking in good sense and good judgment. It is to be hoped that sooner rather than later you will come to your senses, and learn to think before you act, otherwise you may end up spending a substantial part of your life in trouble before the law.
In determining the appropriate sentence to be passed on each of you, I consider that I should act on the basis that you were each equally culpable in respect of the offence to which you have pleaded guilty. While the roles of each of you were somewhat different, nonetheless your culpability for the assault on Witham was, I consider, for all relevant purposes equal. Any difference in the sentence to be imposed on each of you arises from, first, the different mitigating circumstances which I have elicited from your personal circumstances, secondly, from the candour and cooperation of you, Churchill and McGillivray, and, thirdly, from the complicated position of you, Whittaker arising out of events which have occurred since this offence.
In determining the appropriate sentence in respect of each of you, it is necessary not only for me to take into account your personal circumstances, but also to pass a sentence which adequately reflects the seriousness of your offending, and which properly expresses the community’s condemnation of your conduct. Further, it is important that the sentence which I impose on you be of sufficient severity to deter other like-minded individuals from taking the law into their own hands, and acting violently as you did.
Bearing those matters in mind, I have given consideration to the various sentencing dispositions which were the subject of submission before me by your counsel. On your behalf, Churchill, your counsel, Mr Zebrowski submitted that I should enter a conviction against you, and adjourn the matter on your own undertaking. While I have given that sentencing option some consideration, particularly in light of your lack of previous convictions, on reflection I do not consider that such a sentence would properly express the community’s and the Court’s condemnation of your conduct, or act as a sufficient deterrent to other like-minded individuals. In the case of both you Churchill, and you Whittaker, I do not consider that the options of a community based order, a fine, or an intensive corrections order are open for practical purposes. Further, I am of the opinion that neither a community based order nor a fine would be adequate to cater for the gravity of your offending.
Ultimately, and after giving the matter some anxious consideration, I have come to the conclusion that there is no alternative other than to sentence each of you to a term of imprisonment. The only question which arises is whether, in the case of any of you, I should suspend that term of imprisonment. There are compelling reasons why I should sentence each of you to a term of immediate imprisonment, particularly in light of the serious features of your offending, and of the need for your sentence to serve as a specific deterrent to each of you, and as a general deterrent to others. However, in the case of you, Churchill, and you, McGillivray, I have been persuaded to wholly suspend the term of imprisonment which I shall pronounce upon you. I have reached that conclusion based on your lack of previous convictions, your pleas of guilty, your ready cooperation with the police, and the steps which both of you have taken to rehabilitate yourselves. In my view, it would be in the interests of the community if your terms of imprisonment were wholly suspended, in order that both of you be able to continue with your rehabilitation.
As I have already remarked, the case of you, Whittaker, is somewhat more complex. Theoretically, it would be possible to suspend the term of imprisonment which I am to pronounce upon you. However, for practical reasons it would seem to me that such a sentence would be ineffectual. In effect, if I were to suspend the term of imprisonment upon you, there would be no practical sanction for any breach of that suspended sentence, since the term of imprisonment which I shall impose will be no more than the period for which you have already been detained in respect of this offence. Furthermore, your circumstances are also different to those of McGillivray and Churchill, as you do not gain a credit for cooperation with the police, you have a previous conviction, and you are unable to demonstrate any progress to rehabilitation.
Accordingly I sentence each of you as follows:
(a)Michelle Anne Churchill. I sentence you to three months’ imprisonment. I order that the whole of that sentence be suspended for a period of 24 months.
(b)Aidan Geoffrey McGillivray. I also sentence you to three months’ imprisonment, the whole of which I suspend for a period of 24 months.
(c)Darren Whittaker. I sentence you to three months’ imprisonment. Because of the complicated nature of your current situation, I shall discuss with counsel the number of days I should declare as the period reckoned as already served under the sentence pursuant to s 18(4) of the Sentencing Act 1991.
In the case of each of you, Churchill and McGillivray, you should understand that you will not be required to spend any time in custody. However you must not commit any further offence which is punishable by imprisonment during the term of the suspension of your sentence. Should you do so you may be required to serve some or all of the suspended sentence.
As I have already observed, I have taken into account, as a mitigating factor, the circumstance that you have each pleaded guilty at what I regard as the earliest practical opportunity. Bearing in mind the qualifications I stated in my ruling in R v Flaherty (No 2)[1], pursuant to s 6AAA of the Sentencing Act1991, if you had not pleaded guilty, I would have sentenced you, Churchill and McGillivray, to a term of immediate (unsuspended) imprisonment of three months each, and you, Whittaker, to a term of imprisonment of four months.
[1][2008] VSC 270.
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