R v Hamilton

[2011] VSC 77

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0021 of 2010

THE QUEEN

v

MARC HAMILTON

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2011
DATE OF SENTENCE:	18 February 2011
CASE MAY BE CITED AS:	R v Hamilton
MEDIUM NEUTRAL CITATION:	[2011] VSC 77

CRIMINAL LAW – Murder jury verdict – Deliberate discharge of firearm in the course of escalating violence directed to deceased - Disproportionate response where the deceased posed no threat - Limited applicability of Verdins and Tsiaras principle – Sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Mark Rochford SC	Office of Public Prosecutions
For the Accused	Mr Campbell Thomson	Galbally and O’Brien

HER HONOUR:

1. Marc Hamilton, you have been found guilty by jury verdict of murder and have admitted prior convictions.

1. In July 2009, you were living with your then girlfriend, Alicia Wilson, at 6 Elizabeth Street, Mount Evelyn.  Tim Fleming was an associate of yours and he visited you on the afternoon and evening of 26 July, as did two of your friends, Kevin Hepburn and Ray Ablett.  It appears that you and Mr Fleming were on friendly terms during that visit.  Mr Fleming left your house and returned to where he was living, and shortly thereafter Alicia Wilson visited him and received some cannabis from him, apparently in return for a small bag of amphetamine that you had given him.  Mr Fleming was upset about the quality of the amphetamine and he rang you saying that he wanted to see you.  It was arranged that he should come back to your house.  Jason Glenn drove him, but stayed in the car and took no further part in the events that unfolded that night.

1. What then took place was recounted by Kevin Hepburn, Ray Ablett and Alicia Wilson and, except in respect of what you said at the time before the gun was discharged, their evidence was not substantially challenged and, indeed, your evidence was consistent with many aspects of their evidence.

1. The front door of your house entered directly into the loungeroom.  Mr Fleming knocked on the door.  You opened it and he came in and spoke briefly with Mr Hepburn, and then Mr Fleming threw a small bag of amphetamine at you, complaining that the contents were “shit” and saying that he would be disgusted to sell it.  You replied “It does me all right”, and then you immediately got up from where you were sitting, crossed over to Mr Fleming and punched him possibly up to four times to the face.  I accept that there was some grappling at this point which was described during evidence as “wrestling”, although I do not accept your assertion that you went to the ground in the course of a wrestle.  However, Mr Fleming did, as he was left crouching or kneeling between the armchair and the wall heater.  He appeared to Mr Hepburn to be stunned and dazed.  You invited Mr Hepburn to hit him, but he declined, saying it was not his fight.  You then got a Samurai sword from behind the front door and removed it from its sheath and struck Mr Fleming in the area of his right shoulderblade.  Ms Wilson did not see the sword produced and Mr Hepburn and Mr Ablett did not see it connect with Mr Fleming, but clearly it did, and with sufficient force to cut through a flannel top and two T-shirts and penetrate to a depth of five millimetres. Dr Lynch, the pathologist, described this as an incised injury which went through skin, underlying tissue and into the shoulder blade, although you maintained that you only cut him with no more force than the weight of the blade.

1. You then threatened to cut Mr Fleming’s knees off, but Mr Hepburn intervened by saying “Your missus doesn’t need to see this”, so you dropped the sword and went to your bedroom, saying words to the effect that you were going to get your gun.

1. You returned with a Mossberg 12 gauge shotgun.  You manipulated the bolt, ejecting a cartridge, which moved another cartridge into the breach.  You then advanced towards Mr Fleming and, according to Mr Hepburn, saying words to the effect that “This one’s for you”.  Forensic evidence established that you were between 12 to 14 inches from Mr Fleming when you fired the gun.  The bullet passed from left to right at a 45 degree angle, entering Mr Fleming near his left ear and exiting at his right throat.  Death was instantaneous.  You then threw the gun to Kevin Hepburn, telling him to get rid of it and to get out of there, and you gave him an ejected shell.  You threw a bag with gun parts in it to Ray Ablett, also telling him to leave.  Ms Wilson, who was cradling her puppy dog, saw very little of the events from where she was sitting on the couch but she, too, left the house.  You remained, and in your evidence you said that you were shocked and panicked.  You checked Mr Fleming for a pulse and checked to see if you could discern a breath.  You washed yourself of blood and took three Valium tablets, and you put a blanket over Mr Fleming.  At some time shortly before 12.45am, you rang “000”.  You spoke to a Sergeant Gillies and told him that Mr Fleming had been shot during a struggle at the front door, during which time the gun held by Mr Fleming accidentally discharged.  On any view of the evidence, including your own sworn testimony, this account was false.  While you were on the phone to Sergeant Gillies, uniformed police officers arrived and you were taken into custody and conveyed to the Mooroolbark Police Station.  Later that morning, you were seen by Dr Crowe, and again later in the morning you were examined by Dr So, who assessed you as fit to be interviewed and took photographs of various abrasions on your knee associated with tangential blunt force trauma from a graze or scratch which could have resulted from a fall or fracas.

1. You were subsequently interviewed at the Ringwood Police Station and in that interview you gave a detailed and what the prosecutor described as an elaborate account of the circumstances of the gun accidentally discharging, which account, apart from the contention that the gun accidentally discharged, you admitted on oath was a lie.

1. You maintained before the jury that your intention in punching Mr Fleming and then cutting him with the Samurai sword was to scare him into leaving the house, and that when he did not leave, you then got the gun, intending to scare him away.  You told the jury you did not know that the gun was loaded.  You advanced towards Mr Fleming and you then pointed the gun at a distance close enough for him to push the gun away, which you say he did as he attempted to stand up, and in doing so he knocked the barrel of the gun and it accidentally discharged, and it was in those circumstances that Mr Fleming met his death.  By reason of their verdict, the jury rejected your account beyond reasonable doubt and were satisfied that you intentionally pulled the trigger with necessary murderous intent.

1. A post mortem conducted by Dr Matthew Lynch on 27 July determined that the cause of death was a gunshot wound to the neck.  His examination revealed that Mr Fleming had suffered a broken mandible and nasal bone, and a cut to his hand which was not typical of a defensive injury, and a cut to the right scapula.  The direction of the bullet was from left to right, posterior to anterior; at an angle of 45 degrees – it resulted in damage to major blood vessels and severed the upper part of the spinal cord, resulting in death, which, as stated previously, was instantaneous.

1. You are 29 years old and single.  You have one brother and two sisters.  At the time of this offence, you were in a relationship with Alicia Wilson for three years.  The relationship ended with these events, and a Victim Impact Statement tendered on her behalf details the anxiety she has suffered from being a witness to Mr Fleming’s death.

1. A report by forensic psychologist, Ms Pamela Matthews, dated 16 November 2010 was tendered in evidence on your behalf as Exhibit 2.  Ms Matthews details your personal history and domestic circumstances.  Your father has served successive periods of imprisonment for murder and manslaughter, and is dying of cancer.  It is said that he was unpredictable in his moods and violent towards you and your mother.  Your brother and two sisters were each born of different unions.  One stepfather, the father of your brother, was an aggressive drunk who was violent towards you and your mother.  Another stepfather, the father of your youngest sister, was also an aggressive drunk, but nonetheless you developed a genuine attachment to him.  He offered you work as a brickies labourer and then an apprenticeship.  Ultimately, you left his employ because of his aggressive attitude towards you and you subsequently gained work with a commercial building contractor.  Following his death in a motor cross accident which you witnessed, your mother formed a relationship with another man who was also said to be a violent alcoholic.  Given this history, Ms Matthews concluded:

“While the response to murder appears to be disproportionate to the actual precipitating events in this matter, it is Mr Hamilton’s collective history of abusive, volatile, unpredictable male attachments characterised by acute fear and anticipation of violence, coupled with the belief that only retaliatory or pre-emptive violence could protect him, that psychologically underlies the behaviour before the Court”.

1. Ms Matthews concluded that you exhibit symptoms of borderline personality disorder.  In a supplementary report dated 6 February 2011 and tendered as Exhibit 4, Ms Matthews described the degree of your personality pathology as fluctuating low to moderate, given other stability factors in your life at any particular period and increasing maturity and age.  Ms Matthews further opined that she assessed your future risk of violence as low to moderate.

1. Mr Thomson, who appeared on your behalf, submitted that by reason of this diagnosis, and its relationship to your offending as explained by Ms Matthews, the principles of Verdins are here applicable.  The Crown did not dispute this submission, but submitted that the principles are applicable in a very limited way and did not in this case affect the appropriate weight to be given to considerations of general deterrence.  In my view, this submission must be placed in the context where there is no evidence of Mr Fleming being verbally or physically aggressive or threatening towards you such as might give rise to your conditioned response, borne of your childhood experiences.  In my opinion, the principles of Verdins’ case are to be given very limited application, for clearly you do suffer from a tendency to overreact and there can be no other explanation for your conduct, because there was very little, if anything at all, in Mr Fleming’s behaviour which could be said to prompt and justify such a violent response from you.

1. Apart from some Children’s Court matters, you appear have 34 convictions from five court appearances secured between 2004 and 2008.  These are mainly driving offences, although your criminal history does include three prior convictions for making threats to kill, which convictions appear to confirm your tendency to overreact and respond inappropriately.  You have otherwise no convictions for offences of violence, although you have, on an earlier occasion, spent four months in gaol in respect of driving offences.  You reported to Ms Matthews a history of drug use since you were 15, including daily marijuana use.  More recently, you used amphetamines and, indeed, this murder occurred in circumstances where you were a distributor of amphetamines and Mr Fleming your supplier.  You have also, over the years, abused medication and at present you are prescribed methadone, apparently for pain management, and Avanza and Valium for anxiety.  You are presently within the prison system undergoing regular counselling.

1. You were educated at Heathmont Secondary College.  You left school mid-way through Year 8 and commenced working with your stepfather as a bricklayer.  You have also completed a certificate in architectural design and, more recently, worked as a greenkeeper at the Heritage Golf Club, Chirnside Park.  At the time of this offence, you were unemployed.  While on remand, you have occupied yourself with various courses, including completing a drug intensive education program, and you propose further studies in the field of architecture.

1. Various character references were tendered on your behalf.  You are described therein as trustworthy, honest and reliable, courteous and well mannered.  You are also described as having a volatile temper from an early age and that you were acutely aware of your volatility.  A number of testimonials, as does Ms Matthews’ report, speak of your remorse and sadness at having killed Mr Fleming, although you continue to maintain that the discharge of the gun was an accident.  Nonetheless, I accept that you are remorseful and I accept that, by reason of your plea of guilty to manslaughter made on arraignment, that you acknowledge your responsibility for Mr Fleming’s death although you do not acknowledge your responsibility for his murder.

1. Your counsel has described your prospects for rehabilitation as moderate and it is to be hoped that with growing maturity and insight into your personality difficulties and abstinence from drugs, your prospects for rehabilitation will be further enhanced.

1. The maximum penalty for murder is life imprisonment.  Clearly, you have committed the most serious of offences.  Your actions have been described as an overreaction to the situation which presented itself to you, and while no doubt this is the case, the fact of the matter is that all Mr Fleming did was to complain about the quality of the amphetamine he said you had diluted.  From that point, you overreacted and you responded with escalating violence, resulting in the production, loading and deliberate firing of the gun and, at the time you did so, the jury were satisfied that you intended to kill or at least really seriously injure Mr Fleming.  In these circumstances, this murder is properly to be described as utterly senseless and the product of a violent response to an innocuous remark.  At no time did Mr Fleming respond physically or verbally to you.  He remained passive throughout, possibly dazed and concussed, and posed no threat to you.  In these circumstances, the jury rejected your contention that your intention at all times was to scare Mr Fleming and, in doing so, to force him to leave the house.  I propose to sentence you consistently with the jury’s verdict that you deliberately fired the gun with the intention to kill or at least to cause really serious injury to Mr Fleming.

1. At the time of his death, Mr Fleming was 33 years old.  He was the father of two boys, now aged ten and seven.  Mr Fleming had separated from his partner and was living in a caravan at his parents’ home.  He had been involved in a major car accident in 2005, which had resulted in his breaking his neck.  He had been hospitalised for two weeks and required to wear a neck halo for 20 weeks.  At the time of his death, he was not working, he was awaiting further surgery and was said to be optimistic about his future.  Victim Impact Statements were made by his grandmother, mother and father, brothers and sister.  They speak of his compassionate and loving nature, and his own difficulties in life.  They also speak of the grief, loss and pain that they have endured as a result of your senseless actions.  No sentence this Court can impose can restore to them their loved one, nor can it diminish their grief and sadness.  As Mrs Fleming said in her Victim Impact Statement which she read to the Court:  “The senselessness and callousness of his death hit our whole family really hard”.

1. In sentencing you, I take into account your age, your difficult and violent childhood and adolescence, your diagnosis of borderline personality disorder and the relationship of that condition to your criminal conduct, and the limited applicability of the principles of Verdins’ case.  I take into account also that you are genuinely remorseful and that you pleaded guilty to manslaughter before the jury.  I take into account also that with the continued support of your mother, your rehabilitation, especially if you deal with your impulsivity towards violence, is not without hope and may be said to be achievable.

1. Against these matters stand the nature and gravity of the offence here committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and specifically deter you from re-offending in a like manner, even allowing for the principles of Verdins’ case, and give effect to general deterrence so that like-minded members of the community will know that those who murder can expect to suffer condign punishment.

1. Accordingly, for the crime of murder, you are convicted and sentenced to 23 years and I order that you serve a period of 18 years before becoming eligible for parole and I declare that you have already served 482 days of pre-sentence detention.