R v Flaherty
[2008] VSC 271
•22 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1680 of 2008
| THE QUEEN |
| v |
| MICHAEL PATRICK FLAHERTY |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2008 | |
DATE OF SENTENCE: | 22 July 2008 | |
CASE MAY BE CITED AS: | R v Flaherty | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 271 | |
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CRIMINAL LAW – Sentence – Murder – Premeditation – Victim kidnapped and driven to location at which executed – Cooperation – Frank admissions on arrest – Remorse – Guilty plea – Effect of s 6AAA of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert SC | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr C Winneke | Galbally & O’Bryan |
HIS HONOUR:
Michael Patrick Flaherty, you have pleaded guilty to the murder of Stephen John Witham at Mirboo East on 13 August 2006.
At the time of the offence you were living at flat 2/30 Van Der Haar Avenue, Berwick with another friend. Your girlfriend, Jodie Watson, stayed at those premises from time to time with her seven year old son Brock. In June 2006, about two months before the offence, you became acquainted with Mr Witham. He had recently been evicted from the boarding house in which he had been residing, and you invited him to stay at your place. However, shortly after Witham moved into the flat, problems emerged in your relationship with him. On the evidence, I am satisfied that Mr Witham was a difficult and domineering personality who was aggressive to, and sought to stand over, other persons at the unit including yourself, Jodie Watson and Brock. On at least one occasion he assaulted Jodie Watson and Brock. He also deliberately intimidated Brock by threatening to carry him outside while he was asleep and leave him in the middle of the road. On at least one occasion Witham and you had a fist fight.
Ultimately you requested Witham to leave the flat, but he declined to do so. Five days before you killed him a further altercation occurred. You contacted the Narre Warren police, requesting their assistance to evict Witham from the flat. However, when the police attended, they were advised that they were no longer required, and so they took no action.
It is not entirely clear, from your record of interview, when you first formulated your plan to kill Witham. I am satisfied, however, that in the days before you murdered him, you certainly entertained notions of killing him in order to remove him from your flat. Nevertheless, bearing in mind the criminal onus of proof, I accept that it was not until you returned home from work on the afternoon of 12 August 2006 that you actually conceived the plan and formed the specific intention of killing Witham. In order to carry out your plan you also enlisted the aid of other persons. Either you or Jodie Watson contacted a friend, Michelle Churchill, and asked her to obtain help to evict Witham from the flat. Michelle Churchill was not told of your plan to kill Witham. In turn, Churchill persuaded two of her friends, Aidan McGillivray and Darren Whittaker, to assist in removing Witham from the flat. You also requested another friend, Clinton McRae, to assist you. In the meantime you obtained a sheet of plastic with which you lined the boot of Jodie Watson’s vehicle. You also had some cable ties and rope from your work as a plasterer, which you intended to use in putting your plan into effect.
On the evening of 12 August, Witham was asleep in his bedroom. You rendezvoused outside the flat with Watson, McRae, Churchill, McGillivray and Whittaker. Churchill and Watson made their way to the kitchen. The rest of you entered Witham’s bedroom. McRae struck Witham on the leg with a baseball bat which he had brought as a weapon. McGillivray and Whittaker then overpowered and assaulted Witham. With the cable and rope, you tied his hands behind his back, and tied his feet together, so that he was hog-tied. Whittaker, McGillivray and Churchill were told that their role was complete, and that you could remove Witham from the flat on your own. Accordingly they left. You wrapped Witham in a doona, and placed him in the boot of Watson’s vehicle.
You then travelled with Watson and McRae in Watson’s vehicle to the country. Watson drove, and you directed her where to go. While you were en route, McRae telephoned an acquaintance, Aidan Connally, who owned a property at Turton’s Creek. McRae asked whether he could attend the property to go shooting and he obtained directions from Connally to the property. In the course of the trip to Turton’s Creek, at one point Witham managed to escape from the boot of the vehicle. However, you chased him and caught him. You assaulted Witham by kicking him in the face, and then returned him to the boot, and tied him up again.
Ultimately, after a three hour drive, you arrived at Connally’s property at Turton’s Creek. You stopped outside a shed at the rear of the property. You and McRae removed Witham from the boot of Watson’s vehicle, and placed him, covered by the doona, in an old four wheel drive vehicle owned by Connally. You spoke to Connally, and requested that he lend you a shotgun for the purposes of going shooting. Watson went into the shed where she remained with Connally’s partner. Connally then returned from the shed with the shotgun. There he observed the doona covering a shape which looked like a human body in the rear of the four wheel drive vehicle. You took possession of the shotgun and an ammunition belt from Connally. At that point Connally described you as being highly strung, so much so that he was frightened into driving the four wheel drive for you.
You and McRae entered the four wheel drive vehicle. Connally drove you to a remote location, stopped the vehicle, and walked away from the area, leaving you and McRae alone with Witham.
At that point you removed Witham from the vehicle. You had a six pack of beer in your possession. Witham requested that he drink a final beer with you. You granted Witham that request, and you each drank beer together and talked. When the beer was finished, you pushed Witham off the surface of the track with the sole of your foot. Witham rolled down a steep embankment into a dense pine plantation. You followed him through the trees. You then pulled him further into the bush. You lowered the barrel of the shotgun, which you had already loaded. Witham requested that you not shoot him in the face, and so he turned his face to the ground. You held the gun to the back of his head, pulled the trigger and shot him, thereby killing him.
Connally then returned to the vehicle. You, together with Connally and McRae, drove back to Connally’s shed. There you burnt the doona in a 40 gallon drum. You then drove back to Berwick with Watson and McRae. Later on the same day you and Watson cleaned the boot of the vehicle with soapy water and petrol to remove any bloodstains.
Approximately three weeks after the murder, you and McRae returned to the property at Turton’s Creek. You requested Connally to drive you to the location at which you had killed Witham. Connally agreed to do so, however he drove you to a different location. You searched the area and satisfied yourself that Witham’s remains were no longer visible.
After his death, Mr Witham’s daughter and former partner became concerned by their lack of contact with him. Ultimately, in April 2007, a person attended at the Frankston Police Station to report the murder of a male named “Steve”. In the meantime you had disclosed to a number of persons that you had killed someone, and on some of those occasions referred to that person by his name. The Homicide Squad investigated the matter over the ensuing months. Ultimately, you were arrested on 8 November 2007. Immediately following your arrest you made full admissions to the police, both in the motor vehicle in which you were conveyed to the offices of the Homicide Squad, and then in the course of the video taped record of interview conducted with you. You also accompanied the police to the area of Turton’s Creek, and endeavoured to assist them to locate the remains of Mr Witham. However, because of the dense foliage and nature of the terrain you were unable to find them. Later, with the assistance of Connally, the police were able to locate the remains of Mr Witham.
Pausing there, your murder of Stephen Witham can only be described as cold blooded, callous and ruthless. It was the result of premeditation at least from the afternoon of 12 August 2006. During the hours before the initial assault of Witham you planned his murder and organised it. You inveigled others to assist, at least in part, in the execution of your plan. The final act in that plan, the intentional shooting of Witham in the back of his head, was brutal, callous and utterly cowardly. Witham had been overpowered when he was grossly outnumbered in the flat in Berwick. He was then tied up and powerless, entirely at your mercy. When you shot him, he had no hope of defending himself, and you left his remains in a desolate tract of dense bush. It is not difficult to imagine the sheer terror of your helpless victim in the last hours of his life. Despite your statement to the police that you felt, by that stage, that you had passed the point of no return in your plan, it is clear, from your description of the events of that dreadful night, that during a period of a number of hours you had ample opportunity to abandon your homicidal plan and to spare your victim. In my view, Mr Silbert SC, the prosecutor, accurately described your offence as a “cold blooded execution”. As such it involved a very high degree of culpability on your behalf.
I have read the victim impact statements of Mr Witham’s partner, his daughter, his sister, and his niece. Those impact statements are eloquent testimony of the grief and anguish wrought by your killing of Mr Witham, and by the dreadful manner in which you perpetrated it. While Witham was the primary victim of your crime, his loved ones and family are also properly regarded as victims of it. By your brutal actions you have deprived them of a beloved father, partner, brother and uncle. Their ongoing suffering is an inevitable consequence of your heinous crime. The statements, which have been tendered to me, are a salutary reminder of the full impact of your actions.
I turn then to your background and antecedents, in order to seek an explanation for your extraordinary conduct, and also to identify relevant mitigating circumstances in your favour. In that regard I have been greatly assisted by the thorough and eloquent plea by your counsel, Mr Winneke. I have heard evidence from your mother, from Mr Dennis Spooner, the father of your former partner, from Mr Brian Shinners, a very close family friend, and from his daughter, Mrs Belinda Moresco. That evidence has assisted me to form a view about your background and underlying character. I have also had the advantage of a number of character testimonials which have been tendered on your behalf. In addition, I have read the report of Dr Sullivan, the psychiatrist who examined you on 21 June 2008, and Mr Ian Joblin, the psychologist who examined you on 28 May.
You were born in 1969 and are now almost 39 years of age. You were the eldest of three children, with a younger brother and sister. You come from a highly respected, hard working and law abiding family. Your father was a successful footballer and for a number of years was the manager of a transport company. Your mother has been and remains in active employment. Your younger brother is a successful jockey, and your sister, who is married, also has worked. You were raised in a close, supportive and loving family.
The evidence is that you were intelligent, well adjusted and popular, both as a child and as an adolescent. You did well at school, and participated actively in a number of sports. At that time your parents, understandably, harboured hopes that you would proceed to a tertiary education. However, you left school during Year 11 level at the age of 17, in order to commence employment.
Unfortunately, at about that time you fell into bad company. You commenced drinking heavily, and also taking illicit drugs, in particular marijuana and amphetamines. Although your parents and friends expressed their concern to you about your lifestyle, nevertheless you persisted in taking illicit substances, and in mixing with persons who belonged to that unfortunate milieu.
Notwithstanding the lifestyle which you then embraced, you nevertheless have been in regular employment throughout your adult years. You have demonstrated a capacity to obtain and retain work. That you have done so is a tribute not only to your ability, but also to your strong work ethic, with which no doubt you were imbued from a young age by your parents.
When you first left school you commenced work in a warehouse. After some months you then enrolled in Newport TAFE to do an electrical fitting apprenticeship, and at the same time you were employed by V-Line at Newport Rail Yards. You found the daily trip from your parents’ home in Cranbourne to Newport to be too onerous, and therefore you left V-Line after a couple of years. You were then about 20 years of age.
You next commenced employment at the Nylex factory, and then the Pilkington factory, both of which were in Dandenong. In 1991, you decided to go to Queensland, apparently in an effort to remove yourself from the environment in which you had found yourself. There you commenced work in a warehouse. Shortly thereafter you commenced a relationship with a young woman, Joanne Spooner. About one year after the commencement of that relationship, you began to live with Ms Spooner in her father’s house. Mr Spooner gave evidence to me, in particular about his observations of you when you lived with them. During that time your employer gave you greater responsibilities. Mr Spooner perceived that, as those responsibilities increased, you found it more and more difficult to cope. In the meantime, your partner, Joanne, gave birth to your daughter. You found the pressures of being a full time partner to Joanne, and a father to your daughter, combined with the increasing responsibilities of work, too much. Ultimately, you returned to Melbourne, notwithstanding the desire of your mother that you remain with your partner to fulfil your responsibilities to her.
On your return to Melbourne in 1998, you commenced work with a company involved with industrial tiling. After about 12 months you then commenced work painting houses, and you started your own painting business. You were self-employed in that capacity for about two years.
During that period you married. You and your wife purchased a rural property at Rupertbrook. However the marriage only lasted one year. According to your mother you were, at that time, heavily involved in the use of alcohol and illicit drugs. Your previous conviction, for drug offences, involved the cultivation and trafficking by you of drugs at your rural property.
After you returned to Melbourne you obtained employment as a plasterer with Mr Ron Watson. You had known Mr Watson’s daughter, Jodie, from your school years. You commenced a relationship with Jodie, and ultimately she and you, together with her son Brock, moved into the flat at Berwick, which was owned by Ron Watson. You remained employed as a plasterer with Mr Watson until your arrest by the police in late 2007.
The foregoing summary of your background discloses, as I have already stated, that you have commendably been able to obtain and retain gainful employment through almost all your working life. At the same time, it seems you have had difficulties coping with the pressures and stresses of any relationship.
In particular, it does seem from your background that you have not always acted responsibly when confronted with stressful situations. I do accept that you had genuine difficulty, at the time of the killing, in resolving the problem of Witham’s refusal to leave the flat and of his continuing conflict with you and the other occupants of the flat. I also accept the evidence, contained in Mr Joblin’s report, that due to your long standing drug use, you lacked the resilience to cope with the problem adequately. In saying that, I do not excuse your conduct. However, your background, and the reports of Dr Sullivan and Mr Joblin, do satisfy me that your conduct was borne out of stresses with which you were unable to cope. In this regard, I note that Mr Joblin states that you are not possessed of a psychopathic personality. I also note the evidence of witnesses called on your behalf, that you have not shown yourself to be a violent or physically aggressive person in the past. It is relevant that, notwithstanding your long-standing abuse of alcohol and drugs, you have no prior convictions for violence.
In the course of the plea on your behalf, evidence was adduced that it has only recently emerged that, when you were about 12 or 13 years of age, you were the victim of sexual abuse by a man who was an employee of your father. You never disclosed that abuse to either of your parents, and neither of them had any idea at all that such abuse had occurred. Indeed, the recent revelation of that abuse has been the cause of significant distress, particularly to your father. I take into account that that circumstance may have contributed to the deterioration in your lifestyle from your later teen years, when you commenced to indulge in the abuse of alcohol and drugs. It is also possible that the history of your abuse made you feel more protective of Brock, when you learnt that Mr Witham had assaulted him, and had also made the threats about him to which I have already referred. In that connection, I hasten to add that there is no evidence at all, in the material before me, that Witham had acted towards Brock in a sexually inappropriate manner.
I turn then to your conduct since the offence. During that period, before your arrest, you told a number of persons, in one form or another, of your crime. On some of those occasions you did so in a boastful manner. While that does not aggravate your offending, it certainly negates the existence of any contrition on your behalf before your arrest. As I have stated, immediately upon your arrest, and while you were being driven to the police station, you made a full confession to the police. In the course of a detailed record of interview, which was video taped, you repeated those admissions. I have had the opportunity of viewing the disc of the record of interview, as well as reading the transcript of it. It stands to your credit that you were entirely forthcoming about your role in the offence. On no occasion did you endeavour to minimise your participation in it, or to cast the blame for your offending on any other person. It may fairly be said that you took full responsibility for your offending. Indeed, it is evident that you sought to minimise the involvement of others, and to protect them from blame. I do not say that critically, but, rather, I commend you for not seeking to mitigate your culpability by blaming anyone other than yourself for your involvement in the crime. In addition, you endeavoured, to the best of your ability, to assist the police to locate the remains of Mr Witham. Although your efforts were not successful, it is clear from the materials that you conscientiously endeavoured to assist the police in that regard.
On the other hand, having carefully viewed the recording of your interview with the police, I cannot find that, at that time, you manifested any remorse over your actions. At that time, you were committed to being fully cooperative with the police, but by then you had not reached the stage at which you felt any contrition for your appalling actions.
You have been in custody since your arrest, albeit that for some of that period of time you have been in custody over other matters which are not previous convictions. During that time you have had the staunch support of your very loyal and close family, together with the support of family friends. During that time it appears that you have come to grips with the enormity of your offending. I was particularly impressed with the testimony of the four witnesses who gave evidence before me. I accept their evidence in its entirety. In particular, I am persuaded by the evidence of your mother, of Mr Brian Shinners, and of Mrs Belinda Moresco, that you are sincere in your expressions of remorse for your heinous crime. You have now gained insight, as evidenced by what you have said to your mother, as to the destructive and debilitating effect of drugs, which you now abhor. I accept that you have already commenced to take steps towards your rehabilitation. In that connection, I note the certificates which you have been awarded for completing a number of courses while in custody.
As part of your cooperation and remorse, you pleaded guilty at the earliest opportunity, namely at the first committal mention date in the Magistrates’ Court on 29 April of this year. The committal proceeded by way of hand up brief. I accept that by that time, you had already evidenced true remorse for your actions. Thus I accept that your plea has not only been made out of a genuine spirit of cooperation, and out of an intention to further the course of justice, but also has been accompanied by contrition. The fact that you made full admissions to the police, and subsequently pleaded guilty, has not only saved the State and the police the burden of a trial, but more importantly has spared Mr Witham’s loved ones of the trauma and stress of a criminal trial. I take all those matters into account in mitigation of your sentence.
In summary, you have a number of mitigating circumstances which operate in your favour, and thus reduce the sentence which I would otherwise impose on you. Without reciting all of them again, I particularly take into account your background and antecedents before the offence. As I have stated, you have a background of hard work and regular employment. Although you have two previous convictions, they are of little moment in relation to your current offence. I particularly take into account your cooperation with the police, your remorse and your plea of guilty. In addition, you have embarked on the road to rehabilitation. You are very fortunate indeed to be supported by your loving and close family and by some long-standing, loyal and much valued family friends. Their commitment to support you during your long period of incarceration will no doubt assist you ultimately to re-enter society when your term of imprisonment comes to an end.
On the other hand, as I have already indicated, your offending is particularly grave. You have committed the most serious offence known to our criminal law, namely the intentional taking of the life of another human being. The circumstances in which you murdered Mr Witham are particularly serious, involving the callous, craven and utterly ruthless killing of him after he had been assaulted, and rendered helpless. Of necessity, your offending must involve the imposition on you of a lengthy term of imprisonment. It is my duty to impose a sentence which is sufficient, not only to adequately punish you, but to properly express the Court’s and society’s condemnation of, and outrage over, your behaviour, and to constitute a strong deterrent to any other persons who may be like minded. It is particularly important that this Court uphold the sanctity of human life, and that it pronounce sentences for crimes such as yours which are of sufficient severity to serve as an effective deterrent to those who are otherwise minded to intentionally take the lives of others for their selfish purposes.
Bearing all those matters in mind, I sentence you as follows. I sentence you to 21 years’ imprisonment. I fix a period of 16 years during which you are not eligible to be released on parole. I declare, pursuant to s 18(4) of the Sentencing Act, the period of 136 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the Court.
As I have already stated, I have taken into account, in your favour, the fact that you have pleaded guilty. I have taken into account the circumstance that that plea was made as part of your ongoing cooperation with the authorities, and that it was accompanied by remorse. In the course of your plea, I discussed with counsel the effect of s 6AAA of the Sentencing Act. For the purposes of that section, but for your plea of guilty, I would have imposed a sentence of 23 years’ imprisonment, together with a non-parole period of 18 years. As I have already indicated, I publish my ruling as to the basis upon which I have sought to apply s 6AAA to this case.
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