R v Clifford
[2012] VSC 93
•22 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0018
| THE QUEEN |
| v |
| DAVID PATRICK CLIFFORD |
---
JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24, 25 November 2011, 16 February 2012 | |
DATE OF SENTENCE: | 22 March 2012 | |
CASE MAY BE CITED AS: | R v Clifford | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 93 | |
---
CRIMINAL LAW – Sentencing – Murder – Prolonged and brutal attack in drug-induced psychosis – Serious example of murder – Long history of drug abuse, including psychotic and violent behaviour while drug-affected – Prior criminal history – Offence committed in breach of conditions of bail and parole – Plea of guilty – Remorse – Prospects of rehabilitation – Protection prisoner – Currently serving sentences for other offences – Totality principle – Sentence of 23 years’ imprisonment – Non-parole period of 19 years
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC Mr J McWilliams | Solicitor for Public Prosecutions |
| For the Accused | Mr J McMahon Ms Z Broughton | C D Traill Lawyers |
HER HONOUR:
David Patrick Clifford, you have pleaded guilty to the murder of Elsa Janet Corp in South Melbourne on 1 February 2010.
On Saturday 30 January 2010, you met up and spent the evening with your friend Bill Kapkidis, and his girlfriend, Maria Laftsis. Ms Laftsis and Ms Corp were friends, and worked together as hairdressers. That evening, Ms Laftsis and Ms Corp spoke on the phone. You also spoke briefly with Ms Corp during that call. Afterwards, you asked Ms Laftsis for details about Ms Corp.
During their conversation, Ms Corp and Ms Laftsis discussed the possibility of meeting up the following evening, at the Ocean Blue Bar in Port Melbourne. When Ms Laftsis told you this, you suggested that you should all meet up with Ms Corp.
On 31 January, Ms Laftsis gave you Ms Corp’s mobile number. That evening, Ms Corp met up with her friend, Laura Taylor, and Ms Taylor’s boyfriend, Peter Soteriou, at the Ocean Blue Bar. Ms Corp arrived alone, just before 7.30 pm. Ms Corp told Ms Taylor that she had been receiving text messages from you that day, and you were coming to meet her at the bar later that evening.
Ms Corp then spoke with her friend, Sally-Anne Fitzgerald, on the phone. Ms Corp sounded anxious. She told Ms Fitzgerald that she had shared “a pill” with Ms Taylor, and was feeling unwell. Ms Fitzgerald told Ms Corp to call her back in twenty minutes, to let her know she was alright.
Before you arrived that evening, Ms Corp met a man at the bar, Joe Bucknell. They became friendly, and Ms Corp told Mr Bucknell that their meeting was poorly timed, as she was about to meet someone else for a “blind date”. She gave him her phone number, and suggested he call her later. In Mr Bucknell’s presence, Ms Corp received a number of calls on her mobile. She told Mr Bucknell that the calls were from the blind date she was meeting that night. After the last of those calls, Ms Corp told Mr Bucknell that her blind date had arrived and was outside the bar.
CCTV footage shows that you arrived alone at the Ocean Blue Bar a few minutes before 10.00 pm, and you and Ms Corp left the bar together at 10.07 pm.
Ms Corp called Ms Laftsis at 10.35 pm, and told her that she had met up with you, and the two of you were going to go to the Motel nightclub. Ms Laftsis said that she and Mr Kapkidis might come and join you two later, but it was unlikely.
At 10.43 pm, Ms Corp called Ms Taylor, who had recently arrived at the Motel nightclub. Ms Corp asked Ms Taylor where the Motel nightclub was, and said that she and you were planning on going there to meet Ms Taylor and her friends. In fact, you and Ms Corp did not attend the Motel nightclub.
The City Park Hotel is on Kings Way, in South Melbourne. CCTV footage from the hotel carpark shows you and Ms Corp arriving in your mother’s car at 11.04 pm that evening and parking. You were driving. The two of you walked from the carpark to the hotel reception. Although there is no dispute that you had both consumed illegal drugs prior to that time, the CCTV footage does not show either of you walking or behaving in a way that suggests that you were seriously affected by alcohol or drugs at that time.
At the reception, you spoke with the night manager, Davin Broadbent, and arranged a room for the night. He gave you a guest registration form, which you filled in with your full name, address and car registration details. You paid for the room with cash, and Mr Broadbent gave you the key for room 306. Mr Broadbent said that you both seemed “totally fine” to him.
Ms Corp made a short phone call to Ms Laftsis at 11.17 pm. Ms Corp told Ms Laftsis that she was in a hotel room with you, and invited Ms Laftsis and Mr Kapkidis to come and join you, and to bring alcohol when they came. Ms Corp also asked Ms Laftsis to bring some superglue, because you had removed the smoke detector from the ceiling of the hotel room, and were going to reaffix it.
Around 11.34 pm, Ms Corp called Ms Fitzgerald. Ms Fitzgerald asked Ms Corp if she was OK, and she said she was. Ms Fitzgerald asked whether Ms Corp had taken “fried rice” (meaning the drug “ice”), and Ms Corp said “yes”. Ms Corp indicated that the ice she had taken was really strong. The conversation continued for some time, and ended with Ms Fitzgerald saying that she would see Ms Corp the next day.
Ms Corp called Mr Bucknell at 11.51 pm. He was at the Motel nightclub, and asked whether Ms Corp was there. She said she wasn't, and couldn't speak because she was busy.
The final phone call made by Ms Corp was to Ms Laftsis, at 12.34 am on 1 February. Ms Laftsis told Ms Corp that she was not going to come to the hotel. There was some discussion regarding Ms Laftsis and Ms Corp meeting up the following day.
The final text message sent from Ms Corp’s mobile was at 1.02 am on 1 February. The message was sent to the phone of Ms Taylor’s boyfriend, Mr Soteriou, and asked “where are you guys?”. Ms Taylor texted back shortly after, saying they were leaving the Motel nightclub. There was no further contact made to or from Ms Corp’s mobile phone.
There were about 30 guests staying at the City Park Hotel that night, some of whom heard noises coming from within the hotel. They variously described the noises as “a bumping noise”, a “deep thumping noise”, “banging”, and “a loud noise like someone banging on the wall with a hammer, or like large rocks falling”. One guest reported hearing a woman groaning at one point. Someone else heard a male voice swearing. Different witnesses estimated the time they heard such noises as between about 12.30 and 2.30 am. Some heard noises for only a few minutes, others heard them intermittently for various periods of up to an hour.
At about 2.00 am, the night manager, Mr Broadbent, saw that the fire alarm control panel showed that the smoke detector in room 306 had been activated. He went to the room and knocked on the door. There was no response. He thought the smoke alarm might have been activated by guests smoking inside, with the windows closed. He went back to reception and reset the fire alarm control panel. About 20 minutes later, the same thing happened: the control panel showed that the room 306 smoke detector had been activated. Mr Broadbent went back to room 306 and knocked on the door. Again there was no response. He checked the area, but saw no sign of smoke, so went back to reception and reset the control panel again.
Between about 2.40 and 2.50 am, a man staying in an apartment directly opposite the hotel was woken by the sounds of someone yelling or screaming. He got up and looked out of a window, towards the hotel, and saw a man near the back of the hotel carpark. He saw the man carrying something that looked like a black bag. He saw the man run away from the carpark area and drop something from the bag, which looked like a towel or item of clothing. The man then turned and ran back towards the carpark, before disappearing from view. Shortly afterwards, the witness heard the sound of screeching car tyres. About 10 minutes later, he heard the sound of the hotel's main fire alarm.
CCTV footage from the hotel shows you leaving the fire escape stairwell on the ground floor, carrying a dark coloured bag. You can be seen walking through the carpark, where you drop a white coloured item on the ground. The footage shows you getting into your mother’s car, and leaving the carpark onto Kings Way, travelling towards the city.
At 2.53 am, the hotel’s main fire alarm was activated. After it was activated, Mr Broadbent went to the third floor and saw smoke in the hallway, coming from room 306. He opened the door and tried to see whether there was anyone inside, but was unable to do so due to the amount of smoke in the room. He attempted, unsuccessfully, to extinguish the fire with a fire extinguisher. Unable to put out the fire, he began to evacuate the other guests from the hotel.
The fire brigade arrived at the hotel within 4 minutes of being alerted by the main fire alarm. After extinguishing the fire in room 306, they found Ms Corp’s body on the bed, lying partially face down.
Just before 3.00 am, Moura Maaroui was on her way to work as a cleaner, when she was struck by a car travelling east on Collins Street, near the intersection of Swanston Street. The car was on the wrong side of the road, and had just gone through a red light. After knocking Ms Maaroui to the ground, the car continued east on Collins Street, before turning left through another red light, and continuing north.
At about 3.00 am, two British tourists, Mark Hodgkinson and Kevin Garside, were at the intersection of Bourke and Exhibition Streets. There was a car stopped at a red light. As the two men crossed the intersection, the traffic lights on Bourke Street changed to green, and the car accelerated away. The car continued to pick up speed, moved to the right and drove into Mr Hodgkinson, striking him when he was just beyond the tramlines in the centre of the road. He was carried on the bonnet of the car for about 30 to 40 metres, before falling off and hitting the road. The car continued on, and then turned left into Spring Street.
You were the driver of the car which hit these two pedestrians. In both instances, you drove directly at the pedestrians.
Fingerprints belonging to you and Ms Corp were found on various items within room 306. There was a large amount of blood-staining on the bedroom walls, as well as on some of the furnishings. The mirrors in the bathroom and bedroom had both been smashed. Clothing and items of jewellery were scattered throughout the bedroom and bathroom. A bloodied towel rail was found on the floor outside the bathroom door.
The television was lying on the floor, badly damaged. The air-conditioning unit had been pulled away from its wall mounting, and was hanging by its cables. The exterior cover of the air-conditioning unit was on the bed. Other items had been damaged, including a lamp.
There was a hole in the ceiling, where the smoke detector should have been. The smoke detector wires were broken and hanging down from the ceiling. Forensic examination revealed that the smoke detector was not in place on the ceiling during the fire.
The bed-head had been pulled off the wall, and was upside down on the bedroom floor. Also on the bedroom floor were a cigarette lighter, a blood-stained towel, a blood-stained steam iron and a second towel rail. The steam iron was missing its faceplate. Both the steam iron and towel rail had hair caught on them. The bed had been moved away from the wall, and was on a 45 degree angle in the middle of the room.
All of that damage done to, and in, the room occurred before the fire.
The bed had sustained fire damage to the mattress, base and bedding. The fire was started by the ignition of materials in the room, such as the bedding. There was no evidence of accelerant or any source of accidental combustion. The probable source of ignition was a cigarette lighter.
Broken shards of mirror glass were found in the hotel fire escape. A cigarette lighter and blood-stained hotel towel were found in the hotel carpark.
Ms Corp had no fire-related injuries. Around her neck was some electrical cord, which had come from one of the broken lamps. She had obvious injuries to her face, neck, arms, hands and her right shoulder.
A post-mortem examination found over 60 incisions, lacerations and abrasions on Ms Corp’s head and neck area. Many of them were very substantial in length and depth. They were consistent with a combination of blunt and sharp force trauma, the sharp force being consistent with broken shards of glass from the mirrors.
She also had multiple bruises and abrasions to her back, thorax, abdomen and all limbs, and a puncture wound to the back which had entered the right pleural cavity.
Ms Corp sustained multiple, bilateral rib fractures. Her spinal cord had been severed at the junction of the neck, due to a rotational force being applied. Her face and skull had also been severely fractured. Injuries to her neck, including the fracturing of the hyoid bone in her throat, were consistent with neck compression.
There was tearing damage to the liver, indicative of the application of significant compression force to the body. An injury observed to the torso is consistent with Ms Corp having been struck with a steam iron and towel rail.
Due to the absence of soot in Ms Corp’s airways, and the absence of carbon monoxide and hydrogen cyanide in her blood, the examiner concluded that Ms Corp was not alive at the time of the fire, or did not survive for any significant time after it started.
The lack of injuries to Ms Corp’s hands suggests that Ms Corp was dead, or at least unconscious or incapacitated, when at least some of the injuries were inflicted.
Neuropathology tests reveal changes in brain activity consistent with Ms Corp having remained alive for between 10 and 30 minutes after the infliction of some of the head injuries.
Toxicology analysis established that Ms Corp had a number of illegal drugs in her bloodstream, including ones commonly known as speed or ice, cocaine, and a designer drug which is a derivative of ecstasy.
The cause of Ms Corp’s death was a combination of the injuries to the head and neck, and significant associated blood loss.
Police attended your home at 9.48 am on 1 February. When they arrived, you were in the bathroom, washing your hands and feet. You were arrested, cautioned and informed of your rights. You said you had been attacked the previous night by a girl called Elsa, who you had met through friends, Bill and Maria.
The police found a black shoulder bag, under the bushes in a garden bed. You initially said the bag belonged to your girlfriend, but later said it belonged to Elsa. The bag contained a blood-stained hotel towel, and a blood-stained shirt. The shirt is the one you can been seen wearing on the hotel CCTV footage. The bag also contained some of Ms Corp’s identification documents. Also found in or near the garden bed were Ms Corp’s purse and further identification documents, and a broken and blood-stained piece of the smoke detector from room 306.
Police found a freshly-burned pile of debris in your backyard. The debris included a Nokia brand mobile battery, and what appeared to be a wristwatch face. Ms Corp’s wristwatch and mobile phone have never been located.
Later that day, police found your mother’s car. Underneath the car was the remote control for the air-conditioner from room 306. Inside the car were a number of items of property belonging to Ms Corp, some of which were blood-stained. There was extensive damage to the car bonnet and windscreen.
You were taken to the St Kilda Road police complex. You told the police that you needed medical attention for various injuries. You told the forensic medical officer who examined you that you had been assaulted with an iron and bathroom poles. You said you had cuts and lumps on your head, your neck felt like it had collapsed from blows, and you had sustained an infection through a cut on your hand from Ms Corp. The examination showed that, in fact, you had no injuries at all to your head or neck. You did have a small, linear, scratch abrasion, approximately 3 cm long, on your back. You also had bruising, small abrasions and superficial incisions on your hands, including on your knuckles. You had some faint, superficial bruising to your legs. No other injuries were seen.
You continued to complain of ill health, including chest pains. So an ambulance was called and attended the police complex. Paramedics took your history and examined you. There were no clinical findings consistent with your complaints.
Shortly thereafter, you were charged with various offences.
Before I consider your history and personal circumstances, I want to say something about the impact your actions have had on others.
At the time of her death, Ms Corp was 26 years old and living at home with her parents.
Victim impact statements have been provided by many members of Ms Corp’s family and close friends. The clear picture which emerges of Elsa Corp is that she was a vibrant, friendly, enthusiastic young woman, who loved her life and was full of hopes and plans for the future.
Ms Corp’s family and friends are all – quite understandably – struggling in different ways to cope with losing her, and with the terrible, brutal circumstances in which she died. Her death has left an enormous hole in all of their lives.
I turn to consider your background and personal circumstances.
You were born in June 1981, and were raised in the north-eastern suburbs of Melbourne, the eldest of four children. Your parents separated when you were about 7, due to domestic violence. You last saw your father when you were about 11, and he now lives interstate. You were very close to your grandparents. You remain close to your mother, and your three siblings are also still supportive of you.
You have a long history of drug and alcohol abuse. You started drinking when you were 12, and adopted a pattern of binge drinking twice a week, to the point where you would black out. You started abusing drugs when you were in secondary school. At 13, you started using cannabis. By the time you were 16, this had developed into a daily habit. You starting using amphetamines when you were 17, and ice the following year. By the time you left high school, you were using cannabis, ice, ecstasy, cocaine and LSD, typically at nightclubs and on weekends.
Dr Lester Walton, a psychiatrist who examined you on 15 June 2011, believes that your dependency on drugs is more psychological than physical.
As a consequence of your drug use, you have fallen in and out of favour with your family, and on several occasions have been asked to leave the family home.
Notwithstanding your drug and alcohol abuse, you finished year 12 and went on to complete two years of a three year university science course. Around that time, you were diagnosed with anxiety and depression, for which you were on medication for about a year.
You first started working after school hours, delivering pamphlets and selling confectionary door-to-door. From the age of 16, you worked in various customer service roles with a fast food chain, a supermarket, a department store, and a motor mechanic. When not in prison, you have generally been in regular employment.
For about four years, you were in what has been described as a destructive relationship with a woman, which ended in mid 2005, when you were arrested for drug trafficking. You are not currently in a relationship. You do not have children.
At the time of the murder, you were 28 years old and living at your mother’s house. You are now 30.
As far as your criminal history is concerned, you were disqualified without conviction for theft of a motor vehicle in 1998, when you were 18. You then lived a relatively law-abiding life until your first convictions in April 2007, which related primarily to drug offences committed in May 2005. From then until the time of the murder, you incurred 18 convictions from 5 separate mentions, about half of which related to possessing or trafficking drugs.
For the 7 offences for which you were sentenced on 4 April 2007, you received a total sentence of 3 years’ imprisonment, with a non-parole period of 15 months. 51 days of pre-sentence detention were noted.
In October 2007, you were convicted of harassing a witness (your former girlfriend), and breaching an intervention order which she had taken out against you. You received a short term of imprisonment, which was wholly suspended.
On 5 December 2007, you were convicted of 6 separate offences, for which you received a total sentence of 9 months’ imprisonment, which was wholly suspended.
On 13 May 2008, you were released on parole in relation to the April 2007 sentence.
One month later, on 13 June 2008, you violently assaulted two victims. One was a guest at a birthday party you were attending; you head-butted him because he refused to help you fight another guest. The other victim was the owner of the bar where the party was being held; when he went to ask you and your brother to leave, because of your drinking and aggressive behaviour, the two of you assaulted him and prevented him from leaving. You had yet to be dealt with for the June 2008 matters, when you murdered Ms Corp.
On 15 December 2009, you were convicted of entering a private place without lawful excuse and resisting police, offences which had occurred in June 2009. The circumstances of this offending were that you walked, uninvited, into the home of an elderly couple. You asked for help and said you needed their car. You refused to leave the house when the female victim became scared and asked you – several times – to go. You ran into a bedroom and started rummaging through drawers. When the police arrived, you fled the scene. When the police approached you, some time later, you resisted arrest and had to be restrained. At the police station, you became aggressive and uncooperative. A forensic medical officer assessed you as unfit to be interviewed, due to your aggressive behaviour and level of drug intoxication.
The total sentence imposed on you on 15 December 2009, for the June 2009 offending, was 4 months’ imprisonment. Apparently, due to the amount of pre-sentence detention which was treated as already served under that sentence, you were released from prison in December 2009.
After you were released from prison, you relapsed into drug abuse, particularly smoking ice. You were unsuccessful in your attempts to get work as a plasterer at this time, a matter which may have contributed to your increased drug usage.
This means that when you murdered Ms Corp in February 2010, you did so in breach of the conditions of your parole (from the April 2007 sentence) and your bail (for the June 2008 offences).
You were sentenced on 30 July 2010, in respect of the June 2008 offences. For common law assault, false imprisonment and intentionally causing injury, you were initially sentenced to a total sentence of 33 months’ imprisonment, with a non-parole period of 21 months. On 30 June 2011, that sentence was reduced on appeal[1] to a total sentence of 24 months’ imprisonment, with a non-parole period of 12 months. There was no pre-sentence detention for that sentence.
[1]Largely due to arguments relating to parity with your brother’s sentence.
The June 2009 offending was not the only time (before the murder) when you have become aggressive whilst using illegal drugs.
On 30 December 2006, you arrived home drug-affected, and argued with your mother and brothers. You threatened and assaulted family members, and damaged property, using weapons. After you locked yourself inside with your elderly grandmother, the police were called. You refused to come out, and threatened to physically confront police. Police records describe you as acting irrationally and drug-affected.
There was a further incident involving your family on 12 December 2008. Once again, you arrived home drug-affected and became belligerent towards family members. You accused them of drugging you and planning to kill you. You started smashing property, including your laptop computer, and throwing things around the house. You became irrational and delusional. Your family members eventually restrained you, by tying you with rope to the back fence. When the police arrived, you were agitated and aggressive towards them. At first you claimed that your family were trying to kill you, then changed that to the police and paramedics were trying to kill you. You threatened violence towards those around you. You struggled with the police and had to be physically restrained, and later sedated, due to your erratic and aggressive behaviour. You were taken to hospital, for psychiatric assessment. There is no dispute that you were in a drug-induced psychosis on this occasion.
You gave the hospital a history of six weeks of increased aggression, behavioural changes and psychotic symptoms (including paranoia). You reported that you had no such symptoms when not using amphetamines.
It seems that no criminal charges arose from these two incidents of drug-fuelled violence and aggression, due to your family’s attitude.
Over the years, you have made a few (obviously unsuccessful) attempts to overcome your drug abuse problems, through counselling. But, it does not seem that you have shown any great motivation to address these issues in the past.
Since the murder, you have actively engaged in educational opportunities within prison. In particular, you have participated in alcohol and drug programmes and individual counselling; this is an encouraging start to dealing with your longstanding drug abuse problems.
Given your normal intelligence, your steady work history, and the support you have from family, friends and a former employer, you do have some prospects of rehabilitation, if you are able to overcome your drug abuse. But, I note that previous sentencing judges have given you opportunities to deal with your drug problems, opportunities which you have not made the most of.
You have a limited memory of the events leading up to the murder of Ms Corp. You recall that you had both taken drugs, that there was a disagreement between the two of you, and that an iron and towel rail were involved in some way, but you are not able to give an account of the events which led to Ms Corp’s death.
I accept that the murder was not premeditated. But this is a serious example of murder, for a number of reasons.
Your attack upon Ms Corp must have been a severe and extended one. The noises heard by witnesses, the nature and extent of the horrific injuries inflicted upon Ms Corp, and the state of disarray of the hotel room, all indicate that it was a prolonged, vicious attack, going on for perhaps an hour or so. Ms Corp was a petite, young woman, who was 160 cm tall and weighed 50 kgs. You were about 20 cm taller than her and substantially heavier. She would have had no hope of defending herself against your attack.
It is an agreed fact, for the purposes of your plea, that you had an intention to kill Ms Corp, not merely an intention to cause her really serious injury.
There seems to be no motive for your terrible crime. You had only met Ms Corp that evening, in a social context, and there was nothing in her behaviour that night which might have provoked you to do what you did. In particular, the forensic evidence does not support your earlier assertions that she had attacked you.
You had been using amphetamines over a number of days leading up to the murder. You told Dr Walton that for about 3 days before the murder you had not slept, and were aware that you were becoming increasingly anxious, paranoid and confused. You also told him that, at the hotel, you and Ms Corp consumed a designer drug which is colloquially known as “meow”. The exact nature and quantity of drugs consumed by you prior to the murder are unknown.
There is no dispute that you attacked Ms Corp because you became violent and aggressive after taking illegal drugs. The disinhibiting effects of taking stimulants, such as the ones you had taken, are not disputed by either side. You were also well aware, from past experience, that you were prone to behaving aggressively and violently after taking such drugs. Because of your history, it is not suggested that your drug-affected state is mitigatory, or anything other than an aggravating feature. But the defence argues that, if your state was a psychotic one, that should reduce the extent of such aggravation.
Relying on the evidence of Dr Walton, your counsel argues that you were not simply drug-affected, but were acting in a drug-induced psychosis. Relying on the evidence of another psychiatrist, Dr Yvonne Skinner, the prosecution disputes that you were in a psychotic state.
After you killed Ms Corp, you did a number of things, including: setting fire to the room; removing her handbag; fleeing from the scene and hitting two pedestrians; hiding your damaged car some distance away from home; hiding or attempting to burn some of her possessions; hiding your blood-stained shirt and a blood-stained hotel towel; lying about who owned the handbag; and alleging that you had been attacked by Ms Corp. Whilst Dr Skinner conceded that some of that behaviour might be consistent with a person acting in a psychotic state, she believed that it was purposeful and directed towards protecting yourself. Dr Walton, on the other hand, believed that the behaviour was consistent with you being in a paranoid, delusional state, particularly when regard was also had to what you had done to the various electrical items at the hotel and your previous paranoid ideas about electrical items.
In sentencing you, I have proceeded on the basis that you were acting in a drug-induced psychosis when you murdered Ms Corp. But, I have still treated that as a serious aggravating factor, given that you knew full well that you were prone to paranoia and other psychotic symptoms – and to behaving aggressively and violently – when drug-affected.
As mentioned earlier, you murdered Ms Corp in breach of the conditions of both your parole and your bail. That is a further aggravating factor.
There are a number of other matters relevant to sentence.
In respect of these events, you were originally charged with murder, arson and two counts of reckless conduct endangering life. On 25 October 2011, shortly before the empanelment of the jury, you offered to pleaded guilty to murder, and the prosecution agreed to drop the remaining charges.[2]
[2]I have mentioned the facts surrounding the three dropped charges, as they are relevant to the question of whether your actions in murdering Ms Corp were psychotic or not. I am not sentencing you for those three offences, and have not treated them as aggravating the murder.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Furthermore, Ms Corp’s family and friends and other witnesses have been relieved of the significant trauma of a trial.
You have also expressed remorse for what you have done; there is evidence sufficient to persuade me that your remorse is genuine.
After the completion of the plea hearing, you were moved out of the mainstream prison population, as a result of concerns about your safety following extensive media coverage of this case. Your lawyers asked that I not pronounce sentence, until after the question of your prisoner status could be further investigated. Accordingly, I deferred announcing my decision, to enable the lawyers for both sides to investigate the matter, and to file affidavits and written submissions.
A substantial proportion of Victorian prisoners are in protective custody of varying types, and for various reasons. The circumstances of protective custody can differ significantly. Where a prisoner is being held in protective custody, that is a factor relevant to sentence. But, the extent to which it is to be taken into account depends on the particular circumstances of the custody. And in assessing the extent to which the particular protective custody is more onerous than mainstream custody, sentencing courts are not required to go through the evidence with a fine toothcomb; as with most other matters relevant to sentence, it is a matter of impression.
You have been in Port Phillip Prison since February 2010. On 25 November 2011, due to the concerns about your safety, you were moved from a mainstream unit, into solitary confinement in a management unit, for about one week. After a meeting between you and prison staff on 1 December 2011, you were moved into a protection unit called Alexander North. It is neither possible, nor necessary, for me to resolve the factual dispute as to whether you agreed or disagreed with the decision to move you into protective custody. There is no dispute that you have now been identified as a high profile prisoner, and are likely to remain a protection prisoner for the foreseeable future, due to the amount of publicity your case has received, and the nature of threats made against you by other prisoners.
Prior to the plea hearing, you had undertaken numerous educational courses, and had used the prison gym on a daily basis. Since moving to Alexander North, you have had more limited access to work and appropriate educational opportunities, and to the library and gym. You have also mixed with fewer prisoners than when you were in a mainstream unit.
On the current evidence, it is likely that you will remain a maximum security protection prisoner for many years to come. And, in general terms, I accept that your term of imprisonment as a protection prisoner is likely to be harsher or more onerous than if you were a mainstream prisoner. But, it is not possible for the court to come to any conclusions as to whether and, if so, when, you may be reclassified. Nor is it possible to evaluate the precise extent of such harshness, given that it is not known where you will be placed after sentencing, or under what specific conditions.
I have proceeded on the basis that, in determining an appropriate sentence, the court should give “some, albeit limited, weight”[3] to your changed circumstances.
[3]To adopt your own counsel’s terminology.
This was an horrific crime, which requires denunciation by the court, and for which there should be just punishment. There is also a need for both general and specific deterrence in this case.
In sentencing you for the murder of Ms Corp, I am also required to have regard to the legal principle of totality. That means that I must have regard to the other sentences which you are currently serving – which have been discussed earlier in these reasons – to ensure that the total period of imprisonment which you are to serve for all offences is not “crushing”. I am also required to apply the totality principle on the assumption that you will be required to serve the full term of any unexpired parole.
It is common ground that the non-parole periods under your previous sentences have expired; that is to say, I am not required to set a new, single, non-parole period in respect of all sentences you are to serve.
The maximum penalty for murder is life imprisonment. However, the prosecution accepts that although this is a serious case, it does not call for a life sentence.
Balancing as best I can the competing considerations laid down in the Sentencing Act1991, and having regard to all the matters I have just discussed, for the murder of Elsa Corp I sentence you to 23 years’ imprisonment. I fix a period of 19 years from today, as the period you must serve before becoming eligible for parole.
In setting the non-parole period, I have chosen a period which should allow you an adequate opportunity to undertake drug counselling, and to learn to live drug-free, under the supervision of the Adult Parole Board.
I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to 27 years’ imprisonment, with a minimum non-parole period of 22 years.
Further, I declare that the period to be reckoned as already served under this sentence is 9 days, up to today. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
---
2
0
0