R v Doherty

[2001] VSC 474

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  1510 of 2000

THE QUEEN

v

ANDREW STEPHEN DOHERTY

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 6-10, 13-17 August, 17 November 2001
DATE OF SENTENCE:	7 December 2001
CASE MAY BE CITED AS:	R v Doherty
MEDIUM NEUTRAL CITATION:	[2001] VSC 474

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Criminal Law – Sentencing – Murder – Domestic murder - No remorse.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan S.C with Mr. M. Tinney	Office of Public Prosecutions
For the Accused	Mr. I. Hayden	Pearsons

HIS HONOUR:

1. Andrew Stephen Doherty, on 17 August 2001 you were found guilty by a jury of having murdered your wife Vivienne at Donvale in this state on 14 February 2000.  It is now my duty to sentence you according to law. 

1. The circumstances in which the jury found you murdered your wife were horrendous.  It is necessary for me to summarise them so as to explain the sentence which I am about to pass on you.

1. At the time of her death your wife was aged 46.  You had been married since 1986 You had two children who are now aged 11 and 13.  Your wife had been married before and was the mother of 21 year old twin boys.  You had been married before but had no children of that marriage.

1. Up until 1991 you had been in regular employment with Telecom (which became Telstra) where you worked as a technician.  Shortly after you left Telstra you and your wife purchased a mud brick house in Larne Avenue, Donvale.  It was in a semi-rural setting on an acre or so of land. 

1. At about the same time you bought a small engineering business which, among other things, manufactured parts for machines which filled sausages.  This business, which appears never to have thrived, went slowly downhill.  Contemporaneously you were diagnosed as having chronic fatigue syndrome; an illness of unknown aetiology which manifests itself in lassitude and a general inability to engage in physical activity. 

1. In the months prior to your wife's death your relationship with her had deteriorated to a point where she had decided that your marriage was over.  It appears that it had never been a particularly fruitful relationship; one characterised more by tolerance than by actual love and affection. 

1. Around the beginning of 2000 your wife told a number of people that she had decided to end your marriage.  Once of those she told was Mr Martin Gillespie, the minister of the Mitcham Church of Christ which you both attended, and in which you were both active.  She asked him to speak to you on her behalf with a view to his convincing you that your marriage was over and that she wanted to separate.

1. You had a meeting with Mr Gillespie on Friday 11 February at the Blackburn Hotel.  He told you that he and your wife had spoken on the previous Monday.  She had told him that she had been trying to tell you for some time that she wanted to leave the relationship but that she thought you had not really grasped what she was saying.  He made it clear to you what your wife's wishes were. 

1. Although it is not possible for me to determine when the intention to kill your wife was formed in your mind it would be reasonable to infer that this meeting, and the solemn news which was conveyed during it, was significant in that ultimate decision.

1. On Monday 14 February your wife, as was her custom, took your two small sons to school.  After doing so she engaged in some further activities at the school during which she spoke to a number of other mothers.  She left the school shortly before 11.00 a.m., presumably to make the short drive back to your home at 27 Larne Avenue.  Whether you were there waiting for her when she arrived home or whether you came home after she did the evidence does not reveal.  It does compel the conclusion that whilst she was in the house, probably at about 11.45, you launched a murderous attack upon her with an iron bar.  The pathologist who conducted the autopsy on your wife' body found that she had received seven blows to the head, some of which involved fractures to her skull.  She would have died from these injuries within a very short space of time. 

1. The Crown case, which the jury accepted, was that you attempted to mask your involvement in your wife's death by creating the impression in your home that she had been murdered by an intruder who had gained entry to the house through a bathroom window.  You disturbed various drawers and cupboards in the house to effect this charade.  Whether you formed the intention to kill your wife as early as the preceding Saturday or even Friday evening after your conversation with Mr Gillespie, or whether it was a decision taken when the opportunity to do so arose on the Monday morning, it is impossible to determine with any degree of certainty.  The fact that you retained a number of minor commercial documents which enabled you to account for some of your movements on that Monday morning suggests a degree of premeditation.  However, I would not be prepared to draw that inference beyond reasonable doubt.  It may just have been that you had the receipts and they conveniently allowed you to account for your movements during some of the relevant period.  You will be sentenced on the basis that the degree of premeditation involved in this murder was no more than that necessary to account for the formation of the necessary murderous intent.

1. Your defence to this charge involved a recounting to the police of your movements on the day in question together with the production of the documents to which I have referred.  Of particular significance to the Crown case was the fact that when you first gave an account of your movements to the police you told them that during one period on that day you were at Eastland shopping centre.  Some days after telling the investigators this you informed them that this story was a lie and that, in fact, during the period to which you referred you were eating your lunch at Blackburn Lake.  The inescapable inference is that this change in your account was brought about by the late realisation that Eastland shopping centre was subject to closedcircuit video camera surveillance and that it would be difficult to maintain that you were there if the investigators were unable to find any image of you on the video recording device during the relevant period.  Your explanation for this lie, namely, that the truth (as you asserted it that you were at Blackburn Lake) was too insubstantial to compel credence, was probably rejected beyond reasonable doubt by the jury. 

1. The case which you presented at your trial and upon your counsel's plea for leniency on your behalf has deprived the Court of any insight whatsoever as to why you considered it necessary to kill your wife rather than to end your relationship with her in a more peaceful and civilised way.  It follows that you are unable to put before the Court any evidence of remorse for what you have done, or to offer any other evidence or explanation which would enable the Court to extend any mercy to you in fixing an appropriate sentence for this horrendous crime.

1. Your counsel tendered a report to your general practitioner by Dr Ross Balson, a consultant physician, dated 26 April 1995, which confirmed a diagnosis of chronic fatigue syndrome.  That of itself provides no insight into the matters with which I am concerned.

1. Subsequent to your conviction you were examined by Mr Bernard Healey, a clinical psychologist who provided a report dated 31 August 2001.  In his report Mr Healey notes that you appeared, on testing, to be depressed and that your intelligence ranked in the 95^th percentile, although your memory capacity was somewhat reduced.  In light of your continued denial of your involvement in your wife's murder Mr Healey was unable to offer any further information which would be of assistance to the Court in the task which I must undertake.

1. An examination of your personal history shows that your life was as unremarkable as most.  You were born in Echuca to parents who are both still alive.  You were one of two brothers, the other of whom was killed in a motorcycle accident some 27 years ago.  After your secondary education you secured a rare place in the research department of the then Post-Master General's Department, which later became Telecom and then, later still, Telstra.  As I have already noted you remained there until about 1991 when you were retrenched.  Apart from the chronic fatigue syndrome to which reference has already been made, your health history was unremarkable. 

1. You have been married twice; your first marriage ending in divorce after only four years. 

1. Overall it would appear that you are an intelligent, introspective, somewhat withdrawn person prone to episodes of depression to a greater or lesser extent. 

1. You have been in custody since 9 March 2000; now almost two years.  During that time you have applied yourself to self improvement in a number of areas and it can be confidently predicted you will continue to do so as you serve your sentence.  You may find some consolation in these activities.   Since being at Port Phillip you have been engaged in some sort of management role in the prison hospital.  Again, it is likely that this sort of activity will occupy you in whichever prison you are finally placed.

1. The consequences of your crime are, of course, extremely far reaching.  There are before the Court a number of victim impact statements which attest to the effects of your actions on a very wide circle of people.  Of particular concern, of course, is the effect that the death of their mother is having on her four boys, particularly the two youngest who are still very young.  They have been significantly emotionally traumatised by these events; trauma from which they will never fully recover.  Other members of your wife's family have been also deeply affected. 

1. There have always been those who have resorted to the use of deadly force in a futile attempt to solve 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 that 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. 

1. Experience shows that people such as you, who have in every other aspect of their lives been law abiding and have enjoyed the highest of reputations (as witnesses called on your behalf attested) seldom offend again and pose no threat to community safety, so that questions of rehabilitation, specific deterrence and the protection of the community do not loom large in the calculation of the length of a gaol sentence to be imposed.  Whilst no amount of punishment can rectify the wicked wrong which you have committed, the community demands that your sentence reflect punishment for that wickedness.  It will do so. 

1. The sentence of the court is that you be imprisoned for 21 years.  It is further ordered that you serve a minimum of 16 years before being eligible for parole.  I declare the period of pre-sentence detention which you have already served as being 638 days and direct that this declaration be entered in the records of the Court.