R v Culleton
[2000] VSC 559
•27 November 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1428 of 2000
| THE QUEEN |
| v. |
| JOHN CULLETON |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 27 NOVEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 559 | |
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CATCHWORDS: Guilty plea to manslaughter – Social Welfare (Reduction of Imprisonment) Regulations 1965 – R. v. Yates [1985] V.R. 41.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. N. Parkinson | Office of Public Prosecutions |
| For the Accused | Mr. P. D'Arcy | Galbally & O'Bryan |
HIS HONOUR:
John Culleton, having been initially presented before the Court charged with her murder, you have pleaded guilty to the manslaughter at Geelong West in the State of Victoria on or about 6 July 1973 of your wife, Joyce Grace Culleton.
The Crown accepted your plea on the basis that you had occasioned her death through the performance of an unlawful and dangerous act as that concept is understood by the law. It is on that foundation, which I indicate I regard as reasonable in the circumstances, and particularly in view of the available evidence, that I must now impose sentence upon you.
You have admitted the commission of six offences prior to this crime arising from four court appearances between 17 March 1952 and 4 November 1971. They relate to convictions for demanding money with menaces, various offences of dishonesty and some other relatively minor matters. You have appeared before an Australian court on one of those occasions, whilst the other court appearances occurred in the United Kingdom, where you spent most of your youth. Save that they are indicative of some underlying dishonesty and a preparedness to disregard the rights of others, these offences do not, in my opinion, assume significance in the present context. Your counsel has informed me of later court appearances, which he has submitted, and I accept, are indicative of the abuse of alcohol and perhaps the generally itinerant and unsettled lifestyle that you have pursued. That subsequent history can properly be taken into account for only limited purposes, to which I will return.
The maximum penalty which a Court could impose for the commission of the offence of manslaughter in 1973 was imprisonment for a period of 15 years. At that time, there was a remission system applicable to sentences of imprisonment under the Social Welfare (Reduction of Imprisonment) Regulations (1965). I do not think that, for present purposes, I need set out the bases upon which such remissions were calculated. It is sufficient, I think, to state that under that system the maximum effective period which an offender would be likely to serve if the maximum sentence were imposed, and in the event that release on parole was denied, was approximately 10 years, although it should be pointed out that a sentencing judge was required to operate on the basis that the individual may be required to serve the full term, however unlikely that eventuality would be: See R.v. Yates [1985] V.R. 41.
I do not consider that it is necessary for present purposes to set out the legislative changes that have been effected since that time, but the remission system has been altered drastically in order to achieve what has been described as truth in sentencing. The result, as I see it, and simply expressed, is that you cannot now be subject to the imposition of a greater effective penalty than that to which you would have been realistically considered liable at the time of the commission of your offence.
The background to and circumstances surrounding the commission of the crime for which I must now impose sentence upon you are unclear in a number of important respects. Most of what is known derives from the statement made by your brother, David Culleton, to whom you provided a version shortly after the events, and upon whom you prevailed to assist you in the disposal of your wife's body. I should add, however, that that version is almost entirely devoid of detail and raises a large number of unanswered questions.
According to your brother's statement, on the night of 6 July 1973, or in the early hours of the next morning, you attended at his home in Sunbury. His wife noticed that you had a scratch on your face and enquired as to how you had received it. You stated that it had resulted from contact with a rose bush, although you later told your brother that you had been scratched during a struggle with your wife. You indicated to your brother that you wanted him to go with you to attend to a matter of some urgency. It does not appear that you provided much information at that stage.
However, he dressed and you both left the house, probably in his car. David Culleton was driving, whilst you gave him directions. You told him that you wanted to go to Geelong, to the home of your estranged wife and children, and then you proceeded to tell him what you said had earlier transpired. You asserted that you had had an argument with your wife about your children and that you had "flared up" and strangled her with an electric iron cord.
You requested him to help you dispose of the body, as you did not want it to be there when the children awoke in the morning. He has stated to the police that, "I agreed because he was my brother, and what could I say to him? I knew that what I was doing was wrong and that I could go to gaol for it, but I suppose I agreed out of loyalty to John. He did not force me or threaten me in any way to do this." He has later said, and I accept, that this decision has had a dramatic effect on his life thereafter, taking from him a peace of mind that he never fully regained.
When you arrived at the house in Geelong occupied by your wife, you went inside first and moments later your brother joined you. Upon entering through the front door, which was open, he observed Joyce Culleton lying face down on the living room floor. She was obviously dead. The only injury that he noticed to her body was a dark bruise around her neck. This, it should be pointed out, is consistent with your description that you strangled her. At this time, you were apparently checking on the children who were sleeping. David Culleton did not recall seeing any sign of a struggle in the premises, nor did he clean up anything whilst he was there. In other words, apart from the scratch on your face, there was nothing to indicate that your wife may have engaged in any act of resistance to your assault upon her.
The two of you remained in the house for about 20 minutes. I consider that it is reasonable to assume that this period was occupied in discussion concerning what should be done. In any event, you backed the car into the driveway alongside the house and then you both carried the body of Mrs Culleton and placed it on the back seat. The two of you then proceeded back to Sunbury, deciding along the way that it would be best to bury the body in that area, as it was reasoned that no-one would think to look for it there.
Upon arriving back at your brother's home, he obtained a shovel from his shed and the two of you drove towards Toolern Vale. You stopped at a farming property which had a double wire fence and some small trees planted alongside the road. A windmill and dam were located in a nearby paddock. There did not appear to be any houses in the vicinity. You stopped the car on the shoulder of the road and removed your wife's body from the back seat. With the assistance of your brother, you lifted her through the fences and carried her about 20 to 30 feet into the paddock. You laid her down as you dug a shallow grave. You had earlier removed your wife's clothing and, before placing her into the grave, you removed her jewellery so that she could not be identified. After disposing of the body in this fashion, your brother dropped you off in Sunbury and he returned home.
You were subsequently interviewed by the police in relation to your wife's disappearance and denied any knowledge of what had happened to her. Over the many years which followed, you provided a variety of false explanations and diversionary theories concerning Joyce Culleton's disappearance, and her fate remained a mystery until, at the instigation of your children, enquiries were reopened in 1998.
Your brother was re-interviewed and provided the description of events that I have set out. He was subsequently charged in relation to his part and has already appeared before this Court.
Endeavours were made to locate the remains of Joyce Culleton based upon his recollection of the location, but these have proved fruitless. It is highly unlikely that they will ever be found. This is understandably a source of distress to your children who, once it was learned what had happened to their mother, wanted at least to give her a proper funeral.
As I have earlier indicated, the only detail available to the Court of the circumstances in which your victim met her death is that which your brother recalls was provided by you over 27 years ago. It is clearly incomplete, but sufficient for the inference to be drawn that you admitted that you angrily attacked her in the course of a heated argument about arrangements for custody and access to your children following marital breakdown. The presence of the scratch on your face, the dark bruise on your victim's neck and your own statement that you strangled your wife with an iron cord, all indicate the employment of significant physical violence on your part.
Save that there is evidence before the Court which suggests that the relationship break-up between your wife and yourself was acrimonious, and, accordingly, the inference can be drawn that both of you were probably in a state of high emotion at the time, only a limited amount of the information has been provided with respect to the context in which you acted, or upon which a determination could be made as to what precisely precipitated what you described as a "flare up", but appears to be more appropriately called an outburst of explosive violence.
I am mindful in making this statement of the reference in your description to a dispute occurring about custody and access to your children. In view of what appears in the impact statements, the contents of which were not the subject of any controversy, to have befallen those children after their mother's death, I find it difficult to accept that their welfare was to the forefront of your mind at the time.
When referring to those victim impact statements, your counsel stated, "There are clearly some troubling matters in them, and I don't shy, and can't shy, away from the impact of what has happened to these three men as a result of my client's doing."
I am also conscious of the statements made by your counsel on the basis of the instruction given to him concerning your marital history and doubt that the picture presented accurately represents the true state of affairs.
I note in particular that no attempt was made to explain how it came about that you killed your wife, either in terms of your emotional state at the time that you attacked her or the events of that night. In that situation, there is very little that could properly be regarded as ameliorating your level of criminality with respect to the occurrence itself.
Nor do I consider that there are any indications that you ever developed any true sense of remorse for your actions. Accordingly, no foundation exists which would justify that consideration being taken into account in your favour.
Important aggravating features in your case, in my opinion, are the manner in which you disposed of Joyce Culleton's body and the false stories that you propagated concerning her disappearance. This conduct is, in my view, indicative of the absence of any significant sense of remorse, particularly when those lies were told to her children and has compounded the destructive effect of your crime.
The crime of manslaughter which you committed can arise in different ways under our law and there are different formulations of it to encompass the range of situations in which it will be perceived as having been committed. However, it can never be forgotten that each formulation involves the unlawful killing of another human being, a state of affairs which the law and our society regard very seriously indeed.
As indicated at the outset of these remarks, in your case, the Crown have accepted that you performed an unlawful and dangerous act. What that expression means in practical terms in the context of your case is the acknowledgement by the prosecution that you are not to be taken as having intended to kill your victim or to cause really serious bodily injury to her, but to have brought about her death through an unlawful assault upon engaging in conduct of a kind that a reasonable person in the circumstances in which you were positioned would recognise would expose your wife to an appreciable risk of death or injury.
A sentencing judge must, when dealing with such a case, reflect the repudiation of the community of the resort to violence to resolve personal issues. This is of particular importance in situations where a relationship breakdown is involved. There has been, after all, a whole system of law and an entire court structure put in place in our society for the precise purpose of dealing with such problems.
Regrettably, judges in the criminal division of this Court are regularly confronted with perpetrators, almost always male, who, unable to come to terms with relationship breakdown or rejection, give vent to their anger and frustration and commit the irrevocable act of taking the life of another, frequently their former partners, sometimes their children and sometimes those associated with them. In this context, I should also emphasise that there are usually a number of others who can be properly described as victims in such situations, as they suffer the loss of a partner, parent or family member, and some whose whole life histories are tragically changed.
It is apparent from the victim impact statements before the Court that your own children fall into this category. Their statements are filled with understandable pain and anger and a profoundly deep sense of betrayal, loss and, I suspect, unjustified guilt as they recall their responses to their perceived rejection by mother.
The Courts must, through the sentences that they impose for conduct of this kind, not only reflect a recognition of the significance of the destruction of human life and make perfectly clear that in this society the employment of unlawful violence will not be tolerated, but must also endeavour to deter those who may be so minded from engaging in the kind of behaviour in which you have engaged.
I now turn to your personal circumstances which must also be taken into account. You were born in England in 1934 and are now 66 years of age. You were one of three sons born in your family. It appears that your childhood was unremarkable. However, during your teenage years you became involved in criminal activity. On one occasion you served nine months detention in a Borstal Centre for the offence of demanding money with menaces. You spent a period in the army as a national serviceman, apparently serving in Korea in 1952 as a member of the United Nations force. You married Joyce Culleton in 1957 and came to Australia in 1968, shortly before your wife and children, and eventually settled in the Sunbury area where other members of your family resided. At around 1973 you found yourself in financial difficulty and were bankrupted. I accept that this period was one of considerable difficulty for your wife and yourself, and was rendered more difficult through your abuse of alcohol. Shortly afterwards, your marriage broke up, and your wife went to reside in Geelong with the two younger of your three children. After her death, you lived and worked in a variety of locations, generally, it seems, as a cook. You remained, I understand, a heavy abuser of alcohol, and life for the children who were now in your care must have been very hard.
Of course, your criminal history after the offence for which I must sentence you, your lifestyle since that time, or your deficiencies as a father, cannot be taken into account in the determination of appropriate sentence, save in the following ways. Had you demonstrated a reasonable measure of care and responsibility for the children, whose mother you had unlawfully killed, a more lenient view of what took place might have been possible related to a concern at the time about their future welfare or the presence of some remorse detected or the passage of time given more weight in your favour as indicative of rehabilitative change.
With respect to this last aspect, the point must be made that you have finally been brought before the Court only because your brother could no longer live with his sense of guilt and shame for assisting you. The long period of time which has elapsed since you committed your crime has been occasioned centrally by your own endeavours to avoid justice. You cannot claim to have acted and lived during this period in such a fashion that it might be presumed as unjust to hold you fully accountable now for a crime committed so long ago. However, there is no reason based upon the history of that period to anticipate that you would be likely to commit any further serious breach of the criminal law. Accordingly, I have taken the effluxion of time into account on that basis, and you have now pleaded guilty, and that fact must be taken into account in your favour.
You have over recent years formed a relationship with a woman from Bali, with whom you have a child of about ten months of age. Your partner has returned to Indonesia with the infant upon the expiration of a visa that permitted her to remain in this country. Whilst I accept that this is a source of distress to you, it can possess only limited significance as a sentencing consideration in your case.
I accept that you experience some health problems, but I do not understand that they are of an order that would justify any reduction of the sentence to be imposed upon you.
In all of the circumstances, I consider that you should be sentenced to imprisonment for a period of seven years and six months, and I fix a non-parole period of six years. I declare that the period of 587 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered into the records of the Court.
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