R v Guthrie
[2005] VSC 15
•4 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1513 of 2003
| THE QUEEN |
| v |
| JASON PAUL GUTHRIE |
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JUDGE: | OSBORN J | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 3-5, 8-12, 15-18, 22-25 NOVEMBER 2004; 1 FEBRUARY 2005 | |
DATE OF SENTENCE: | 4 FEBRUARY 2005 | |
CASE MAY BE CITED AS: | R v GUTHRIE | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 15 | |
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SENTENCE – Murder – Two counts.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie SC | Kay Robertson, Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr I. McIvor | Victoria Legal Aid |
HIS HONOUR:
Jason Paul Guthrie, you have been found guilty by a jury of the murders of John Gordon MacKay and Allen Raymond Thomas at Shepparton on 9 February 2003. At your trial you pleaded guilty to the murder of MacKay and not guilty to the murder of Thomas.
On the night in question you had engaged in some extended drinking, firstly of beer and then of bourbon and coke. At approximately 2.00 a.m. you went by car driven by your co-accused Nuttal to the premises at which your victims lived in Ashenden Street, Shepparton. Forcible entry was effected through the front door to the house and then MacKay was placed in the back seat of the car and Thomas was placed in the boot of the car. Both the victims were naked save for their underpants. You had already assaulted Mackay with a stick and Thomas was secured in the boot with violence which you describe in your record of interview.
Nuttal then drove you to Sand Bar No. 2 a secluded place on the banks of the Goulburn River, a short distance outside Shepparton. During the course of the drive you discussed what you intended to do and confirmed that you intended to kill your victims. On arrival at the river you dragged MacKay from the car and proceeded to beat him with a metal car lock which was described in evidence as being a "club lock". You struck MacKay many times and with considerable force, fracturing his skull, one of his arms, his ribs, his pelvis and one of his legs and inflicted a significant number of lacerations (6 alone to the scalp) and soft tissue injuries. Together with Nuttal, you then dragged him to the river and despite the fact that he was, in your own words, "nearly dead", threw him in the water and jumped on him in order to drown him. You then held him under the water "until the bubbles stopped coming up".
You then, with Nuttal, took Thomas from the boot of the car, dragged him into the river, and participated in holding him under the water as he struggled and made noises, until once again "the bubbles stopped coming up" and it was apparent Thomas was dead. You freely admitted to police your deliberate intention in holding both MacKay and Gordon under the water was to kill them.
Evidence of Dr Ranson establishes that the cause of the death of MacKay was "immersion in a man with multiple skeletal and soft tissue injuries". It is possible but not certain that MacKay was unconscious at the time of drowning as a result of the injuries he had received when you bashed him. The fractures to the skull and the fractures of other bones including the pelvis required the infliction of considerable force. Indeed, the deceased's body was left pock marked with the imprint of the steering lock with which you beat him bearing testament to the savagery of the assault to which he was subjected.
The cause of the death of Thomas was compression of the neck in circumstances of immersion. Post-mortem examination demonstrated damage to the internal structures of the neck and associated haemorrhaging, together with silt and sand in the lungs indicative of inhalation of river material. In Dr Ranson's view (which I accept) the ultimate cause of death was drowning.
Following the killings both you and Nuttal travelled to another location on the Broken River where you burnt clothing that might have implicated you in the killings by way of circumstantial evidence, and drank together further for a number of hours.
You were arrested at the home of friends some days later.
It is apparent from evidence concerning a prior incident in which you bashed MacKay in November 2002, that you held a grudge against MacKay, apparently arising out of false statements made by him concerning alleged use by you of a bankcard owned by Allen Thomas, while Allen Thomas was in custody during 2002, and also arising out of statements made by MacKay about Faye Thomas with whom, at one stage, you had an intimate relationship.
No sensible explanation for your conduct on the night of the killings was however advanced either to investigating police or at your trial other than your statement that you were "pretty pissed and off your head" and "just drunk and stupid". Whilst I accept that you had been drinking, it is apparent that you were still capable of instigating and engaging in an extended sequence of calculated, co-ordinated and deliberate acts which resulted in the murder of your victims and continued on for a number of hours thereafter.
Turning to your victims, neither Mr MacKay nor Mr Thomas had done anything which might be said to have provoked the episode of extended and horrific brutality which you inflicted upon them. Both were older and physically weaker than you and Nuttal. Both were sleeping innocently in their beds when they were taken by you on a nightmare journey to their deaths. Your conduct not only failed to respect the fundamental sanctity of human life but also failed to reflect any apparent sensitivity whatsoever towards the suffering of those you killed.
The victim impact statements filed in Court confirm that you have also as a result inflicted significant consequential emotional pain and suffering upon the families of each of your victims. They have been left with the permanent loss of loved ones in the most brutal of circumstances.
It can be seen that viewed objectively there are a series of circumstances seriously aggravating the gravity of your offences.
(a) The killings in which you engaged were senseless and unprovoked. No sensible explanation for the fact of such killings or their horrific nature has been advanced to the Court.
(b)The killings were the culmination of a sequence of deliberate and extended acts on your part on the night in question.
(c)From the time your victims were forcibly taken from their beds and placed in the car, they must have suffered extreme terror.
(d)You initiated the violence at the river and MacKay was subjected by you to a brutal beating of truly savage ferocity and protracted extent.
(e)Thomas was kept locked in the boot waiting for his execution in horrifying circumstances.
(f)The drowning of both MacKay and Thomas was done with callous, calculated viciousness totally devoid of any apparent feeling for your victims.
(g)At the time Thomas was drowned he was conscious and resisting as you describe in your record of interview.
I should add that each of the aggravating circumstances which I have identified can be demonstrated by reference to the chilling matter of fact account of events given by you in your record of interview or alternatively inferred from the matters which you describe in that account. I am satisfied of each of them beyond reasonable doubt.
Conversely, there is little in the circumstances of the offences which can be said to mitigate in your favour save for the fact as I have said that you had consumed a considerable amount of alcohol, and this might be said to reduce your moral culpability somewhat and make your actions more explicable to some limited extent. Although it could not of course justify your conduct in any underlying sense.
I turn then to your personal circumstances.
You are aged 34, having been born on 9 April 1970. Reports submitted to me from Mr Bernard Healey, Clinical Psychologist and Dr Danny Sullivan, Consultant Psychiatrist, confirm the following matters that bear on your personal circumstances and background:
(a)You come from an unhappy family background being one of a very large family born to parents who engaged in excessive drinking and domestic violence;
(b)One of your brothers was killed at the age of 28 when you were 16 and this greatly affected you;
(c)You attended school until year 11 and have since worked in a series of labouring jobs;
(d)You married in your late teens but after some 10 years the marriage broke down (apparently for reasons associated with alcohol problems). You have two sons now aged 8 and 9. You are very concerned at the impact your convictions for murder have had and will have upon your sons' lives.
(e)You are of relatively low intelligence as tested by Mr Healey and have low self esteem.
(f)You have a long history of excessive alcohol and amphetamine use and were an alcoholic at the time of the offences in the opinion of Dr Sullivan and Mr Healey.
(g)There is no indication that you were affected by delusional beliefs or psychosis at the time of the killings.
(h)You have been involved in a number of accidents and fights over the years but have only one prior conviction arising out of the breach of an intervention order.
Dr Sullivan is of the opinion that poor judgment in conjunction with alcohol use leading to disinhibition and dysregulation of behavioural control appears to have been a significant factor in your offences. He further states:
"There was no indication of significant mood disorder although it would appear that a precipitant to Mr Guthrie's alcohol dependence was not only his family history of alcohol problems, but also the difficulties he had in coping with the death of his brother at a crucial development stage in his teens. In such situations it may well be that alcohol use provided a maladaptive coping stratagem for Mr Guthrie's distress. Alcohol use is associated with depression, which may have predisposed to amphetamine use, causing temporary mood elevation, albeit with complications such as paranoia and agitation.
Mr Guthrie's progress in custody seems to have been stable and unremarkable. There is no current indication for psychiatric intervention, although it is possible that he may in the future require counselling or other interventions related to adjustment to his situation."
I accept this opinion in general terms save for any suggestion of ingestion of amphetamines on the night of the offences. This is not adequately established by evidence.
By reason of the provisions of the Sentencing Act 1991 ("the Sentencing Act"), I am required to treat you as a serious violent offender for the purposes of the sentence I must impose for the second murder of which you have been found guilty. As such I must regard the protection of the community as the principal purpose for which the sentence is imposed. It must be said, however, that the senseless and protracted brutality of the two murders in which you engaged was such that a conclusion to this effect would be compelling in any event and that the Sentencing Act thus emphasises a factor which would necessarily be at the heart of the sentencing process.
The Court must also manifest the denunciation by the community of the brutal savagery of your conduct and in so doing both punish you to an extent and in a manner which is just in all the circumstances, and signal the seriousness of your offences as a deterrent both to you and to others.[1]
[1] The provisions of s.6D of the Sentencing Act do not render proportionality and other considerations irrelevant. (R v Connell [1996] 1 VR 436)
The circumstances which may be said to count in your favour as potentially mitigating penalty are limited but comprise the following:
(a) expressions of remorse to Mr Healey and through your counsel to the Court;
(b)your plea of guilty to the murder of MacKay albeit that such plea was not entered until preliminary argument had commenced at your trial, was entered in circumstances where the Crown case was overwhelming, and was entered in circumstances where you continued with a plea of not guilty to the murder of Thomas so that in the event, no material shortening of the trial occurred;
(c)your alcoholism at the time of the offences (which is corroborated both by statements in your record of interview and your very appearance videotaped at the time of such interview compared with your current appearance); and
(d)the possibility that if you live in a stable environment and learn to manage substance abuse you may mature and progress towards rehabilitation.
As against the above matters the principal aggravating factors associated with the offences are those objective circumstances of the killings to which I have already referred and in particular their senselessness, savagery and brutality.
In this horrific context it must be said that the matters which I have identified as mitigating circumstances are necessarily of limited and qualified weight. Nevertheless they are sufficient in my view to warrant firstly, the imposition of fixed terms of imprisonment rather than the life sentences for which the Crown has called and secondly, for providing a meaningful opportunity for parole. I have reached this conclusion in part because I accept on the basis of the reports tendered to me that your alcoholism and other substance abuse developed in the context of a difficult home environment and that there are some prospects of long term rehabilitation.
Having said this unless you develop self control, self respect and respect for others there is little prospect that you will do other than serve your full sentence. It will be up to you to prove that you can mature or the opportunity for parole will be illusory.
In my view the circumstances involved in the killing of MacKay and in particular the savagely brutal beating you inflicted on him prior to his death require a differential in the sentences to be imposed for the two murders. The extreme gravity of your conduct outweighs the benefit to which you might otherwise be entitled for your plea of guilty[2] (which benefit must in any event be substantially qualified by the circumstances which I have already noted).
[2]Cf R v Giles [1999] VSCA 208 per Batt JA at [20] with whom Phillips CJ and Chernov JA agreed; and R v Goodall [2000] VSCA 106.
In forming a view as to the cumulative effect of the sentences I propose to impose, I must have regard to the principle of totality. Whilst the second murder demands an additional penalty, because it involved an offence of such gravity that total concurrence would fail to do justice[3], nevertheless there is an exponential element in the burden of such a sentence insofar as it falls to be served cumulatively and at an age where you will be entering mature years.
[3]R v O'Rourke [1997] 1 VR 246 at 253
Mr Guthrie you have participated in the senseless and brutal destruction of two human lives with such mindless ferocity that I must impose a penalty upon you which provides for the protection of the community and underlines the commitment of the community and the court through which it speaks to defend the sanctity of human life.
Mr Guthrie, having regard to the above matters and to the provisions of s.5 and s.6D of the Sentencing Act I sentence you to:
27 years' imprisonment for the murder of MacKay; and
25 years' imprisonment for the murder of Thomas.
I direct pursuant to s.6E of the Sentencing Act that 5 years of the second sentence be served cumulatively upon the first sentence, resulting in a total effective sentence of 32 years. I fix a non-parole period of 26 years.
I direct that it be recorded pursuant to s.6F of the Sentencing Act that you were sentenced with respect to the murder of Thomas as a serious offender. I declare pursuant to s.18(4) of the Sentencing Act you have already served 723 days in custody.
For completeness I record that it is implicit in the above that I have formed the view that it is not necessary to impose a sentence longer than that which is proportionate to the gravity of your offences in order to achieve the purpose of s.6D of the Sentencing Act.
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