R v Copland
[2006] VSC 224
•23 June 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1541 of 2005
| THE QUEEN |
| v |
| DAVID COPLAND |
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JUDGE: | EAMES JA | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 29-30 May 2006 | |
DATE OF SENTENCE: | 23 June 2006 | |
CASE MAY BE CITED AS: | The Queen v Copland | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 224 | First Revision 26 June 2006 |
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Criminal law – Sentence – Murder – Plea of guilty – Victim the mother of prisoner’s partner – Prisoner subject to intervention order – Victim stabbed to death in daughter’s home – Prisoner suffering depressive symptoms – Prisoner 23 years’ old at time of offence – Drug and alcohol misuse – Disagreement as to diagnosis between psychiatrist and psychologist – Relevant prior convictions – Little remorse – Prisoner serving existing sentence with 11 months to serve – Sentenced to 17 years’ imprisonment with non-parole period of 13 years, cumulative on present sentence save for six months – Sentencing Act 1991, ss. 15(1), 16(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Hillman, S.C. | Solicitor for Public Prosecutions |
| For the Accused | Mr D. Dann | Robert Stary & Associates |
HIS HONOUR:
David Copland you have pleaded guilty to the murder of Janine Gray at Melton on 27 April 2005. Mrs Gray, who was aged 39 years at the time of her death, was the mother of Christie-Lea Danskin a young woman with whom you had been in a relationship for some three years and with whom you had two children.
At the time of the murder you were aged 23 years and Ms Danskin was aged 19 years. Your relationship, which had commenced when Ms Danskin was in her early teens, had been a tumultuous one, punctuated by violence and threatening behaviour on your part. Over a period of more than twelve months before her mother’s death Ms Danskin had made many complaints to police about your behaviour, and neighbours frequently heard arguments between you in the home in which Ms Danskin resided.
Although you are not being sentenced with respect to incidents that occurred between yourself and Ms Danskin prior to the death of Mrs Gray it is necessary to refer to some of those events to give context to events on the day of the murder. I recognise that you dispute or do not admit some of the earlier conduct which was attributed to you by Ms Danskin, but I am satisfied that this narrative provides a generally accurate picture of the build up to the murder, and the account is substantially supported by the evidence of witnesses other than Ms Danskin or by virtue of admissions contained in pleas made at court by you. Given that I use this as background material only, where there is dispute about the detail of events I will not make a finding of fact against you.
On 7 March 2005 an intervention order had been taken out against you in the Magistrates’ Court at Sunshine by Ms Danskin. That was to continue for twelve months and was the second such order that had been taken out against you. The previous one, also for twelve months, having apparently ceased at or about the time when the new order was made. The complaint which led to the order on that day alleged that on 3 March 2005 you had entered Ms Danskin’s residence through an open window and had abused, then head butted her, slapped her to the head, and had threatened to kill her. The intervention order made on 7 March 2005 prohibited you from assaulting, harassing, molesting, threatening or intimidating Ms Danskin or from approaching, telephoning or contacting her except in the company of a police officer or in order to participate in counselling or to exercise child contact, by agreement, or participate in mediation. The order prohibited you otherwise being within 200 metres of her residence.
You consented to the new intervention order but did not admit the allegations which were the subject of Ms Danskin’s complaint. In particular, you denied then, and continue to deny, her allegation that you had head butted her and slapped her.
Having consented to that order on 7 March 2005 you were again before a Magistrates’ Court on 15 March 2005 and pleaded guilty to a series of offences which had occurred much earlier, on 8 October 2004. There were two counts of threatening to inflict serious injury, a count of unlawful assault, two counts of destroying or damaging property and a count of breaching the terms and conditions of an intervention order. The victim of these offences had been Ms Danskin and they occurred when you were living in the same house. You admitted that an argument erupted between you, in which you threatened Christie-Lea with a 20 cm steak knife and then, using a larger butcher’s knife, started slashing a chair in the kitchen.
On 15 March 2005 you were sentenced to be released on a community-based order, for nine months, with a special condition that you undergo assessment and treatment for alcohol and drug addiction, submit to medical, psychological or psychiatric assessment and treatment, as directed, and undergo assessment for programs to reduce reoffending and to participate in such programs as directed. You murdered Janine Gray some five weeks later.
Following your appearance at court on 15 March 2005 you had taken initial steps to undertake an anger management program at Melton Civic Centre, and also a drug and alcohol program at St Albans. Apart from the initial attendance, the courses had not commenced at the time of the murder, through no fault of your own. In the meantime, confrontations with Ms Danskin continued to occur.
On 1 April 2005 Ms Danskin made a statement to police complaining about intimidating behaviour that had occurred that day, at her house. No charges followed.
On 11 April 2005 you attended at her house and she denied you entry. You then kicked down the door, entered the premises and threatened Jackie Roberts, a friend of Ms Danskin who shared the house with her. When you left you yelled that you would be back and if they called the police you would kill them both. Having left the premises, you rang Ms Danskin on her mobile phone and told her that if she rang the police you would go to jail for 25 years for murder, rather than for two years for breaching the intervention order. In her statement then made in support of the charges that arose out of events on 11 April 2005 Ms Danskin said: “During the incident with David I feared (for) my life and that of my daughter and my friend, Jackie’s. I have never seen David this mad and he really made me scared, as I think he will carry out his threats and kill me, Jackie and our baby.”
You were charged with breaching the intervention order and also with breaching the community-based order, and on 29 August 2005 – that is, while you were in custody awaiting trial for murder – you were sentenced to terms of imprisonment for those offences, as I will later discuss.
On Tuesday 26 April 2005, the day before the murder, Ms Danskin and her mother, Janine Gray, together with Jackie Roberts were shopping at Melton when they were confronted by you. You pushed Ms Danskin out of the store and she left the child and pram with her mother. You told her that if she did not come back to you, you would kill yourself. Ms Danskin rejoined the two others and you then confronted them near a taxi rank, whereupon Mrs Gray told you to leave her daughter alone. You told her to “shut the fuck up and mind your own business”. You then grabbed the child and took her to the front passenger seat of your car. You threatened Ms Danskin that if she went to her mother you would “get the baseball bat out”. You then heard a bystander telephoning the police and told Ms Danskin to get out of the car, saying that you would be back later to kill her.
That day police officers attended at Ms Danskin’s in response to her complaint about your conduct. While they were present you telephoned Ms Danskin. You then spoke to one of the police officers, who asked you about the intervention order, to which you responded “I don’t give a shit what you guys do, I don’t care about the order, I will just keep breaking it.” Upon being told that this would get you into trouble you said “I will just keep doing it; you fuckin’ coppers can’t stop me. I bet she is going on about the front door, I was worried about my kid. I’ll be on the front page of The Age, you watch.” Asked what that meant you said that the police could take it to mean whatever they wanted. You added “I don’t care what you fuckin’ coppers do”. You declined to tell them where you were and police efforts to locate you were unsuccessful.
Later that day, that is, the day preceding her mother’s death, Ms Danskin made a statement to police describing the events that had occurred that morning, and adding, prophetically, that she was seriously scared about what you might do, as you were out of control and did not care about the intervention order.
That Tuesday afternoon you returned to your home. You had been drinking, having consumed six cans of Jim Beam. Your parents were upset to learn that you had seen Ms Danskin that morning and an argument arose, whereupon your parents ordered you from the home. Your mother wanted you to end the relationship with Christie-Lea, given the problems that the relationship caused for both of you. Your mother rang D24 at 4.05pm while you were still at home. She was concerned, as she told the operator, that you had threatened to go to Ms Danskin’s house and “smash her head in”. In the course of that phone call you are heard in the background to say “I’ll just stab her in the fucking head”. Your mother said to police that that was what you had been like since you returned to the house, and that you had threatened to get all of them at Ms Danskin’s house. On that occasion your mother prevented you taking her car.
You left the house on foot that Tuesday afternoon and took the train to the city. You attended the Hanover Shelter, for food. You were waiting for your dole payment to be paid into your bank account. You later went to the casino. When your dole payment was paid into your bank account you withdrew it and gambled. You continued drinking late into the evening and early morning. The record of your bank transactions indicates that you could have had had little, if any, sleep that night.
You told police that on the morning of Wednesday 27 April, the day of the murder, you travelled home by train from the city. You said that you had purchased a few ecstasy tablets at the casino and you said you took one each hour from about 7.00 a.m. You then went to Sunshine, bought a Jim Beam “Black” then went to Derrimut Hotel where you had two beers, then to the bottle shop where you bought another four Jim Beams. You then walked home, where you had another confrontation with your parents. You took your mother’s car, without her permission, intending to drive to Ms Danskin’s house. You were armed with a knife, and I am satisfied that you then intended to kill one or more of the occupants of the house.
On the morning of Wednesday 27 April 2005, after leaving your parents’ home, you telephoned Ms Danskin and threatened to kill her. You phoned again at about mid-morning and a friend of Ms Danskin, Dean Korp, answered the phone, whereupon you said that you would kill him and rape Ms Danskin and her mother.
Your parents were extremely upset and concerned about your behaviour before you had departed their home. Your father drove to Ms Danskin’s house to see if you had travelled there, but they had not seen you. Your mother was so concerned that she rang D24. She told the operator that Melton police were looking for you and that you had just been home and had stolen her car. She said you were “as drunk as anything”, your level of drunkenness being, she said, “really, really bad”. She said you were so drunk you might kill someone while driving to Ms Danskin’s house.
At about 11.30 a.m. you parked near Ms Danskin’s house, but in a location where your car would not be seen, and entered the property over a back fence. You arrived at the house, threw a rock through the kitchen window, entered the house, and said, “I’m going to kill youse all”. Ms Danskin fled from the kitchen, as did Jackie Roberts, who hid in the bedroom closet. Mrs Gray, who was a very small person, under five foot tall, attempted to phone the police, but you grabbed her by the throat. She was struggling to get free and her daughter returned and threw a glass of water at you. You had in your hand a kitchen carving knife which you had brought with you in the car and which came from your parents’ home. Mrs Gray called to her daughter for help. You asked where Jackie Roberts was and said that she “wrecked it. She was supposed to go first.” You walked up to Mrs Gray and stabbed her in the right lower chest. Her fatal wound caused extensive damage. You then said that you were going to slit her throat, and you did so, although that injury, serious as it was, was not the fatal wound.
Ms Danskin asked to be allowed to help her mother, who had fallen to the floor. You refused, saying “No, I hope she dies.” You repeated “die, die, die.” You were laughing and you said “I have just cut her throat. I have killed the bitch.” You dialled the emergency telephone number on a mobile phone, handed the phone to Ms Danskin and she asked for an ambulance. That telephone call was tape recorded and I have listened to it. You can be heard making chilling comments in the background, as Ms Danskin desperately tried to obtain help to save her mother’s life.
As I have said, you are not being sentenced by me with respect to allegations of previous assaults, and you expressly deny some of the allegations. Nonetheless, through your counsel, you concede that the relationship was marred by incidents of threats and violence. In your mind, you were not the sole cause of the disharmony. You contend that Ms Danskin and her mother verbally abused and belittled you on occasions. I accept that there may have been some ambiguity in Ms Danskin’s attitude to you, at times. Despite the intervention order she sometimes permitted you to stay at her house: at one time you resided there for four months during the period of the order, and the second child was conceived during the course of the first intervention order, and was born in December 2004.
I accept, too, that you genuinely cared for your children. You had what you believed to be justified complaints about how they were being cared for. You told police, after the murder, that you had been upset by what you believed was cannabis use by Mrs Gray in the presence of or near the children, and you said you had reported such matters to DHS. I make no findings as to the truth of those allegations but I note that you made the same assertions on 26 April 2005 to Mr Araci, the Team Leader of the Housing Services section of the Shire of Melton.
Mr Araci had been assisting both you and Ms Danskin with accommodation difficulties over a considerable period, and was aware of the problems between you. He said that when he was dealing with you, you recognised that your relationship had deep problems, but you felt that you had to remain in the relationship because of the children. Mr Araci said that you wanted to engage in relationship counselling but Ms Danskin did not want to do so, no doubt recognising that a continuing relationship was impossible.
Your hostility to Mrs Gray was also complicated by the fact that you alleged that there had been some limited sexual relationship with her before you commenced your relationship with her daughter.
As her statement to police in November 2004 reflects, Mrs Gray was fiercely protective of her daughter, even though she had been the subject of threats by you, and she had reported you to police in the past. You regarded her as interfering with your attempts to get back with Ms Danskin, your unrealistic belief being that if everyone else stayed out of it the relationship would be saved.
I make all of these observations not to impugn the reputation of the deceased woman or Ms Danskin, both of whom seem to me to have been remarkably brave, but tragic victims of violence they believed inevitable yet did everything possible to prevent. It is, however, important in sentencing to try to understand the motivation of the offender, however wrong and misguided his reasoning may have been.
In your consultations with consultant psychiatrist, Dr Walton, and with clinical psychologist Dr Paul Grech, you sought to portray yourself as a man motivated by concern for your children’s well-being, who snapped under intolerable pressure. The truth, I consider, is that while I have no doubt you loved your children, your primary motivations were jealously and a desire for control over Ms Danskin, together with particular hostility towards Mrs Gray. As you could be heard saying, more than once, in the background to Ms Danskin’s 000 call, it was your view that the killing would not have happened had Ms Danskin taken you back. Dr Walton’s opinion was that you were “capable of making some expression of remorse but that is diluted by his own impression that he was victimised himself by the victim”.
You contended when interviewed that when the murder occurred you were very intoxicated and were also affected by the consumption of ecstasy tablets. You said that because of those intoxicants you were not thinking straight, and the death would not otherwise have happened. The analysis of forensic scientist, Dr Odell, conclusively demonstrates, however, that there were no traces of ecstasy or any other drug in your system when the offence occurred. It may well be that you thought you had purchased ecstasy tablets but, if so, you were fooled and that drug played no direct part in your offence, although as I will later discuss, there was an undoubted indirect connection between drugs and the offence. As to alcohol, the question of the extent of your intoxication is uncertain.
A blood sample taken four and a half hours after the killing returned a blood alcohol concentration of 0.018%. Dr Odell said it was not possible to calculate what your blood alcohol concentration would have been at the time of the killing but, based on his calculation of the rate of elimination of alcohol by way of metabolism, he concluded that the worst-case position would have produced a concentration of 0.108% at the time of the killing. He concluded that it was not possible to say whether alcohol would have had any effect on your behaviour at the time of the killing.
Having regard to your mother’s concern about the degree of your intoxication shortly prior to the killing, which led her to report you to police in a, sadly, futile attempt to have you arrested before you killed someone by your driving, I am inclined to accept that alcohol did play a part, but it is clear that it offers no excuse for the offence, and little by way of explanation.
Mr Dann submitted that when the offence occurred you were suffering from a serious mental illness not amounting to insanity but one that reduced your moral blameworthiness and moderated the need for your sentence to provide general and specific deterrence.
Dr Paul Grech, a clinical psychologist who gave evidence on your behalf, opined that when interviewed and tested in prison you were in the severe range of clinical depression and upon interviewing your parents he concluded that that you had been suffering disordered mood for some three years before the murder. That period roughly coincided with your relationship with Ms Danskin. He reported that you had a mood disorder, heightened by drinking and a high level of anger, which was based on your perception of being the victim of injustice and unfair treatment, and frustration of your attempts to achieve your goals. He commended your attendance at anger management courses in prison.
Dr Grech opined that you suffered a longstanding depressive disorder of considerable intensity, likely to have been precipitated by substance abuse since mid-teens and exacerbated by the relationship. He considered that your condition was treatable. He said that depression, of at least mild severity, had existed for a couple of years before the murder.
Dr Lester Walton diagnosed you as suffering a depressive disorder and poly-substance abuse, but he concluded that most of your depression had arisen after you were taken into custody. He gave the very cautious opinion that depression “may make some contribution to the eroding of the exercising of proper social judgment”.
Mr Hillman, who appeared to prosecute, submitted that there were unsatisfactory features of the evidence of Dr Grech, which should cause me to reject it outright.
The report which Dr Grech tendered made rather confusing reference to a person by another name. It emerged that whilst he had separately tested you for any evidence of psychological disorder, he had cut and pasted his report by using a report concerning another client, who had been similarly tested, and Dr Grech had failed not only to make the appropriate changes of name of the client but also to substitute your scores upon psychological testing for those of the other person. Those faults do not invalidate the opinions stated in the witness box, but they do not inspire confidence, particularly when the stated opinion is at odds with that of a very experienced forensic psychiatrist.
Dr Grech contended that his view was not really at odds with the diagnosis of Dr Walton. He said it was significant that Dr Walton diagnosed a depressive disorder in the context where you were in prison and were not then not exposed to the triggering factors such as drugs and alcohol, which would exacerbate clinical depression. Also, Dr Walton saw you at a time when you had been treated with anti-depressant medication. In effect, Dr Grech said that if you displayed what Dr Walton called a depressive disorder when he examined you in prison then the condition was likely to have existed, and been more severe prior to your entry into prison.
Having regard to the fact that Dr Grech’s opinion that you suffered significant depression at the time of the offence was not shared by Dr Walton (who thought that whilst you exhibited significant depression when received into custody most of your symptoms post-dated the murder), Mr Hillman submitted that I should prefer the opinion of Dr Walton. In the first place, he submitted that the diagnosis of depression was properly the province of a psychiatrist, not a psychologist: see R v Kucma[1] and R v D’Aloisio[2]. Secondly, Mr Hillman referred to the relative inexperience of Dr Grech, who was giving evidence for the first time in the Supreme Court, when compared to the experience of Dr Walton.
[1]R v Kucma [2005] 11 VR 472, at 482 [26], per Batt JA, cf. 488 [57] and fn.45, per Eames JA.
[2][2006] VSC 216.
Given the much greater forensic experience of Dr Walton I would be very slow to accept Dr Grech’s suggestion that Dr Walton had, in effect, overlooked the fact that at the time of examination in prison you had been deprived of triggering factors which exacerbated depression, and that you had also been the beneficiary of anti-depressant medication. Dr Walton did not give evidence, but in his report he expressly noted that the significant depression you had exhibited in custody had been treated by anti-depressant medication.
It seems clear that Dr Walton conducted a careful examination of you. He alone diagnosed post-traumatic stress disorder which had followed a motor vehicle accident in which you had been involved in the past. That condition was not diagnosed, at all, by Dr Grech and he could not explain why he had missed that. Dr Walton saw you on three occasions, in contrast to the one occasion for Dr Grech.
It seems to me that Dr Walton was in a very good position to make the assessment he did as to the onset and severity of symptoms of depression, and he had considerable forensic experience to draw on when making his assessment. I give his opinion weight, although he did not have the advantage that Dr Grech had of interviewing your parents, nor did he conduct the psychometric testing conducted by Dr Grech. In the circumstances, however, where their opinions differ, I prefer that of Dr Walton.
That is not to say that I was not assisted by Dr Grech’s evidence. The history he took of alcoholism within your family (which I note Dr Walton also obtained, but addressed in less detail in his report) and also his analysis of the relationship between alcohol and drug abuse and the onset and exacerbation of depression, were valuable. That evidence was not inconsistent with the report of Dr Walton. In the end, the difference between them is a matter of degree as to the severity and onset of depression. Dr Grech provided useful information about the impact of long-term use of ecstasy and its effect on impulse control, and also as to the delayed psychological depressive symptoms which frequently are experienced many days after ecstasy has last been used, even at a time when no trace of the drug would then be found in the user’s body.
There seems to be no dispute that you displayed some symptoms of depression at the time of the murder. Dr Walton regarded you as then being psychologically vulnerable, but primarily because of your likely post-traumatic stress disorder. It is clear that both experts regarded your poly-substance abuse as being a factor in your offending. I shall discuss your drug history later.
In the light of the disagreement between them I am not persuaded that Dr Grech is correct in concluding that you were suffering clinical depression in the severe range when the killing took place. I will accept, however, that you were suffering a depressive disorder which, while a product of personal choice as to drug abuse, in part also related to matters both of genetics and to the effect of your motor vehicle accident. Whilst of some relevance in assessing your moral culpability, those considerations are not so significant, however, as to make your case one where, on that account, general and specific deterrence should be moderated to any significant extent. The circumstances of the killing in this case, and your prior criminal history, necessitate that those sentencing factors be given emphasis.
I do not consider that you have shown any genuine remorse for the death of Mrs Gray. In my opinion, your statements to the effect that you wish you could take back time represent concern as to your predicament, rather than acknowledgment of the appalling nature of your crime. In your interview with Dr. Walton you continued to blame the deceased for your predicament, describing her as a conniving female and the cause of problems between yourself and Christie-Lea. Even allowing for the effect of alcohol and for the heightened and distorted emotions which no doubt accompanied the killing, your behaviour as Mrs Gray lay dying, as confirmed by the sound of your own voice in the background of the 000 emergency call made by Ms Danskin, is the most awful illustration of the hatred and complete lack of remorse which accompanied the death of Mrs Gray.
You are a young man. You have destroyed or damaged the lives of others, and you have damaged, but not destroyed, your own. The punishment you have brought upon your surviving victims will extend beyond that which this court will impose upon you.
The victim impact statement of Christie-Lea Danskin reflects the enormity of the trauma she suffered in having witnessed her mother’s terrible death. A report by a psychologist which accompanies her statement confirms that she has suffered significant psychological trauma and will continue to experience the symptoms of her trauma throughout her life. As a result of her disorders she was admitted to a psychiatric hospital for three weeks, as a result of which her children were looked after by your parents. The psychologist has diagnosed chronic post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder. She has been undergoing continuing counselling for her conditions. She suffers distress and impairment in all aspects of her day to day functioning.
A report of a clinical psychologist also accompanies the victim impact statement of Jackie Roberts. That discloses that she was admitted to hospital in December 2005 after attempting suicide and was suffering major depression and post-traumatic stress disorder. Although other traumas in her life have been relevant to her condition her presence at the time of the death of Mrs Gray is, as would be expected, a major factor. Since the death she had been unable to work. Among the consequences of your action she has been forced to cut herself off from Christie-Lea and the children, whom she loved, as contact with them is too painful to endure.
Finally, a victim impact statement of Mrs Gray’s husband, James Gray, describes the impact on his life and that of their son. In his insecurity, the child clung to Mr Gray to such an extent that he was unable to attend work and has resigned from his job.
In the list of your victims I would include your own parents. Your mother’s desperate attempts to bring to an end what she saw was a destructive relationship was, I have no doubt, inspired by sorely-tested love, and the efforts of your parents in looking after your unfortunate children is worthy of praise. The net cast by such a crime, in claiming victims, is wide indeed.
I have given a substantial discount in your sentence because of your plea of guilty. I do so although I do not consider that your plea of guilty is motivated by genuine remorse, but rather by self interest.
Mr Dann submitted that your plea of guilty ought not be regarded as being late. At committal your plea was reserved, but that was in order to have the question of mental impairment investigated. Much of the subsequent delay seems to have been attributed to previous counsel’s concern to obtain further reports. It seems to me that you might have been advised earlier that a plea of guilty was appropriate, but it is not your fault that that advice was delayed.
The plea of guilty was one made in recognition of the overwhelming evidence of your guilt. Nonetheless, you will gain a significant discount on sentence because whatever your motivation for pleading guilty there is a very significant public interest in encouraging such pleas. Much more important than the saving of the resources of the State which a guilty plea entails is the sparing of the trauma of the trial, not only for the witnesses but also for members of a jury. Ms Danskin, the person least likely to see any mitigatory factor in your case, and understandably so, was so appreciative of your plea of guilty that she rang you in prison to thank you for that mercy. That not only says a very great deal about her character, but it also confirms the appropriateness, wherever possible, of encouraging pleas of guilty by giving a discount in sentence, even when the crime is as terrible as this.
Mr Dann submitted that there was some evidence of remorse to be found in the police interviews when you asked to speak to Ms Danskin, apparently to apologise. At one point in the interview you may have been crying. I see little sign of remorse in those instances, however.
I do accept that, as your counsel submitted, you assisted the police and were generally frank in the interviews.
You were born in Scotland and came to Australia at age of four years. You were educated to year 10 and then commenced an apprenticeship as a roof tiler, which you did not complete. You were interested in sport both at school and later and while playing in a football competition you met Ms Danskin and her mother
You were in regular employment as an unqualified roof tiler for various employers and then with the assistance of your father you started your own business in roof restoration, running the business from the family home for more than two years, until you lost your licence. You worked in Swan Hill for nine months but suffered a motor vehicle accident in 2001 which caused no serious physical injuries but did cause post traumatic stress disorder. You obtained factory work in Melbourne, and work in Mildura. Despite your history of regular employment your drug use and instability seem to have taken their toll, and at the time of the offence you were on unemployment benefits.
You commenced use of cannabis at age 13 and by age of 16 were using it every day. By the age of 18 you were using up to an ounce a week. You also used ecstasy regularly, preferring it to alcohol because of the reduced risk of losing your licence. By the age of 16 you were using amphetamine and by age 21 or 22 you were not only using all of these drugs but also drinking heavily and your behaviour was becoming increasingly erratic and volatile. That placed the relationship under considerable stress. You admit that you said and behaved in ways that caused Ms Danskin and her mother to be fearful of you.
The first child with Ms Danskin was born in April 2003, the second in December 2004. Ms Danskin suffered some post natal depression after the birth of the first child. You had accommodation problems, at one time living with your parents.
You have a number of relevant prior convictions. On 8 August 2002 you were convicted on counts of property damage, unlawful assault, theft, and driving disqualified. You were sentenced to imprisonment for one month for driving disqualified, wholly suspended, and were fined on the other counts. You breached the suspended sentence but were not then ordered to serve the sentence. You could supply your counsel with no details concerning those offences. You were next convicted of theft on 8 April 2003, and fined. On 6 February 2004 you were convicted on two counts of theft, and counts of arson, driving while licence suspended and of failing to answer bail. You were sentenced to 18 months on the arson count and twelve months on the theft counts, to be served concurrently, but wholly suspended for 2 years. Those sentences related to a stolen car, which you torched. On 24 February 2004 you were convicted of driving while disqualified and of three dishonesty offences, and sentenced to an effective 2 months’ imprisonment, wholly suspended for 12 months. You breached that order, but the sentence was not put into effect. On 24 September 2004, again for driving disqualified, and also theft and dishonesty offences, and exceeding .05%, you were fined. You were next before the court on 15 March 2005 for the offences concerning Ms Danskin that I have earlier dealt with. You were released on a community based order for nine months.
That is a poor record which does not enhance your prospects of rehabilitation.
The fact that this killing occurred when an intervention order was in place is relevant to the question of general and specific deterrence and also to the question of the need for denunciation of your conduct.
You are not, strictly speaking, a youthful offender but your relative youth did play a role in this tragedy and your youth, coupled with your enthusiastic involvement in prison rehabilitation and personal development programs, suggests to me that notwithstanding your criminal history your prospects of rehabilitation should nonetheless be regarded as reasonable, provided you avoid drug and alcohol misuse.
Your family stands by you, notwithstanding the trauma of these events. Your parents currently are looking after the two children and remain on good terms with Ms Danskin.
As I earlier noted, you are currently serving a sentence imposed on 5 December 2005, upon breach of the suspended sentence imposed on 6 February 2004, with respect to offences of arson, theft, driving disqualified and failing to answer bail. The suspended sentence of 18 months’ imprisonment, for which there was no non-parole period fixed, was restored, and by virtue of s.15(1) of the Sentencing Act 1991, will be served first and then will be followed by the non-parole period that I will impose. The existing sentence will not expire until about 31 May 2007.
Mr Dann submitted that having regard to the principle of totality I should ensure that the sentence I will impose is not served wholly cumulatively upon the existing sentence. If I am to make an order of cumulation under s.16(1), then, he submitted, either I should reduce the sentence I will impose or else, pursuant to s.16(1), I should direct that there should be only partial cumulation of the new sentence upon that which remains to be served under the existing sentence. The first approach would produce an inappropriately low sentence for this offence, in my opinion.
I accept that the principle of totality does apply, in this respect, and also that I should have regard generally to the fact that the sentence being undergone since your detention for this murder (as was the case for one other, now completed, sentence) does not count as pre-sentence detention. The terms of the sentencing order I will make will allow a modest allowance for totality in those respects. It is appropriate, however, that the bulk of the sentence presently being served, which related to an entirely separate incident and to a breach of a merciful court order, should be served cumulatively on the sentence for murder, which as I have said, already provides a substantial discount by virtue of the matters I have addressed.
I declare that you have served 124 days imprisonment by way of pre-sentence detention, and I direct that that declaration be entered in the records of the court.
I make an order that pursuant to s.464ZFB(1) of the Crimes Act 1958, the forensic sample and related material obtained pursuant to your informed consent on 27 April 2005 be retained. This order is made by virtue of the seriousness of the offence, the relevance of your prior convictions and as being justified in the public interest. It is also made on the basis that you consent to the order.
I make an order under s.78(1) of the Confiscation Act 1997 for the disposal of property as set out in the schedule attached to the Disposal Order signed by me. I make that order upon being satisfied that the property therein identified was used in connection with the offence of murder.
I sentence you to seventeen years’ imprisonment and I order that you serve 13 years before being eligible for parole. Pursuant to s.16(1) of the Sentencing Act I direct that save for the period of six months of the sentence now imposed, which period of six months imprisonment shall be served concurrently with any uncompleted sentence you are presently serving, the whole of the sentence imposed by me be served cumulatively upon any uncompleted sentence you are presently serving.
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