R v Downie
[2012] VSC 27
•2 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0101 of 2011
| THE QUEEN |
| v |
| ELIZABETH DOWNIE |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2012 | |
DATE OF SENTENCE: | 2 February 2012 | |
CASE MAY BE CITED AS: | R v Downie | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 27 | |
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Manslaughter, Plea of Guilty, Ex Husband, Vigilantism, Discount - Assist Prosecution, Parity with co-offender. Sentence: 6 years imprisonment – Minimum 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Thomson | Director of Public Prosecutions |
| For the Accused | Mr Z. Zayler | Melaseca, Kelly & Zayler Barristers and Solicitors |
HER HONOUR:
Elizabeth Downie, you have pleaded guilty to the manslaughter of Martin Dick, which occurred on Monday 30 August 2010. There are two alleged co-offenders, firstly Callum Fitton, who has also pleaded guilty to manslaughter and was dealt with by Coghlan J, and Dean Maes, who is charged with one count of murder and due to stand his trial shortly. The Crown have presented an opening in this matter, which is Exhibit 1 on the plea.
You were previously married to Martin Dick in January of 1993, separating in 2002 and divorcing in 2005. In respect of your co-offenders, you met the accused, Dean Maes, in 2002 and had a relationship with him until March 2004, and you finally separated from him after an incident in which he was violent to you. You had not met the co-offender, Callum Fitton, until the day of this offending. He had been a friend of Dean Maes for some years at that time.
You and Martin Dick had six children, being Emily born in 1992, Gabrielle born in 1993, Nicholas born in 1995, Madeleine born in 1997, Joshua born in 1999 and Timothy born in 2001. Those children accordingly now range in age from 10 through to 19.
To understand the true nature of the offence it is necessary to understand a little of the background to the events, including your relationship with Mr Dick after the time of separation which was exceedingly difficult and troubled. When you left Mr Dick, you took the children with you and went initially to reside with your parents. It would appear that, over the last few years post the divorce, each of you have taken out various intervention orders against each other and could each be described as behaving badly towards the other. You lost custody of your children in about 2004 due to your substance abuse problems and they returned to live with Mr Dick.
In March of 2010, one of your daughters complained to you that the deceased had in fact masturbated in her presence whilst they were watching television. This was reported to the police, who interviewed Mr Dick, but he had, at the stage of his death, not been charged. Four of the children were removed from his care and came to reside with you, whilst your eldest son determined to remain with his father and your eldest daughter was, as I understand it, living elsewhere.
You were, furious about the allegations made against your ex-husband and, over a period of some months, requested a number of people to take action against him, including around April of 2010 complaining to your friend, James Smith, and saying: “Something should be done or someone should have him whacked. He doesn’t deserve to live”. You apparently asked Smith to take that action, but he refused.
That fury did not appear to abate over time and on 16 July 2010, you spoke to your friend, Matilda Wills, saying that you wanted someone to run through Martin Dick’s house and that you were going to get Maes to do it, but then decided against it because you thought that Maes would go too far, which gives a clear indication of your knowledge of Maes capacity for violence.
On 30 July, you were with Maes again when you rang Matilda Wills and told her that you were going to get Dean and together you were going to “run through that child molester’s house”. Maes then spoke to Wills and said: “Did you hear what Martin did to those girls … I’m going to kill the low life cunt”.
On 29 August, Wills visited you at your home and once again you were talking about how much you hated Martin Dick and about running through his house, and saying that you wanted him dead.
On 30 August 2010, the day that Martin Dick died, you had been at home with your daughter, Gabrielle, until approximately 1.00pm, at which stage you caught a train to Westonia railway station, where you had arranged to meet Maes, and Fitton was also present. At 1.41pm, you, Maes and Fitton went to Werribee railway station and walked to your house, arriving there at 2.07pm. You daughter, Gabrielle, was still at home and took some photos that were able to be shown to police later, which depicted the tattoos of Fitton. Whilst there, you, Maes and Fitton all consumed a couple of shots of alcohol. You then drove the other two co-accused to your ex-husband’s address, whom you had described to the two co-offenders as a paedophile and made statements that he had been touching up your daughters.
When you arrived at the address, Maes knocked on the front door and Mr Dick answered it. He quickly slammed the door shut upon seeing the three of you there, but Maes shoved the door open. According to the Crown summary, Mr Dick was then punched and kicked by the two men, with Mr Maes then going into the house where he fought with Mr Dick. Mr Dick’s blood was later found in the hallway, the dining room and the kitchen areas.
Mr Dick managed to escape out the front door, but Mr Fitton also then struck him a few times. Maes had acquired from somewhere a black-handled Forever Sharp filleting knife, and he came out of the house and stabbed Mr Dick several times. Fitton obviously continued to hit Mr Dick, and you kicked him as he lay on the ground in the front yard. Fitton was heard yelling out: “I’ll kill ya”. A young man walking home from school heard what appears to be Mr Maes yelling out: “He’s fucking dead cunt, just fucking leave the guy alone”. The school child knew Mr Dick as one of his school friend’s father and he was told by Mr Maes to: “Keep walking, mate, it’s got nothing to do with you”, but as he did, he heard you yelling: “Oh, you’re a fuckin’ paedophile. You’ve been touching people’s daughters”.
You all left and went to the car that you had been driving. Fitton returned again to abuse and assault Mr Dick, and Maes dragged him back to the car. Maes drove you all away from the area and then stopped just near 35 Cleveland Drive, where you took the knife that Maes had used and threw it down a drain. It was subsequently retrieved by the police. You all then drove to 68 Grevillea Crescent, where you all got out and were observed to wash at a garden tap, to remove the blood of the deceased man from your bodies and clothes. Some of the bloodstained clothes, presumably belonging to Mr Maes, were left in the garden. At Newport, the car ran out of petrol and was abandoned near the Newport railway station, and you went to Fitton’s bungalow, where you showered and had sex with both Fitton and Maes.
At about 6.42pm, you rang your daughter, Gabrielle, who told you that the police need to speak to you. You told her you were coming home, and caught a train to Hoppers Crossing station, where you were arrested. You were interviewed by the police and you told them of the fact that DHS had taken four of the children from your ex-husband’s care after the report of him masturbating in the presence of his daughter. You stated that this was why the incident occurred, but that you had not meant there to be any violence. You claimed that you did not injure Mr Dick in any way, but it became a violent confrontation when Mr Dick did not answer the door, and it was Maes who was punching him and Fitton kept going back and abusing him. You had not seen the knife prior to that. You told the police that the boys had been drinking and taking pills and that you might have in fact kicked Mr Dick to the side.
Neither Maes nor Fitton were arrested until 11.25pm that night, and they were arrested at Newport and they had been drinking steadily.
Martin Dick died as a result of multiple stab wounds. He had one stab wound to his right ear, five to his back and one to his left side. Two of the wounds caused internal bleeding and the collapse of his lungs. The Crown put their case on the basis:
“that Downie instigated the run through of Dick’s house because she was angry about his alleged indecent acts in the presence of her daughter. It was her intention that Dick be injured or beaten up. She assisted Maes and Fitton in the assault on Dick even though she may not have been aware of Maes having at the relevant time possession of the knife. Downie acted in concert with Maes and Fitton in an assault on Dick by Maes and Fitton and the death was caused by Maes”.
Acting, as I do, on the basis upon which the Crown have accepted this plea of guilty, it could best be described as a fortunate result to you. On the Crown’s scenario, you instigated Maes and Fitton to injure or beat Martin Dick because you were angry about his alleged indecent acts in the presence of your daughter. You were acting in concert with them in an assault. You were unaware that Maes had a knife and were not present when Maes grabbed the knife or obtained the knife, but you were certainly aware of Mr Maes’ propensity for violence. You had dwelt upon this for a long period of time. You drove the two men to the address. You were with the two men when they drove away from the address. You got rid of the knife and you had threatened this type of behaviour on numerous occasions.
The maximum penalty for manslaughter is 20 years’ imprisonment. This must be considered a serious form of manslaughter, as it can only be described as a vigilante killing. A complaint had been made to you by one of your daughters. It had been reported to the police and they were investigating it. That, however, was not sufficient for you. As you expressed it, over a period of months your view was that Mr Dick had to be punished, and punished quite severely. You made yourself, and with the use of your co-accused, you all became judge, jury and executioner. That is not your right. That is not the right of any member of a civilised community. Whilst you may have regarded the alleged behaviour of your ex-husband as vile and harmful to your daughters, you do not get the right to determine his punishment. Firstly, he is presumed, like every other member of our community, to be innocent. It is only if the matter is successfully proven beyond a reasonable doubt that he is a person who becomes liable for punishment, and that punishment is to be determined by a court not by you. You have no right to usurp those decisions. You had dwelled on it for months, you had expressed your desire to hurt Martin Dick, to punish him. You had already informed Maes, and on this day you clearly involved both Maes and Fitton in this behaviour. Your actions are reprehensible. You have deprived your children of their father. Even if he had been found to have committed the indecent act in the presence of one of the children, it would not necessarily have followed that he could and would not have been a good father to the other children.
Mr Dick had brothers and sisters, and I have received the Victim Impact Statements of Robert Dick and Caroline Donelly, being respectively his brother and sister, which were tendered as an exhibit, and heard Kathryn and Phillip Wood read their Victim Impact Statements in court. The one thing that can be said in relation to all the persons who are connected to someone who has been killed in this appalling manner is that their lives have been forever changed. That was demonstrated from the Victim Impact Statements, and I do take into account what they had to say. You heard them, and I am sure you equally could hear the pain that they suffer. As I constantly say to those in their position, there is nothing this Court does that can or will ease their pain. It would not matter how long a person is gaoled, it does not bring back the person they loved. It does not ease the pain. It does not ease the sorrow. Only time does that. But I will say to them one thing; they loved their brother and brother-in-law, so I hope, for their sake and for Mr Dick’s sake that one day they will actually, when they talk about him or think about him, smile with love and affection and remember the joy he brought into their lives, rather than the tragedy of the manner of his death.
In this case, you have six children who are the children of Mr Dick. There are no Victim Impact Statements from those children, which is far from surprising. They must be torn between the loss of their father and their love of you. You are their mother, and children love their parents, no matter how badly those parents may have treated them. You are responsible for the death of their father, together with your co-offenders. You will also be incarcerated for a substantial period of time. The six children are the ones who will suffer very badly from this dreadful offence. They currently reside with your parents, who are obviously loving and caring people and I also hope that they have good, strong interaction with Mr Dick’s family. People need to be loved by many, and children in the vulnerable position that these children are, need all the love, affection and care that they can receive.
In terms of your offending, you are in a higher position in terms of responsibility than that of Fitton. I have read the sentencing remarks of Coghlan J. where he said:
“I accept that although you were willingly party to the attack on Mr Dick you did not intend that the attack would cause death or really serious injury. You were, however, happy enough to be a part of inflicting quite serious injury on Mr Dick.
You were acting as a vigilante in circumstances that had nothing to do with you and which involved a judgment about Mr Dick based on very little, if any, evidence.
I have already mentioned the question of vigilantism, but I should add to that, that experience tells us that the consequences of emotionally driven, alcohol fuelled attacks are often tragic. You made up the numbers which are an important feature in cowardly attacks of this kind.
The fact of the matter is that as a result of this vicious attack on a man in his own home his six children have been deprived of a father and will have little contact with their mother for the foreseeable future.
I cannot help but observe the absolute futility of all this. Even if Mr Dick had not been killed, this would have been a serious crime.
You are less blameworthy than your co-accused. They, in any event, will stand trial for murder.”
I agree with Justice Coghlan that your involvement is at a higher level than that of Fitton. He indicated his cooperation and willingness to make a statement and give evidence against you and Mr Maes back in December of 2011. In relation to the issue of parity, I will take into account the sentence that has been passed upon Fitton even though you are not entirely comparable in terms of your involvement in this offending, you having a more significant role than that of Fitton, it is a matter I will keep in mind in determining the appropriate penalty. Coghlan J sentenced Fitton to five years with a non parole period of 3 years, and made a declaration of seven-and-a-half years with a non parole period of five years pursuant to S6AAA.
Equally, in your favour you have pleaded guilty to this offence and you have also agreed to give evidence for the Crown against Mr Maes. The Crown do not accept all of what is contained in your statement and, although three matters are disputed, it is really only two that are in dispute, as you accept the other as being not an accurate interpretation of your statement. The prosecution do not accept the assertion that you made in your statement that it was Fitton’s idea to go to your ex-husband’s house, they do not accept that the first time you told Maes about your ex-husband’s indecent acts was on the day of the 30th of August and neither do they accept your assertion that you only intended to verbally abuse Mr Dick and not cause any violence. So whilst your evidence will be useful as the prosecutor said, there is a non-acceptance by the Crown of certain statements intended to ameliorate your role in this killing.
I also have to take into account your personal circumstances. You are now 38 years of age, having been born on 20 January 1974. You are the youngest of six children. having four older brothers and one older sister, all of whom have been quite successful. Your parents are still married. Your mother was a music teacher, your father a managing engineer. You were an intelligent child. You attended Our Lady of Victories Primary School, won a scholarship to Sacre Coeur College, which you attended for Years 7 and 8 before gaining entry to MacRobertson Girls High School, a selective entrance school, which you attended during Years 9 through to 11. You failed Year 11 due to truancy after you became involved in drinking, smoking and cannabis usage. You transferred to Mentone Girls High School where you repeated Year 11 and completed Year 12 over a two year period, due to you already having a child. This was in large compass due to the relationship you had already formed with the deceased man, Martin Dick. You were aged 15 when you met Mr Dick. He was 21 years of age and already in the RAF. You were pregnant to Mr Dick by the age of 17/18 and you married at 19, which was partly due to the strong Catholic beliefs of both families. You went on to have another five children together by the age of 29.
When you were 29 you left Mr Dick, taking the children with you. You described the marriage and relationship as being reasonable for the first couple of years but that Mr Dick was intimidating and controlling in that he was violent by way of smashing things in the house and you constantly fought.
As indicated you have six children: Emily, Gabrielle, Nicholas, Madeleine, Joshua and Timothy – aged from 19 through to 10. When you left the deceased you went to reside with your parents with the six children. It was initially a difficult breakup between the two of you but ultimately Mr Dick moved away for a period of some time and the problems between you ceased for that time. However, you had significant substance abuse problems and ultimately you lost custody of the children, with the children returning to live with Martin Dick in 2004. It is clear that alcohol has been a significant factor in your life which is apparent just by looking at your prior criminal history, which relates to driving offences connected to alcohol abuse.
You informed Dr Sullivan that you commenced using alcohol from the age of 12 and more heavily from the age of 15. After you lost custody of your children you became a serious binge drinker, drinking anything you could lay your hands on, and, when drunk, you became nasty and aggressive.
You used amphetamines first at the age of 16 and then from the age of about 30, using them intermittently until you lost custody of your children, at which time your drug usage increased, including using speed and ice. You have used heroin, saying that you’ve used it approximately 50 times after being in a relationship with a man who had problems with heroin, and abused his Buprenorphine. You have consistently used cannabis, starting in your early teens and then ceasing at some much later stage, but from the age of 30 you were smoking up to 2 grams a day. You reported to Dr. Sullivan that you enjoyed being stoned but agreed that it made you paranoid and was partly to blame for the loss of custody of the children because you were classified as an ineffectual and non-productive parent.
You have had many occasions in which you have been unable to really manage your life and despite receiving benefits unable to sustain accommodation and slept rough or in boarding houses or dependent upon the charity of your parents, brothers or sisters. You are serio-positive for hepatitis C and you have been physically abused by a number of partners over a number of years, including your co-accused.
Approximately six months after separating, you met your co-accused Dean Maes, who was five years younger than you. At that stage he was homeless and he moved in with you. At that point you were using ice and Maes assaulted you violently on several occasions. Despite this, you remained together over 12 months. You finally took out an intervention order against him, after a particularly bad beating and eventually moved in with your parents, to get away from his harassment. It is clear that despite that behaviour you kept in contact with him over time and maintained some sort of friendship.
You next became involved with a man by the name of David Pace – you were in your early 30’s he was 41. That relationship, although starting off well, ultimately became violent and you suffered a fractured nose. Despite this, the relationship remained on and off till mid-2006. In 2007, you were either living with your parents, your brother or were homeless. You lived in a boarding house for a short time but were sexually abused whilst there. In 2008, you moved into a house in Werribee and lived there for some time. You moved from there to Glenroy. There were other relationships, it would seem all of them disastrous, and ultimately you formed a relationship with a man named Caine who also has substance abuse problems, who apparently still visits you in prison. You have a history of exceedingly poor choices in male companions.
You have a relatively recent history of psychiatric issues. You have overdosed on heroin. You had previous episodes of depression, you have had derogatory auditory hallucinations, together with associated symptoms of poor concentration, and poor sleep. You are also a person who becomes angry and violent with unstable moods and low impulsivity.
In his opinion and recommendations, Dr Sullivan states that you have features strongly suggestive of borderline personality disorder which features are accentuated in times of intoxication. He does not believe you have paranoid schizophrenia saying your symptoms occur in the context of personality vulnerabilities and marked stress at a time when you use or withdraw from alcohol, cannabis and amphetamines. You have a past history of mood disorder. At the time of the alleged offending, there was no indication that you were experiencing any psychotic symptoms. He describes you as angry and intoxicated with alcohol, possibly Valium and in the company of two men, at least one of whom you knew to be violent. You may have been depressed but he says that is difficult to determine. Your inability to think clearly or make calm or rational choices due to the disinhibition of alcohol and your difficulties in handling anger, he found can be causally associated with the offences. I do not find that that is in any way ameliorating of the appropriate penalty that should be imposed.
Counsel who appeared on your behalf did not submit that there was any Verdins aspect related to that diagnosis by Dr Sullivan but he did submit, and I do accept, that you are experiencing incarceration as more burdensome, that you are vulnerable and you require placement in the protection stream. Whether that is as a result of you giving evidence against your co-offender or due to your borderline personality disorder is not something that Dr Sullivan states. As indicated however, I will take into account that factor in determining the appropriate sentence and will reduce your sentence by an appropriate amount for that aspect of Verdins.
Equally, I note that you are now the sole parent of six children, of whom four are still young. This is as a result of the crime of which you have been convicted. The care of these children now falls to your parents, with input hopefully from Mr Dicks’ family into the lives of the children. The separation from your children is not an unusual or special feature that mitigates your penalty, it is one suffered by all parents who are incarcerated be they male or female. It is just one of the many factors of your personal circumstances that I have to consider.
Equally I have to determine an appropriate sentence that takes into account many factors, including your plea of guilty for which you are entitled to a significant reduction in the sentence that would otherwise have been passed. Further, your cooperation in making a statement to the police and your undertaking to this court that you will give evidence in accordance with the statement in the trial of your alleged co-offender Dean Maes.
I also have to take into account and make an assessment of your prospects of rehabilitation. I am unable to say that they are good but I believe that they are reasonable. You are an intelligent woman and the affect of the shock of what you have done to Mr Dick and to your children may well have got through to you and got through that fog of alcohol and drugs in which you had surrounded yourself. I cannot be positive but I have a degree of hope that you may be able to reclaim your life and ultimately be the parent that these children so desperately need.
Equally, I have to take into account the need to impose a just punishment, an appropriate penalty to the circumstances of the offending, the impact that his death has had upon his family, being his brothers and sisters, and even more importantly his children, ensuring that there is both general deterrence, which is particularly important in a case such as this which is best described as a vigilante killing, and specific deterrence which, whilst it is ameliorated to a minor degree by your prospects of rehabilitation and other factors, is a matter of some significance. I also bear in mind the issue of parity relating to your co-offender Callum Fitton and the sentence imposed upon him by Justice Coghlan.
Bearing those factors in mind together with other factors to which I have referred earlier including your personal circumstances, the seriousness and nature of the offending and other associated matters on the charge of manslaughter you will be convicted and sentence to be imprisoned for a period of six years. I direct that you are to serve a minimum of four years before becoming eligible for parole. Pursuant to s 6AAA of the Sentencing Act 1991, I note that had it not been for your plea of guilty, I would have sentenced you to be imprisoned for 8-and-a-half years with a six year non parole period.
This does not include the reduction in sentence for your cooperation with the authorities, without such cooperation the sentence imposed would have been greater than that which I have already indicated. I declare you have served 521 (Five hundred and twenty one) days of presentence detention and I order that such be noted in the records of the court together with the statement pursuant to s 6AAA.
Application for retention of forensic sample pursuant to section 464 ZFB(1A) of the Crimes Act 1958 is granted.
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