R v Diver
[2008] VSC 399
•24 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1656 of 2008
| THE QUEEN |
| v |
| GLENN WILLIAM DIVER |
---
JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2008 | |
DATE OF SENTENCE: | 24 September 2008 | |
CASE MAY BE CITED AS: | R v Diver | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 399 | |
---
Criminal law – Murder – Plea – Prisoner strangled his de facto in their home – Deceased had two teenage sons, one of whom is disabled – Sentenced to 17 years imprisonment with a non-parole period of 14 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Barbagallo | Office of Public Prosecutions |
| For the Accused | Mr M. O’Connell | Victoria Legal Aid |
HIS HONOUR:
Glenn William Diver, on 7 May 2008 you pleaded guilty before me to the murder of Cheryl Ann Haynes on 29 May 2007.
At about 11.20 a.m. on 29 May 2007 you killed Ms Haynes, your partner for the last two years, by strangling her with your hands and later with the cord from your dressing gown which you tied tightly around her neck.
Your son, Cody, was at home at the time of the murder, but at the other end of the house. You took your son to his grandmother’s, Ann Graham’s house. Ms Graham was the mother of your former de facto partner, Laurie Graham, who is Cody’s mother. You gave Ann Graham $1,000 and left Cody there. The $1,000 had been withdrawn from an account in Ms Haynes’ name.
You told Ms Graham you were in serious trouble and left. That was shortly before midday. Shortly after midday, you went to the Croydon Police Station, where you told police that you had killed Cheryl Ann Haynes by strangling her.
You were arrested and police inquiries commenced.
You had an injury to your right hand, which probably occurred as a result of you striking Ms Haynes, but you have never acknowledged doing so.
You were interviewed first by Ringwood detectives, and later by the members of the Homicide Squad. Sixty-six minutes of interview were spread over about eight hours.
You gave a version of events which seems to accord to a large degree with surrounding circumstances. The family movement on the morning of 29 May had not been out of the ordinary, except that your son, Cody, did not go to school because the rest of his class was away on a school camp and your daughter, Emma, was away on a school camp. Ms Haynes had taken her son, Matthew, to school and returned to put her other son, Steven on the bus to go to school.
You said that after Ms Haynes returned from taking her son to school, there had been a fight between you about money and the children. You smoked cannabis at some time during the morning.
The argument went on for some time, but was interrupted a few times. At about 11.10 a.m., Ms Haynes spoke to her brother, Peter Fry, and you overheard that conversation by listening on another extension.
The conversation with Peter Fry was to complain about you.
You confronted her about the call shortly afterwards. She apparently threw a cup of coffee over you and was angry with you. In that context, you strangled and killed her. Your killing of her was accentuated by your application of the cord around her neck.
Your reaction was to cover the body with a bedspread and to place a large punching bag on that.
All the matters occurred relatively quickly because the call to Peter Fry was at 11.10 a.m. and you were at the police station by shortly after midday.
Although you said in the interview that you strangled your partner “to probably kill her” and you placed the material on top of her “to kill her”, you also said later that you “never wanted to kill her” and “something just happened … it’s not every day you kill someone you love”.
You told the police the detail of leaving the house, withdrawing money and going to Ann Graham’s house.
As a matter of completeness, you said that you did not know how you had come to be injured. It seems likely that you did strike Ms Haynes with your fist. That proposition is supported by the fact that you have always maintained that she was on the ground when you strangled her.
You told the police the differences between you were about money and the children.
You had formed the view that Ms Haynes was harder on your children than on her own and that with regard to your children she was mean with money. I am not sure whether that was true or not, but it was your perception of it.
Both you and Ms Haynes had been in other relationships. You had been in a long-term relationship with Laurie Graham, who was the mother of your children, Cody, who is aged around 13, and Emma, who is 12. That relationship broke down in about 2000. The custody of the children was shared.
In mid-2005 you met Cheryl Haynes and moved into her home. Your children also moved into that home in late 2005. They seemed to have been abandoned by their mother at that point.
Shortly prior to that, you were injured at work and were on worker’s compensation benefits. You were made redundant in May 2006. It seems to follow that you did not have employment for a year before the murder.
Cheryl Ann Haynes was 45 at the time of her death. She had married Marino Haynes in 1984. They had two children, Matthew (16) and Steven (14). Steven suffers from William’s Syndrome and attends a school where his special needs are catered for.
Her marriage broke down in 1993 and ended in divorce in 1995. Her former husband’s father helped her purchase the house at 2 Tarnegulla Road, Croydon South. He had a half share of it, which he sold to her in 2005. From that time, she had the full financial burden of the house. You had, however, guaranteed the loan.
Ms Haynes had been employed full time between 1995 and 2001, but because of her son Steven’s condition, she was on a carer’s pension after that time. She supplemented her income with house cleaning work.
She took you into her home in 2005 when you had nowhere permanent and stable to live.
Once your children moved into the house, you each assumed parental responsibility for all of the children.
It seems probable on all of the material that once your children moved into the house full time, the relationship was not as harmonious as it had been.
You were on worker’s compensation and Ms Haynes had taken over full financial responsibility for the house. There were obvious financial pressures.
By May 2007, matters had reached a head. There were financial and family difficulties. Ms Haynes had decided that she wanted you and your children to leave the house. There had been a number of arguments between you on 27, 28 and 29 May 2007.
On the morning of 29 May, Ms Haynes spoke to her brother, Peter Fry, as has already been set out. In that call, she was crying and told her brother that she wanted to be rid of you but was frightened of what you might do. She complained to her brother that you had been taking money from her account whilst not having a job. She made an arrangement to meet her brother at 12.30 p.m. to discuss how to have you removed from the house. She did not survive to attend that meeting.
You overheard that conversation and it was very shortly afterwards that the final confrontation between the two of you took place. It does seem to have been somewhat one-sided.
When you were interviewed, you do not appear to have said much about the fact that Ms Haynes wanted you to leave the house, a sentiment she had expressed to her friend, Ms Ross, the previous day.
Whatever the earlier position had been, whatever argument there had been about the children and money, the fact that you were going to be removed from the house was a much more serious matter.
It would have effectively brought the relationship to an end. I follow that it might well have been your perception and to some degree the perception of your son that Ms Haynes was more generous to her children than to yours.
One thing which needs to be emphasised in this case is that Ms Haynes had shown great generosity in taking you and your children into her home. That was all the more so when she had the responsibility of looking after her disabled son, Steven.
I cannot avoid the conclusion that your view of those matters was self-centred and narrow. I am, however, prepared to accept the proposition that your response was sudden and unplanned. I accept that you were later to say to the police, in response to a question about what was going through your mind:
“I don’t know. You know what I’m thinking now, why? I could have just shifted. It would not have been hard, you know, I really don’t. Don’t know whether that sounds good, bad, I know how it is going to look in Court but I can’t explain it.”
It also seems to me that Ms Haynes’ concerns about financial matters were real enough. You were the person who was unemployed.
It is important to note at the end of the day that it was what was in your mind which was important. That is, your perceptions, rather than the facts. It must not be assumed that I accept your assessments as being factual. I do not. The culmination of events which led to Ms Haynes’ death have about them a sense of unreality because ultimately they depend on what was in your mind.
Even in your analysis of consequences when speaking to the police, you were more concerned about the fate of your own children than Ms Haynes’ children, although you did acknowledge responsibility for killing Ms Haynes.
You are now 41 years of age. You have an older sister and younger brother. You were born in Western Australia but soon after came to Victoria. Your father was violent and left you and your mother when you were about five years old. Your mother commenced a relationship with Mr Ted Pole a few years later. That appears to have been a happy relationship. About five years later, unfortunately, Mr Pole was killed in a car accident. Shortly afterwards, your mother formed a relationship with Mr Geoff East. That relationship was less satisfactory and you left home at the age of 16.
You were an average student at school and left in Year 10. Over the years, you have had a very large number of jobs and have mostly been in employment, however you injured your shoulder in 2005 and you have not been in employment since. For much of the period up to the murder, you were on worker’s compensation benefits. You had started to look for work at the time of the murder.
You had a difficult relationship with Laurie Graham, who is the mother of your two children. She came in and out of your life in a way which interfered with your ability to establish a stable and permanent home for you and your children. You were left with the responsibility for them in the context I have described.
In your youth, you had difficulty with alcohol and got into fights. You appear to have left that behind you and it plays no part in this sentence. You have since become a light drinker. You were a consistent user of cannabis and Ms Haynes shared that with you on occasion.
On your plea, reports from Dr Mark Ryan, psychiatrist, and Ms Pamela Matthews, psychologist, were tendered and Ms Matthews gave evidence on your behalf.
Dr Ryan had been consulted by your legal adviser particularly to provide an opinion on your fitness to plead and the possibility of any mental impairment defence. Dr Ryan found that you were fit to plead and that you were not mentally impaired within the definition contained in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Dr Ryan, in his report dated 2 March 2008, said:
“Although tearful on several occasions during our interview when discussing the death of his partner and separation from his children he presented as reasonably settled in his mood with improved sleep and appetite, no suicidal thoughts and is able to work and is coping fairly well in prison. The likely diagnosis is one of recurrent depressive disorder, as described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR). A less serious illness such as dysthymic disorder on the background of personality problems with prominent mood instability and substance misuse could also account for his mood problems. Additional diagnoses would include polysubstance abuse, in remission, and cannabis abuse in particular. Although, in my opinion, not an inherently antisocial man his character traits include emotional instability and poor impulse control and frustration tolerance.
Mr Diver reports that he recalls very little in relation to the assault on his partner after she allegedly threw a cup of coffee over him in the context of a heated argument. He described ‘losing it’. He denied any intention of harming her until that point or a history of violence towards her. He said he had smoked a small amount of cannabis earlier that morning but had had no other substances. He reported conflict in the relationship over money and children and that the relationship was ending which he felt upset about…
He is clearly a vulnerable man as a result of his early adverse circumstances who has struggled to manage strong emotions for many years and was undoubtedly very upset about the state of the relationship and in the context of an argument ‘just lost it’. He insists his actions were not premeditated and reported not being able to recall his intention at the time. It is, of course, not uncommon in perpetrators of such serious offences for there to be patchy recollection of aspects of the offence or even claimed amnesia. This does not suggest an unawareness of one’s actions rather the difficulties laying down memory when one is in such a heightened emotional state. Such a heightened emotional state, overwhelmed by the consequences of his actions, may also assist in explaining his confused account of his actions following the initial assault when he tied the dressing gown cord around her neck.”
Ms Matthews, in her report dated 27 April 2008, said:
“This 41 year old man pleads guilty to the murder of his former partner Cheryl Haynes. He presents with an average unimpaired intellect and low level features of borderline personality. He has a history of childhood attachments losses, exposure to emotional abuse and what could be best described as a dysfunctional home environment as a child. He also has a history of: chronic pain disorder; low level depression or dysthymia characterised by anger; and substance abuse, primarily cannabis. As an adult he has been involved in two relationships which he has found to be emotionally demanding, rejecting, and unrewarding; and in the case of the relationship with Ms Haynes emotionally, verbally and physically abusive. There is in the writer’s view a clear emotional qualitative connection between the attachments of his childhood, his adult attachments, his re-experiencing of his own childhood through his own children’s attachments, and the events before the Court.
Whilst Mr Diver’s murder of Ms Haynes appears to be disproportionate to the events on the day or even in the context of the overall relationship, when placed in the cumulative context of all of his attachments with significant features over a lifetime, then there emerges a picture of a man who had come to the end of his emotional resources, a man whom unleashed all the emotional pain and anger of childhood through to adulthood onto Ms Haynes. It is the writer’s view his background dysthymia (chronic low level depression) and chronic substance abuse have in this context lowered his psychological defences and exacerbated his response behaviour.”
You have the benefit of those opinions. They do, to some extent, explain your conduct. They reflect your response based on your perceptions. As I have already noted, it should not be assumed that your perceptions represent the truth.
I find that your offending was not premeditated, that for your reasons to do with your make up, you just “lost it”. I am also satisfied that you are remorseful, but that involves a mixture of true remorse for your actions in killing Ms Haynes and regret for your own predicament and that of your children.
Your plea of guilty is very important in this case. It does show your preparedness to facilitate the administration of justice and goes to your remorse. Your general cooperation with the authorities, although not absolutely complete, is also a matter to your credit.
You have a number of prior convictions between 1985 and 2001. They are for dishonesty, motor, drug and street offences. Apart from the fact that they mean you are not a person with no prior convictions, those matters are not otherwise relevant to this sentence.
Cheryl Ann Haynes was 45 when you murdered her. I have already set out the circumstances of her marriage and her relationship with you. She had the full time care of her sons, Matthew and Steven. Steven suffers from William’s Syndrome and is intellectually impaired. The loss of his mother in these circumstances must be profound.
Ms Haynes took you and your children in at great inconvenience to herself and her children, and you killed her in her own home. There is therefore a breach of trust in your offending.
Your use of the cord from your dressing gown thus constitutes the use of a weapon, although Ms Haynes may well have been fatally injured before you used it. The use of it does, however, reflect your attitude to her at that time.
Your own child was in the house at the time of the murder and it was only a matter of good luck that he was not a witness to it.
The loss of Ms Haynes to her friends and family has been devastating. I received Victim Impact Statements from her sisters, Tania Henson and Karen Bentley, her brother Peter Fry, and her sons, Matthew and Steven.
The Victim Impact Statements were read to the Court. The statement of her son, Steven, referred to what he said at Ms Haynes’ funeral service. I have viewed the portion of the video tape in which Steven speaks about the consequences of his mother’s death; it is very moving.
All the victims have found the process difficult and suffer greatly from their loss. No sentence I impose will assuage their grief.
Your own children live with their maternal grandmother. Ms Haynes’ boys live with their paternal grandparents, who have the support of the boys’ father, Marino. The fact that two young boys, one of whom is disabled, have been left without their mother is a matter of significant aggravation in this case.
I have taken your general psychiatric background into account, particularly in the way that it helps explain, although not excuse, your behaviour. That material assists me in coming to the conclusion that you acted spontaneously, rather than in any calculated way. I accept that you suffer from dysthymia, an ongoing minor depressive disorder.
I do not find, and it has not been urged on me that I should find, that your dysthymia operates to reduce your moral culpability or to make you an inappropriate vehicle for general or specific deterrence.
It assists me in the way I have set out above. It assists me to conclude that you have reasonable prospects of rehabilitation.
I was referred to a number of cases on the plea and I have had regard them[1].
[1]See R v Davey [2006] VSC 123, R v Gojanovic [2005] VSC 97, R v Doherty [2001] VSC 474, R v Butler [2007] VSC 185, R v Goodall [2000] VSCA 106, R v Leggett [2006] VSC 522.
I would hope that it is now trite law that murders committed in a domestic setting are no less serious than other murders. The principles of general deterrence do apply. Just punishment, general and specific deterrence have their role to play in this sentence.
What Bongiorno J said in R v Doherty [2001] VSC 474 at [21] bears repeating:
“There have always been those who have resorted to the use of deadly force in a futile attempt to resolve relationship problems. There probably always will be. Nevertheless, the community demands that this extreme form of domestic violence be visited with condign punishment. It declares its abhorrence at behaviour such as yours by denouncing it in the strongest possible terms. It does so in the hope that the denunciation, expressed in terms of a lengthy gaol sentence, will deter others from taking a similar course. Accordingly, punishment for domestic murder must be severe.”
It was urged on me on the plea that this was a case in which I should impose a lower than usual non-parole period. I have had regard to that submission. In particular, I have had regard to the fact that your plea was made at an early stage. I have also had regard to the proposition that it would not be unusual for trials to be conducted in cases such as these where some psychiatric issue might be argued. However, when regard is had to the seriousness of this offending and the sentence which I have formed, I do not regard it appropriate to reduce the non-parole period. That is so, having regard to the purposes of the non-parole period.[2] Although s. 6AAA of the Sentencing Act 1991 is not applicable to your case because your plea was heard before 1 July 2008, I am prepared to indicate in general terms the discount I have applied. I would approach the matter in the way Kaye J did in R v Flaherty [2008] VSC 270 and indicate that I would have imposed a sentence 3 years greater on both head sentence and non-parole period had you not pleaded guilty.
[2]See R v VZ (1998) 7 VR 693 [15].
For the murder of Cheryl Ann Haynes you are sentenced to be imprisoned for 17 years and I fix a non-parole period of 14 years before you are eligible for parole.
I declare that 484 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.
0
6
0