R v Downey
[2011] VSC 672
•14 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0165 of 2010
| THE QUEEN |
| v |
| FERGAL PATRICK DOWNEY |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2011 | |
DATE OF SENTENCE: | 14 December 2011 | |
CASE MAY BE CITED AS: | R v Downey | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 672 | |
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CRIME – Murder – Intentionally causing serious injury – Plea of guilty – Circumstances of offending – Serious example of murder – Serious example of intentionally causing serious injury - Psychiatric history of offender – Principles of R v Verdins applicable – Sentenced as a serious violent offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Slim | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes | Rob Stary Lawyers |
HIS HONOUR:
Fergal Patrick Downey, on 18 August 2011, you pleaded guilty to the murder of Kenneth Rolfe and to intentionally causing serious injury to Carol Hellmann on 6 January 2010. You were re-arraigned on what was the fourth day of your trial. Your crimes occurred at the family home of Mr Rolfe and Ms Hellmann at 22 Field Street, Bentleigh. They were sleeping at the time you entered onto the premises. Mr Rolfe and Ms Hellmann were known to you and in fact were friends of yours prior to this night.
Early on 5 January 2010, you had gone to the Rosstown Hotel, Carnegie, in order to play a poker competition in the Sports Bar which started at 6.30pm and at about 10.00pm you left the hotel and returned to your apartment with a friend in order to smoke some ice. You stated that this was the first time you had smoked ice.
At around 11.30pm, you walked your friend to the train station and then returned home. At around 4.00am you rode your bike from your flat at Rosstown Road, Carnegie to 22 Field Street, Bentleigh and brought with you a backpack that contained a ball pein hammer and gloves. You entered the premises via the back gate off Godfrey Street and made enough noise to wake up the sleeping couple.
Also staying with Mr Rolfe and Ms Hellmann on that night was Mr Rolfe's grandson, Alexander Monks. Mr Rolfe came out to investigate the noise and was attacked almost immediately by you with a hammer. You proceeded to hit him at least 20 times. While Mr Rolfe was being attacked by you in the backyard, Mr Monks tried to lock the sliding back door as Ms Hellmann was trying to ring 000. At some point you stopped hitting Mr Rolfe and then managed to break the sliding door and enter the premises at that stage. Ms Hellmann was helping Mr Monks exit from the front door of the house.
Still armed with the hammer, you confronted Ms Hellmann, asking her where the money was, and proceeded to attack her in Mr Rolfe’s bedroom. You hit her a number of times to the head with such force that you fractured her skull. The injuries Ms Hellmann received as a result of the attack were severe and life threatening, and were detailed in a victim impact statement which was Exhibit 1 on the plea. I will go through those in a little more detail later.
After attacking Ms Hellmann, you left the premises and returned to your apartment. The police were made aware of your involvement through their investigation at 22 Field Street. Mr Monks, who had left the house during your attack, had then proceeded to a neighbour’s house and used their phone to speak to the police. Once they had arrived, Mr Monks directed the police to 22 Field Street whereby they found Mr Rolfe’s unconscious body and Ms Hellmann barely conscious. The police were able to communicate with Ms Hellmann, who was then asked who had attacked her and traced your Christian name with her finger on her thigh as she was not capable of speaking due to the injuries which you had inflicted.
Police were able to ascertain your full identity and arrested you at your Rosstown Road apartment a few hours after these events. You proceeded to give a “no comment” interview. You later indicated to police that you had dropped the hammer in a drain between your house and 22 Field Street. On 12 January 2010, the police located a ball pein hammer and pair of rubber gloves in a drain situated in between the two premises. Both items had blood on them and subsequent DNA testing determined with a high degree of probability that the blood was that of Mr Rolfe.
Mr Rolfe sustained at least 17 discrete curvilinear lacerations and bruises to the head and neck region, extensive bone injury with fragmentation of the skull and cranial vault, fractured left ulnar and fractured right finger. The cause of death was as a result of the head injuries inflicted.
As a result of the attack, Ms Hellmann sustained a depressed fracture of the skull which required neurosurgical intervention to remove skull fragments. As a result of the fracture, she was left with a dense right hemiparesis affecting her arm and leg, as well as ensuing complications from the acquired brain injury. She spent close to 12 months in hospital and recovering will require continual rehabilitation, support and further surgery as a result of your offending. Her life will be forever changed. Her loss is devastating.
I also received victim impact statements from Adrian Rolfe, brother of Mr Rolfe, June Armstrong, Ms Hellmann’s sister, Patricia Adams, Ms Hellmann’s cousin, and they were read out in Court. I received as well statements from Jody Hellmann, Ms Hellmann's daughter, and Alexander Monks, Mr Rolfe’s grandson.
The effect on that group of people has been particularly significant and their grief is profound. To state the effect of crimes such as these in so few words seems not to do proper justice, but I try to understand it as best I am able.
You are now 37 years of age. You were born in Essendon and are the eldest of five siblings. You left school after completing Year 11 and gained the formal qualification as a fitter and turner through doing an apprenticeship. You have worked on and off as a fitter and turner throughout the years and have not had any employment over the past two or three years leading up to your offending.
You are close to your mother, who gave evidence before me on the pre-sentence hearing. She visits you in gaol, as do two of your brothers, however you do not have the same relationship with your father and in fact you suffered physical abuse from him growing up. You have had relationships in the past but nothing of significantly long term.
You have a significant history of alcohol consumption and depression. At times you have been on the anti-depressant medication Effexor. On the plea I heard evidence from your general practitioner, Dr Oehr, who gave me a detailed account of your medical history from a time in 1997 until your offending, and his report became Exhibit 7. The doctor highlighted the fact that you had been referred to counselling in the past and prescribed various anti-depressant, anti-psychotic medications after you were diagnosed as suffering from depression in December 2000. You had earlier attempted suicide in 1997 when a relationship had ended and your employment had shut down.
When Dr Oehr saw you in January 2005, you seemed well and were in a relationship and working. But by March 2005 the relationship had finished and you were depressed and drinking heavily. In August, Dr Oehr referred you to the Primary Mental Health team at St Vincent’s Hospital because of your continued depression. Because you were living in Carnegie, there was difficulty with that arrangement and attempts were made to transfer you to the Bayside Community Health Centre.
Throughout 2006 and 2007 you continued to suffer from depression and were referred to Professor Peter Doherty, who provided a report to Dr Oehr about you. In 2007 you reported hearing voices, and that appears to be the first time you made such a report. You were drinking heavily and using small amounts of marijuana. Dr Oehr assessed you as being psychotic at that stage and prescribed anti-psychotic medication for you. You told Dr Oehr that you used alcohol as a sort of sedative.
In March 2007, you were referred to a local psychologist in Carnegie, but during that year you still reported hearing voices. You reported, however, heavy use of alcohol on a daily basis. You were sleeping a lot, and that was confirmed by your mother. You still reported auditory hallucinations in March 2008.
Dr Oehr last saw you in March 2009 when you reported as still being paranoid at times, and you regarded your life as being a battle between good and evil. You regarded yourself as functioning better after drinking. Dr Oehr counselled you about your drinking. You saw various other health professionals during that period, but you do not appear to have formed any particular relationship with any of those practitioners.
Dr Walton, a very experienced forensic psychiatrist, gave evidence on your behalf and said he diagnosed you as suffering from schizo-affective disorder. In Dr Walton’s opinion, you had been suffering from auditory hallucinations for some years prior to reporting them to Dr Oehr in 2007. Dr Walton said that a person who suffered from schizo-affective disorder would have symptoms akin to combined symptoms of bipolar disorder and schizophrenia, the first set of symptoms being mood swings, depression and hypomania, and the second, hallucinations or delusions. He said that you are being held in St Paul’s Psychiatric Unit at Port Phillip Prison and your treatment was complicated, although you are now being treated with the anti-psychotic medication Largactil and with the mood stabilising agent Lithium.
Dr Walton said that your symptoms waxed and waned, that you were still at times having auditory hallucinations and also being depressed. The particular type of hallucinations seem to be a commentary about you of the derogatory nature that seemed to be consistent with the evidence of Dr Oehr. It was never completely clarified on the material that was before me how it was suggested that the hallucinations you were said to have suffered on the night of offending were command hallucinations in comparison with the other hallucinations from which you had suffered. Your prognosis, for the reasons set out above, is obviously guarded, but it seems reasonable to say that because of your condition, imprisonment will be more onerous for you than others. I am directed as a matter of law to take that into account.
Dr Walton was cross-examined on behalf of the prosecution. It was put to him that based on some of the other material there was a possibility that you were feigning or at least exaggerating your symptoms. Dr Walton was forming his diagnosis as to your mental condition, but I do not think he excluded the possibility of exaggeration. It did not appear that you were particularly frank with Dr Walton about your use of marijuana, but I do not think much turns on that.
In general, Dr Walton is of the opinion that you are remorseful, and I accept and will proceed to sentence you on that basis. Dr Walton was of the view that you had at all times open to you the defence of mental impairment.
On the plea, I received a reference from your brother Daniel. It is clear that you have his support and the support of you mother and one of your other brothers. The other members of your extended family appear to be struggling with the situation. I do give you credit for your plea of guilty because you did have both medical and legal advice that you had the defence of mental impairment open to you. The trial, as I have already noted, had proceeded for four days and had done so on the basis that it was your defence that you were not guilty of the offence for which you were then charged on the grounds of mental impairment.
Your mental condition at the time of the offending is a major matter to be considered on this plea. Mr Hallowes, counsel who appeared on your behalf at trial and on the plea, submitted that you should receive a discount in sentence because of your mental illness based on the principles which have been set out by the Court of Appeal in the case of R v Verdins.[1] Because of the proposed defence of mental impairment, a large number of reports were provided to the Court and I heard the evidence referred to above from Dr Oehr and Dr Walton.
[1](2007) 16 VR 269.
Dr Walton, in his first report dated 16 December 2010, said that he had received the following history about the offending from you:
“Mr Downey stated that after his friends departed, there was a barrage of auditory hallucinations along the lines: ‘You must kill Kenny, he’s going to kill you’ and ‘Do it, kill him. If you don’t do it, we are not going to let you sleep.’
Mr Downey finally armed himself with a ballpein hammer and rode his bicycle to the victim’s home.
Mr Downey stated that he deliberately made a noise in the backyard in order to attract the victim which was successful and he promptly attacked him and the victim sustained fatal injuries.
Mr Downey then made his way into the bedroom where the principle victim’s partner was present and he struck and injured her seemingly not with the intention of killing her but she was screaming: ‘I had to shut her up.’”
As to the question of diagnosis at that stage, in his opinion he said later in his report under the heading “Opinion”:
“I’ve not observed Mr Downey when manic although I have no particular reason to doubt the history in that regard and the preferred primary diagnosis is that of bipolar disorder. Alternatively he might attract a diagnosis of schizo-depressive disorder. Sufficient to say that for medical legal purposes, he’s suffering from a major mood disorder, at times of psychotic proportions.
Mr Downey is of normal intelligence.
This man does have a history of alcohol abuse but not to a point where I would describe him as actually alcohol-dependent. Amphetamine abuse has been intermittent only.
On the night in question Mr Downey had taken amphetamine but in my opinion he was not in the state of simple drug-induced psychosis, rather the drug abuse and possibly alcohol indicate to some extent may have aggravated the underlying psychotic illness.
It is Mr Downey’s account that the killing of the deceased and injuries inflicted upon the deceased’s partner were a direct response to command auditory hallucinations and he had formed the deluded notion that the deceased was to kill him. He might be described as acting in a thoroughly distorted proactive self defence fashion but in my opinion his psychotic rendered him unable to reason with a moderate degree of sense and composure as to the wrongfulness his acts. Thus in my view Mr Downey does have the formal defence of mental impairment available to him.”
That was a report dated 29 March 2011. Dr Toal, in her report, reported the following matters:
“On the night of the offence he described that he went to play poker with a friend. He said he explained to him that he had been feeling low following an argument with another friend and in response to this, the person he was with offered him to smoke some Ice. He said he smoked this ‘for the first time in my life’ and also consumed a six pack of beer Kilkenny. He said that he left at 10.30 and shortly after this started hearing voices saying ‘Kill Kenny’. He described, ‘The more I heard it, the worse it got’. He reflected that it may have been a delusional thought related to drinking the beer. He later said he felt it was a voice of the devil saying, ‘Kill yourself’. He said that he continued to listen to the voice and tried to ignore them and tried to stop them by taking five or six of his Abilify antipsychotic tablets but he said he was unable to resist the thoughts in his head. He said that the voices continued from 11.30 to 4 am in the morning saying, ‘Kill him, kill him, or we won’t let you sleep’. He said he then took a hammer from his tool box and got on his bike and went over to his friend Kenny’s house. He said when he arrived at the house, he hammered him with the hammer until he was dead. He described at this point the voices stopped and initially he said he went home. However when I pointed out to him that I was aware that he had also attacked the victim’s wife, he initially said ‘Did I?’ and then later said ‘I hit her once’. When I asked about the concerns he had threatened to steal money, he said ‘That was dropped in court’. He said he was probably afraid that she would tell on me but the voices continued to say ‘Kill Kenny, kill Kenny’. He then went home, drank more wine and had some more Abilify tablets and tried to go to sleep.”
Dr Toal continued as part of her opinion and recommendations:
“Mr Downey described becoming involved in frequent physical alternations with others prior to the offence which he does not attribute to being unwell and denies that these occurred in response to any psychotic phenomena such as hearing voices or paranoia. However both his own description and that provided by the witness statements indicate that he had a particular propensity to violence likely related to his early personality development and possible perceived victimisation from others which appears to have been present at a young age.
Mr Downey had been diagnosed with bipolar effective disorder, schizo effective disorder prior to the offence based on previous presentations with apparent manic psychotic behaviour. Unfortunately I have had no access to objective assessments of either of those diagnoses. While sever of the witness statements refer to being aware Mr Downey had a mental illness, none of them refer to observing any particular signature signs of mental illness other than observing him to become impulsively aggressive.”
And later:
“Whilst it is certainly possible that Mr Downey has a diagnosis of bipolar effective disorder or schizo effective disorder, Mr Downey did not describe to me features of a significant relapse in either illness immediately before or after the offence. Rather he described continued heavy alcohol consumption and regular cannabis use. He described in the days prior to the offence that he had experienced voices commenting on his day to day activities and an increase in exercise but did not describe any other significant features of significant manic or psychotic episode. Similarly Mr Downey described it was not until several weeks after the offence that he developed auditory hallucinations again and ideas references from the television in association with a lowering of mood but denied presence of such symptoms immediately after the offence.”
It followed that Dr Toal was of the opinion that the defence of mental impairment was not open.
Dr Shannon Reid, another very experienced forensic psychiatrist from Forensicare provided a reported dated 11 July 2011. Dr Reid under the heading, “Summary and Opinion” said:
“There appears to be reasonably strong evidence that Mr Downey has a psychiatric illness that is associated with mood disturbance and psychosis. While he appears to have periods that represent major depressive episodes and manic episodes, he has also periods of psychosis that he describes as being temporarily independent of significant mood disturbance. It would appear that his condition is best described as representing schizo-affective disorder.
Mr Downey also appears to have a substance abuse disorder relating to alcohol and cannabis. He has abused amphetamines on isolated occasions.
While it is difficult to make comment regarding personality after a single interview, it appears from the available material that Mr Downey has a history of irritability and impulsivity that occasionally has involved acts of aggression. He has a significant history of substance abuse. During previous episodes of aggression it appears probably that he had some difficulty in developing empathetic consideration of others at times. While it is possible that psychiatric illness and substance use has had some influence upon these features, it would appear likely that aspects of his personality have also had a role.
There is no indication of the presence of symptoms of acute illness at this interview. Mr Downey appears to have had a good level of factual and rational understanding of the court process, and is likely to have a good capacity to follow the progress of a criminal trial and communicate effectively with his legal counsel. There were no features present at this interview that would appear to diminish his fitness to stand trial to a significant degree.
There is no evidence of symptoms of mood elevation in the period immediately prior to the alleged offence. While there is some description of symptoms of depressed mood, it appears that these were relatively minor and that Mr Downey was able to leave the home and engage in social interaction on the night of the alleged offence without significant apparent disturbance.
There is no clear evidence of the presence of psychotic symptoms on the night of the alleged offence prior to the use of methylamphetamine. Mr Downey gives an account of psychotic symptoms commencing shortly after the use of methylamphetamine. This includes an account of auditory hallucinations commanding him to harm the alleged victim and persecutory ideas relating to one of the alleged victims.
There is some possibility that Mr Downey’s psychiatric illness may have predisposed him to experience psychotic symptoms when using methylamphetamine. It appears, however, highly probable that the onset of psychotic symptoms at that time was precipitated by the use of methylamphetamine. It is highly significant that Mr Downey reports that this was the first occasion on which he had used methylamphetamine, and I am not aware of any evidence that suggests this was not the case.
Mr Downey describes the sudden resolution of psychotic symptoms immediately after the alleged attack on the second victim. Such sudden resolution of symptoms is not typical of psychotic episodes related to schizo-affective disorder and suggests that intoxication with illicit substances may have had a significant role in Mr Downey's experience on this occasion.”
And he also was of the opinion that the defence of mental impairment was not open.
A further report had been provided from Dr Yvonne Skinner, who is a consultant psychiatrist. That report was dated 18 July 2011. Dr Skinner, who had not had the benefit of seeing the accused, was somewhat concerned about whether or not he might have suffered from a psychiatric illness at all. While I have great regard for Dr Skinner’s expertise, I think on the whole of the evidence I prefer the opinion expressed by Dr Reid in the circumstances.
Ultimately, Dr Walton provided a further report in which he set out in detail the matters expressed in the opinions of Dr Reid and Dr Skinner with which he disagreed. And the final view of his evidence was the evidence that Dr Walton gave here before me.
It seems to me clear enough that on the whole of the evidence you were suffering from a long-standing mental illness at the time of these events. However, as I expressed to Dr Walton when he gave evidence on the plea, the following matters need to be reviewed. I said:
HIS HONOUR: Doctor, I think what worries me about this case is that, at least on one version of it, it looks as though after about 10.30 the night before, he’s not had any more to drink and he’s not consumed any substance, having smoked the Ice at some time in that period. He then goes home, uses his computer in what appears to be a reasonably organised way, and some time around about 4 o’clock in the morning, substantial time having elapsed since the ingestion of anything, he then packs up his backpack with hammer, with gloves, goes. The command hallucination he described to be directed towards the deceased doesn’t seem to have much to do with the possibility, and it can't be put any higher than a possibility, I suspect, on the whole of the evidence, of committing an armed robbery and then attacking the second victim. There seems to be a slight disconnect between the first command - even in the way you described it, between the command hallucination and that victim, and then what follows after that. He then, in a pretty organised way, gets rid of the weapon and the gloves fairly close to the scene. Then he goes home and he gets back on the computer and just continues to operate on the computer. By the time he is interviewed by the police, he’s not showing any - many, if any, outward signs of suffering any psychosis. Even putting that in the context of not doubting that he’s got a - suffering from a psychiatric illness, I have got to try and figure out how much is at play, as you’d well understand?---Yes, Honour.
And they are the things that trouble me. Is there anything you want to say about that?---I mean, ultimately nobody has direct access to another person's mind, and we’re reliant on what we are told. He has consistently stated to me, and others, that he’s had these command hallucinations, at least involving the killing. I agree with you he doesn't speak more expansively, though in some respects the subsequent actions follow once that has occurred. The fact that he doesn’t obviously display signs of psychosis is not troublesome to me, because that is common enough, and I’m sure Your Honour would be familiar with the sort of stunned mullet syndrome, if you like, of many persons who have recently murdered, but I think certainly there is convincing evidence that he is seriously mentally ill -over time, it has been diagnosed on multiple occasions - it really a question of how severe was it on the night. As you know, my opinion was that he had an arguable defence we’ll never know whether the jury might have accepted it or not, but I agree. To the extent that there are activities or actions which might indicate the cognisance of normal feelings of moral guilt, that detracts from the proposition.
One of the features in the background of this case was how powerful the evidence was related to the question of the theft of money which appeared to be missing from the house after these events. Because of the final form of the evidence, it is not possible to come to any firm conclusions about that. Ms Hellmann, for reasons that are entirely obvious and understandable, had great difficulty in giving evidence in the case. Otherwise, without any reference to the motive for robbery, it means that the conduct simply remains unexplained. Even if it was in response to a command hallucination which made reference to killing Kenny, it does not satisfactorily explain the preparation and concealment which followed and what would be the necessary motive for the attack on Ms Hellmann. The threat that she represented to you was as a witness of your conduct and nothing else.
This is a most serious example of the crime of murder. It is a significant breach of trust of your relationship with the deceased and Ms Hellmann. It was in their own home. It was vicious in the extreme. The attack on Ms Hellmann, as I have already noted, was purposive in that it was designed to cover your tracks. The crimes, or at least the crime of the killing of Mr Rolfe, was in the presence of Mr Munks, his 15 year old grandson, and the threat that was then clear to Ms Hellmann was obvious to him when Ms Hellmann, for his protection arranged for him to get out of the house.
The crime of intentionally causing serious injury to Ms Hellmann is also in the most serious category. By way of indicating the truly seriousness of the injuries, you were not charged with attempted murder ultimately, and there were good reasons for that in the way the case had proceeded, but you would nonetheless have been guilty of murder had Ms Hellmann died. The offence of intentionally cause serious injury carries a maximum of 20 years’ imprisonment.
Having regard to all of the psychiatric evidence, but particularly having regard to Dr Shannon Reid’s evidence, and because of the operation of the law, your moral culpability is reduced to a degree but not substantially by your mental illness. I have already said that I accept you are remorseful. Your prospects of rehabilitation are guarded. You have a number of prior convictions and prior court appearances between 1991 and 2007. A number of them are for street violence and property damage, almost certainly driven by the excessive use of alcohol during that period.
By far the most serious was in September 2003 when you were convicted of intentionally causing serious injury and arson. Your father was the victim of the intentionally cause serious injury and the arson occurred when you set fire to the garage at your parents’ home. You were sentenced to be imprisoned for a total of three years with a non parole period of two years.
There was a further assault charge in July 2006 when you were placed on a community-based order for 12 months, which I suspect was in breach of the very end of your period of parole, but because of the disposition would not have led to anybody doing anything about your parole. Ultimately, you did not keep the community-based order and were sentenced to one month imprisonment fully suspended.
As a result of your earlier conviction for intentionally causing serious injury, you fall to be sentenced as a serious violent offender and I have already directed that that fact be recorded in the record of the Court, but I will repeat it when I come to make my final orders.
There would be consequences which flow from such a declaration. It is not submitted that I should impose a disproportionate sentence, but I am obliged to regard the protection of the community as the principal purpose of sentencing.
I am obliged to have regard to just punishment, both general and specific deterrence, those features being moderated to a degree by your mental illness. I have also had regard to your plea of guilty and the somewhat difficult circumstances in which you will serve your sentence. I have had regard to your somewhat troubled upbringing and I was impressed by the evidence given by your mother and the support that she gives you.
On Count 1, the crime of the murder of Kenneth Wayne Rolfe, you are sentenced to be imprisoned for 20 years.
In relation to the crime of intentionally causing serious injury to Carol Ann Hellmann, you are sentenced to be imprisoned for ten years.
I direct that six years of the sentence on Count 2 be served concurrently with the sentence to be served on Count 1, that is a total effective sentence of 24 years. I fix a non-parole period of 20 years before you are eligible for parole.
I declare, in accordance with the provisions of s 6AAA of the Sentencing Act1991, that if it were not for your plea of guilty, I would have sentenced you to be imprisoned for 27 years with a non parole period of 23 years. I indicate that, were it not for your mental illness, I would have imposed a significantly higher sentence having regard to the objective seriousness of this offending.
In relation to the non parole period fixed and the non parole period referred to in the s 6AAA indicate, I regard a period of four years as being an appropriate maximum period for you to be on parole both in your interests and in the interests of the community. I declare that you have served 706 days by way of pre-sentence detention. I order that this declaration, the indication that I have given pursuant to s 6AAA and the fact that you fall to be sentenced as a serious violent offender be entered in the records of this Court.
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