R v Green
[2002] VSC 593
•17 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1441 of 1999
| THE QUEEN |
| v |
| GRAEME LESLIE GREEN |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2-6, 9-11, 13, 16-18 SEPTEMBER 2002 | |
DATE OF SENTENCE: | 17 DECEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. GREEN | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 593 | |
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MURDER – Sentence – Re-trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Morgan-Payler QC with Ms Quinn | Office of Public Prosecutions |
| For the Accused | Mr S. Langslow | Kerry Clancy |
HIS HONOUR:
Graeme Leslie Green, you have been found guilty by a jury of the murder of Tracey Lianne Holmes on Friday 28 August 1998 at Wangaratta.
At the time of her death, Ms Holmes was only 24 years of age and was a happy positive young woman, who resided in Albury with her three-year-old son. You were 23 years of age, having been born on 6 February 1975. You are now 27. You are and were a single man.
On Friday 28 August 1998, you had been released at 11.30 a.m. from Beechworth Prison. You had been serving a two-month prison sentence for theft and related offences. You intended to go to your father's home at Nagambie. Having been released from prison, you cashed in your Centrelink cheque at a local bakery and took a bus to Wangaratta. Upon your arrival in Wangaratta, you went to a local hotel, where you commenced gambling on the Tabaret gaming machines and also consumed some alcohol.
At 3.15 p.m. you won some $228. Shortly following this you went to a local menswear store and purchased some items of clothing. Then just before 4 p.m. you went to the Gateway Motel, Wangaratta and booked in overnight. You gave your correct name and details and produced your birth certificate for identification. You were allocated Room 202.
Immediately after entering your room at the motel, you commenced making telephone calls for the purpose of obtaining the services of a call girl. You had made similar earlier calls that afternoon. You initially called State Executive Escorts in Seymour, which calls were automatically redirected to its main office at Shepparton. When you were unable to make satisfactory arrangements through that service, you telephoned Border Escorts at Albury.
Ultimately, arrangements were effected by which Ms Holmes, who worked as an escort at that agency, attended in Wangaratta at 8.40 p.m. at your motel room. She was driven down from Albury by the escort agency's driver, one Mr Gallus, who also acted as security. He stayed in Wangaratta, remaining contactable by mobile phone in order to collect Ms Holmes at 9.40 at the completion of the time booked by you.
During the time that you had been at the Gateway, you had been drinking with other young people in the cocktail bar, but it is apparent that you did not drink as heavily as some of your companions, for whom you shouted drinks. In any event, you duly returned to your room prior to the arrival of Ms Holmes at the scheduled time.
After Ms Holmes had been with you for approximately 20 minutes, she telephoned Border Escorts, Albury, to arrangement an extension of the booking from one to two hours. There was nothing in the content or tone of her telephone call, to indicate any perception of danger on her part. Moreover, it is clear from the evidence of a number of witnesses, that on that evening, she was in a positive and happy state. She had not consumed alcohol and she was not a drug-taker.
At about 10.20 p.m. the manager of the motel heard a loud thud. At 10.40 p.m. Ms Holmes did not meet the driver, Mr Gallus, at the front of the motel as arranged. Mr Gallus immediately began enquiring and searched for her. With the manager of the hotel, he entered Room 202 at 10.50 p.m. Ms Holmes was found lying dead on the floor. Her body was naked and she had been manually strangled to death by you.
You had fled the room via the window, taking with you your belongings and a number of her belongings. You then went back to the same hotel you had been at that afternoon and played the same gaming machine. You gambled for some time and at one stage won $562. You bought a pizza and you rang your mother and, it appears, went to another local hotel. Ultimately, you walked to the railway station, vomited and waited there for early morning transport.
At 5.30 a.m. on the morning of 29 August 1998, you were apprehended by local police. No one other than you knows exactly what happened in Room 202, between you and Ms Holmes. However, when you were asked about her death by the police, the video-taped record of interview made on the morning after death records that you stated that Ms Holmes was lying on her stomach on the bed in the motel room, when you grabbed her throat from behind and started to choke her. She started to scream and got off the bed. She was at the end of the bed when you grabbed her again by the neck and choked her hard.
You told the police you grabbed her instinctively the second time because it was the only way to avoid her getting away and you were in trouble for grabbing her by the neck and choking her hard in the first place. You said: "She then fell on the floor on her stomach." You sat on her back and grabbed her by the front of the neck and choked her to death.
You were asked the following questions by the police and gave the following answers: "Okay, and how hard did you have to squeeze her?" "I know it was hard because my hands were hurting, so - - -" "And what part of her neck were you squeezing hard?" "Just around the front" "Were you squeezing as hard as you could?" "Yeah." "And what were you trying to do, when doing that?" "Well, I was trying to - to choke her death." "Trying to choke her to death?" "Yeah." "And is there any reason for you wanting to do that?" "Well, there's - there's no reason but I had to do it, just to get out of the trouble spot, she would have got away, she would have run out the door and that." "What were you thinking she might have done if she got out of that motel room?" "She - she would've gone out - she would've just screamed and probably run to the reception or something."
I accept that the core admissions made by you in the record of interview were true and accurate, as I believe it is clear that the jury did in this matter. It is clear on the whole of the evidence that although there may have been some struggle with Ms Holmes, it was you that precipitated this struggle and it was you that completed it; by deliberately strangling her with your bare hands. You choked her with no regard to the sanctity of life of another human being.
There is a chilling absence of explanation, a nothingness at the heart of your conduct, and at the core of the explanations you have sought to give for that conduct since the killing.
I accept that at the time you were affected by alcohol but it is clear from your subsequent conduct that you were not significantly intoxicated. You carefully hid both your belongings and those of the deceased which you had taken from the motel room in different locations after you had left the motel room. You then went back to the hotel at which you had previously gambled and indeed, to the very machine at which you had won money. You dropped your key in the laneway outside the hotel and when apprehended by the police in the early hours of the following morning were able to find the belongings hidden by you and the key lost by you.
Furthermore, you had a precise memory of a very large number of details from the day and night before, including many after the killing.
You are still a relatively young man, then aged 23 and now 27. You have a number of prior convictions but none for substantial violence. Those prior convictions show consistent law-breaking by you but not of a violent character. The convictions are primarily for matters of dishonesty. Their circumstances were helpfully explained by your counsel, Mr Langslow, in the plea that he made to Cummins J.
I am satisfied on the basis of the eloquent plea made on your behalf by Mr Langslow today and the evidence of a distinguished psychiatrist, Dr Walton, in the form of his reports dated 18 July 2000 and 17 October 2002, being Exhibit 1 on the plea, that your prior convictions, in part, reflect your unhappy and lonely youth. It seems clear that the separation of your parents when you were 17 years of age probably contributed to your problems in late adolescence. At the time of the offence you were still a lonely and unhappy young man who had not matured.
However, you suffer from no psychiatric illness or psychological disorder and are of normal intelligence. You have remorse for the death of Ms Holmes but I observe insufficient remorse to acknowledge your guilt with respect to her murder.
Dr Walton's report of 17 October 2002 expresses the opinion, which I accept, that you have undergone a degree of psychological maturation over the last two years. He further indicates that you have expressed a laudable aspiration towards reforming yourself and ultimately contributing usefully to society.
The letter of Mr Waley and the details supplied by your father to Mr Langslow, corroborate these matters and confirm that you do have the potential to do good for others and that you have already positively contributed to prison programs for the benefit of others.
Unfortunately, there has been one previous partially completed trial of this crime and one previously completed trial. The first trial in Wangaratta commenced in October 1999 but was unable to be completed. The second trial in June 2000 resulted in a verdict of guilty of murder and Cummins J sentenced you in August 2000 to a term of 18 years' imprisonment and directed you serve a minimum term of 14 years' imprisonment before becoming eligible for parole.
Subsequently, the Court of Appeal set aside your conviction and ordered a retrial, which was duly conducted in September of this year, resulting again in the verdict of guilty, as a result of which you come before me for plea and sentence.
The retrials occurred through no fault of yours and no doubt the strain over that lengthy period of not knowing your fate has been a burden to you and I take that into account into considering penalty.
However, it requires little imagination to understand the terrible burden these repeated proceedings, including the evidence you have given in those proceedings, has been to the family of the deceased and, in particular, her mother. I have read the very moving victim impact statements in this case and I acknowledge to the deceased's family and in particular her mother, the burden placed upon them by the repeated judicial proceedings which have occurred in this case and which I trust now are at a finality.
I hope that finality will assist the family to find closure and resolution of this tragedy in their lives and in turn to find hope for the future in the life of the little boy left behind after the death of Ms Holmes.
There are a number of exacerbating elements in this case: first, you killed a young woman who was a good daughter and mother and a young woman who was full of life and had most of her life before her. As your counsel acknowledged to me, you have caused profound sadness and grief to her family. The killing of Ms Holmes was totally unjustified.
Second, the circumstances of the killing and your conduct thereafter, were particularly callous. After an initial confrontation you prevented your victim from escaping and you deliberately strangled her with your bare hands until she was dead. You left her naked body on the floor, stole her bag and money and went to a hotel where you gambled. More significantly, perhaps, you did not seek help for her as you might have done at the time of or after fleeing the motel.
Insofar as matters in your favour are concerned, the following must be considered: firstly, I accept that your crime was not planned or premeditated and that when you booked into Room 202 and requested the attendance of Ms Holmes you did not plan or intend any violence towards her. Secondly, you were at the time a young man with a troubled background but no demonstrated prior propensity to violence.
Thirdly, your numerous prior convictions for offences of dishonesty are, in part, explained although not justified by your troubled and lonely youth. Fourthly, on the day and night of the murder you had been drinking and I accept that alcohol may have affected your behaviour. In this regard I note that you had had problems with alcohol in the past, as is indicated by the orders made in sentencing you on previous occasions.
As I have stated, the trial which proceeded in September of this year was a retrial consequent upon the overturning by the Court of Appeal of a previous conviction. Although I have an independent discretion as to the appropriate sentence which I should impose and although I must have regard to all the relevant principles of sentencing, it is clear from authorities such as R v. Chen (1993) 2 V.R. 139 that the fact and practical effect of the sentence previously imposed upon you by Cummins J are matters I should take into account.
In my view it is clear I should not impose a higher sentence unless there are specific reasons for so doing. It is in the public interest that the process of appeal with respect to any unfairness in a trial should not ordinarily carry with it the risk of a heavier sentence upon retrial, nor should there be any appearance of punishment for the fact of appeal. In the present case, there are no special circumstances which in my view would justify a heavier penalty, than that imposed by Cummins J. But conversely I am not of the opinion that that penalty was in any way excessive, having regard in particular to the brutal and callous nature of this murder.
In reaching this conclusion, I have carefully considered all the matters which have been ably advanced on your behalf by Mr Langslow. In particular I have concluded that although, as I have indicated, I accept the matters set out in the recent supplementary report of Dr Walton and the letter of Mr Waley, I do not regard those matters as justifying a reduction in sentence.
Further, although I accept that I should not attribute to you the initial motive for violence of which Cummins J was satisfied, nevertheless, your conduct was both totally unjustified and brutal in its persistence.
In regard to the observations of Dr Walton and Mr Waley as to your rehabilitation, I note that Cummins J accepted that there is good in you, which has been demonstrated by your commendable efforts in prison while awaiting trial and that you have positive prospects of rehabilitation, which should be encouraged by facilitating a substantial period of parole. I concur in these conclusions.
He also recommended and I reiterate his recommendation, that you be held in a prison of less severity than Barwon Prison. You have now served 1572 days in pre-sentence detention. Pursuant to s.18(4) of the Sentencing Act 1991, I declare the period of 1572 days already served under the sentence I impose and I so certify.
Mr Green, for the murder of Tracey Holmes, I sentence you to 18 years' imprisonment. I direct that you serve a minimum term of 14 years' imprisonment before you are eligible for parole. Mr Green may be removed.
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