R v Fogwell

[2016] VSC 220

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0017

THE QUEEN

v

GAVIN WILLIAM FOGWELL

---

JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2016
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	R v Fogwell
MEDIUM NEUTRAL CITATION:	[2016] VSC 220

REASONS FOR SENTENCE

---

CRIMINAL LAW – Sentence – Murder – Plea of guilty – Deceased run over by motor vehicle multiple times – Sentence to 19 years with non-parole period of 15 and a half years – No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S A Coombes	Ms C Teague, Office of Public Prosecutions
For the Accused	Mr C T Farrington	Ms S Pratt, Paul Vale Criminal Law

HIS HONOUR: 

1Gavin William Fogwell, you have pleaded guilty to having murdered Adam Moody at Deer Park on Friday 2 October 2015.  It is now my duty to sentence you according to law.

2You were born in Blacktown, New South Wales, on 30 June 1967 so that you are now 48 years of age.  You have not been employed since 2002 when you suffered serious injuries in a truck accident, including an injury to your spine.  You are married to Pamela and with her you have had four children, now ranging in age from ten to 16 years.

3In about May 2014, your wife resumed a 20-year old friendship with the now deceased man which subsequently led to her moving with the children to live with him in Deer Park in about December of that year.  However, by October of last year your relationship with your wife had resumed in the family home at Melton.  Although you were living together, you remained suspicious of your wife's fidelity and suspected that she was again associating with the deceased man.

4On the night of 2 October you went looking for her.  You located her at a Caltex service station on the corner of Ballarat Road and Robinson Road in Deer Park.  She was with the now deceased man.  You confronted him and a heated conversation took place concerning the paternity of the child with whom your wife was pregnant.  You claimed that your wife had lied both to you and to the deceased.  The argument became more heated.  You entered the service station shop and asked the attendant to call the police and then returned to your vehicle, a Toyota Pajero SUV, and began driving it in an erratic manner in circles around the petrol pumps on the service station forecourt, apparently to frighten the deceased.

5At about the time this was happening, the deceased man went into the shop, paid for the fuel he had put into your wife's car, and also asked the attendant to call the police.

6Shortly thereafter, you stopped your vehicle in front of your wife's somewhat smaller car in an obvious attempt to block its exit from the service station; however, your wife was able to drive round your larger vehicle and exit on to Robinson Road, chased by you.  You  then rammed your wife's car from behind, causing it to mount the adjacent nature strip and collide with the rear fence of a house.  You then rammed your wife's car again, this time on the front driver's side.

7The deceased man left your wife's car and yelled at you, “You're fucking dead, cunt”.  You responded by driving your car directly at the deceased, striking him with the front of your vehicle and pinning him to the ground.  He could not move and was crying for help.  You then repeatedly drove backwards and forwards over him, causing him to be dragged through two adjacent backyards.  You were heard by witnesses nearby to say a number of times, “I'm going to kill him,” as you drove over the now deceased man.

8Much of this activity was captured on closed circuit television installed at the service station.  In response to numerous triple-0 calls, presumably made by people who saw what was happening, police attended and quickly found the deceased who had suffered extensive injuries.  You were then arrested and interviewed, at which time you admitted you had killed the deceased and said that the deceased had threatened you.

9Prior to these events, in May 2015 you had yourself gone to the Melton Police Station where you told police officers that you believed the deceased was going to kill you.  You said your wife had informed you of this; however, she had at about the same time obtained an intervention order against you because she said she feared you would kill her.  Subsequently, however, in September 2015 she obtained amendments to the intervention order so that she could again have contact with you.  By then she was pregnant and had allegedly maintained separately to both you and the deceased man that each of you was the father.

10As you have pleaded guilty to the murder of the deceased there is no need for me to elaborate further on this tragic saga.  You killed an unarmed, defenceless pedestrian by running over him a number of times with a large four-wheel drive vehicle.  Your actions were witnessed by a number of innocent bystanders who were thus also subjected to potential stress and anguish.

11When interviewed by police after the deceased's death you said, “He's the only one I had to kill, mate”.  You admitted running over the deceased ten times.  A pathologist later reported that the deceased had died from multiple injuries to the head and chest, including multiple bone fractures.

12You stand to be sentenced for this heinous crime with only a minor criminal record which you acquired in New South Wales a long time ago.  It will play no part in my assessment of a just sentence in this case. 

13In December 2002 you were involved in a motor vehicle accident which left you suffering major depression for a long time.  A recent review of your mental state by forensic psychiatrist Dr Kevin Ong noted that you had suffered from “problematic anger” for many years subsequent to your motor vehicle accident.  You suffered from depression, for which you were prescribed medication, but you apparently stopped receiving medical attention or taking this medication about Christmas 2014.

14You told Dr Ong of your thoughts concerning the deceased leading up to your killing him.  You said that between May and August 2015 you were increasingly concerned for your own safety and that of your family, although this was against a background of your being suspicious of your wife's relationship with the deceased.  Apparently you did not know the deceased personally and all of your knowledge of him came from what your wife had told you.

15You told Dr Ong that your intention on the day of the offence was to confront the deceased and tell him that your wife was now back with you.  You said you had no intention to harm the deceased but quickly became concerned about the deceased's intention with respect to you.  Dr Ong said that you made limited expressions of remorse for what you had done, although you also told him that you did not regret your actions in killing the deceased.  He considered that your personality was “primed to misconstrue incidents and react violently” and that you developed the belief that your victim intended to harm you, perhaps fuelled by your wife telling you of the deceased's dangerous reputation and his real or imagined danger to you and your family.

16You gave no evidence on your plea in this Court so that the only source of information available concerning your mental state is that described in Dr Ong's report admitted into evidence without objection by the Crown.  Dr Ong's opinion is that you meet the criterion for a diagnosis of major depression, although there is no evidence of any causal connection in your case between this condition and your killing of the deceased.  Indeed, Dr Ong appears to be of the opinion that your worsening mood and associated suicidal ideation is a post-offence condition, accompanied by a tendency to continue to justify your actions.

17However, Dr Ong is also of the view that your current mental health is likely to result in your finding your sentence more onerous than would a prisoner without such difficulties.  This opinion will be taken into account appropriately in fixing the length of your sentence.  Indeed, the Crown conceded as much.

18In its submission the Crown argued that your moral culpability for this offence is high.  It referred to Dr Ong's report and the statement you made to police immediately after the offence, “He was the only one I had to kill”.  The Crown also suggested that there may have been a degree of premeditation in your actions.  There is no doubt that your emotional state was extremely high at the time you first accosted the deceased at the service station.  However, whether you had at that stage formed an intention to kill him, I doubt.  It is more likely that that intention was formed as you became more and more angry.  Whether this is so or not, the brutality with which you killed the deceased is stark testimony to the intention you had at least by then formed.

19The emotional stress you were under at the time distinguishes your case from that of a planned, premeditated killing.  This is material to the evaluation of your moral culpability for what you did. 

20It was asserted on your behalf by your counsel and not contested by the Crown that in your early life you were exposed to violence from your father, who was said to have been an alcoholic.  As well as suffering yourself at your father's hands, you witnessed violence from him towards your mother and siblings.  It is also said that your father encouraged you to resort to physical violence to resolve interpersonal issues.  This background may help to explain, if not excuse, your resort to extreme violence in this case.

21Your plea avoided the necessity for any further proceedings, a utilitarian benefit even if the evidence against you was overwhelming.  There are before the Court a number of victim impact statements.  These statements speak of the horrendous effect your crime has had on a number of different people, friends and relatives of the deceased.  These statements have been given appropriate consideration in determining your sentence.  As well as those statements and the psychiatric report from Dr Ong to which I have referred, there are a number of references also before the Court from people who knew you and who were prepared to put forward their opinions of you.  They did not give evidence.  These references have also been taken into appropriate consideration.

22The sentence I am about to impose upon you must punish you for the terrible crime you have committed.  It must publicly denounce your criminality in taking the life of another.  It must be such as to deter likeminded people in the community from resorting to homicidal violence to resolve interpersonal differences, no matter how destructive or hurtful those differences may be.  It must also deter you from resorting to such violence in the future and induce you, as far as possible, to seek to rehabilitate yourself so that when you ultimately return to the community you will not again act in the way you did towards another human being.

23The sentence of the Court is that you be imprisoned for 19 years.  It is further ordered that you serve a minimum of 15 and a half years before being eligible for parole.  Had you not pleaded guilty to this crime and had been convicted by a jury verdict you would have been sentenced to 24 years imprisonment with a non-parole period of 20 years.  I declare that you have served a total of 210 days in pre-sentence detention, not including today, and I direct that that declaration and its effect be entered in the records of the Court.

24Remove the prisoner and adjourn the Court.