R v Hartwick, Hartwick & Clayton
[2003] VSC 63
•13 March 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 4121 of 2002
| THE QUEEN |
| v |
| JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON |
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JUDGE: | SMITH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16-31 October 2002, 4-29 November 2002, and | |
DATE OF SENTENCE: | 13 March 2003 | |
CASE MAY BE CITED AS: | R v Hartwick, Hartwick and Clayton | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 63 | |
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Sentence – murder – complicity – concurrency.
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APPEARANCES: | Counsel | Solicitors |
| For John Douglas Hartwick | Mr J. Desmond | McNamaras |
| For Lisa Jane Hartwick | Mr S. Langslow | Stary Myall |
| For Celia Kathleen Clayton | Mr L. Hartnett | Patrick W. Dwyer |
| For the Crown | Mr G. Horgan S.C. with Mr D. Hallowes | Kay Robertson, Solicitor for Public Prosecutions |
HIS HONOUR:
The convictions
John Hartwick, Lisa Hartwick and Celia Clayton have been convicted on Count 1 of murdering Stephen Borg and on Count 2 of intentionally causing serious injury to Paula Rodwell.
The factual basis for sentencing – positions of the parties
As to Count 1, the Crown submission is that the three prisoners decided to go from No 3 Karingal Drive to No 37 Karingal Drive to inflict really serious injury on Stephen Borg. While statements had been made about killing people, the Crown did not submit that the three left No 3 Karingal Drive actually intending to kill Stephen Borg. It conceded that such a conclusion was unrealistic. The Crown further submitted that at 37 Karingal Drive, the three took part in an attack on Stephen Borg in which the role of each was essentially indistinguishable from that of the others. The Crown maintained the concession made at the trial that it could not say who struck the fatal blow.
As to Count 2, the Crown submitted that the prisoners should be sentenced on the basis that Celia Clayton struck a blow to the head of Paula Rodwell when she opened the door to them on their arrival at 37 Karingal Drive. The others, it said, were found guilty of this count on the basis that they aided and abetted Celia Clayton to commit the offence.
As to Count 1, counsel for John Hartwick did not advance a different analysis but emphasised the fact that the Crown had not proved beyond reasonable doubt that John Hartwick or any of the other accused fatally stabbed Stephen Borg. Generally he submitted that the events giving rise to the charges were the result of an extremely provocative act, namely, the deliberate act of Stephen Borg in driving a motor vehicle into a car borrowed by Celia Clayton and it, in turn, into a car belonging to John Hartwick at a time when Stephen Borg was out of control because of drugs. He submitted that if that incident had not occurred the events in question would not have occurred. He also submitted that John Hartwick should be sentenced on the basis of the facts put in cross-examination to Paula Rodwell. In particular, he submitted that the Court should find that John Hartwick was attacked by Stephen Borg who was armed with a knife, that they fought each other at or near the front door, “dagging” at each other, and that this continued for some 30 seconds or so before the two women joined the fight. He argued that it should be found that Stephen Borg was getting the better of John Hartwick in the initial engagement and that was why he called to the women for help. He submitted that the attack from Borg with the knife was a further act of provocation which affected the culpability of his client. He submitted also that it should be found that John Hartwick suffered two significant wounds in the exchange. He said that it was not a very well planned operation which lasted no more than 10 minutes. It was one almost certain to be discovered. He submitted that it was not cold-blooded but rather a killing that resulted from anger and loss of control caused by the provocative actions of Stephen Ball. Counsel conceded, however, that the jury verdict indicated that it had rejected the evidence relied upon to suggest that John Hartwick had been a peacemaker.
As to Count 2, John Hartwick’s position at the trial was that it was Celia Clayton who struck Paula Rodwell and that he and Lisa Hartwick had immediately stopped any further assaults and had gone to Paula Rodwell’s assistance after she had been struck. I proceed on the basis that that position is maintained.
Counsel for Celia Clayton addressed the Court before counsel for Lisa Hartwick. He submitted that on Count 1, the proper interpretation of the jury verdict was that the three prisoners agreed to assault Stephen Borg but not to kill or cause really serious injury to him but with foresight that death or really serious injury might occur. He conceded that sentencing should not be carried out on Count 1 on the basis that any prisoners aided and abetted.
He submitted that the murder was, therefore, at the lower end of the scale of seriousness and that a minimum term of nine to eleven years was appropriate. Counsel said that Celia Clayton, in light of the jury verdict, agreed with the others to assault anyone who was at 37 Karingal Drive and contemplated that one of the three might kill or do really serious injury. Counsel submitted that, on the evidence, Celia Clayton at No 3 Karingal Drive had a knife and was seen with a knife on two occasions, she was speaking of revenge and making threats. On the other hand, the evidence was that she had to be sent for. Counsel submitted that what occurred was not a planned thing. There was a degree of impulsivity in it and in Celia Clayton’s actions.
As to Count 2, counsel for Celia Clayton submitted that his client still denied striking the blow in question. He submitted that the contrary case depended upon accepting the evidence of Paula Rodwell and that her evidence should not be accepted. Counsel was reminded that the evidence of the injury pointed to a blow from a blunt instrument and so supported Paula Rodwell’s evidence not Celia Clayton’s statement that it was a knife. Counsel responded that this was a mistake by Celia Clayton and merely demonstrated her honesty in that if she had fabricated her account that Lisa Hartwick struck the blow, she would not have referred to a knife.
As to the jury finding of serious injury, counsel submitted that, on the evidence, the seriousness was at the lower end of the scale.
Counsel for Lisa Hartwick adopted the submission put for Celia Clayton that the prisoners had agreed to do no more than assault Stephen Borg with foresight that death or really serious injury might occur. Counsel also submitted that I should accept Lisa Hartwick’s account in her interview of what occurred. This included statements suggesting that she was forced by John Hartwick to take part. In particular, counsel argued that while she may have carried a Bi-Lo pole at 3 Karingal Drive and got into the car and travelled with the others to 37 Karingal Drive, she did not participate in any of the violence. Counsel relied on the fact that there was no blood on her clothing. Counsel submitted that the fatal blow was struck by another. He argued that her account of what happened in her record of interview was supported by the forensic evidence which showed that there was substantial blood from Paula Rodwell on the carpet on the floor where she had said Paula Rodwell had fallen after being struck by Celia Clayton.
In my view, the proper conclusion is that the jury rejected her account. They had ample reason to do so. There was no evidence from the neighbours at 3 Karingal Drive that suggested any fear or unwillingness on her part before her departure with the others. Rather she herself was seen to be extremely angry and seen to collect weapons. Further, she had ample excuses to pacify John Hartwick if he was pressuring her to go and there were many people about to protect her from any threats from John Hartwick or pressure from him. As to a lack of blood on her clothing, the deposits of Stephen Borg's blood on the clothing of the others were not large.
Evidence was called on her behalf from her mother, a sister and friend about conversations with her which, they said, revealed her fear of John Hartwick. The evidence of her mother was based upon conversations that have occurred since the death of Stephen Borg. The objective evidence does not sit comfortably with the case advanced. Lisa Hartwick did not lack the courage to obtain an intervention order against him in the latter part of their three-year marriage. She was not so much in fear of him, however, that she felt it necessary to have an intervention order that banned him from her home. The evidence of the three witnesses was that she fell in love with him while he was a prisoner on remand in 1998. Her conduct has been consistent with someone still in love with him and hoping that he might change his ways.
This analysis was, in my view, confirmed in a dramatic moment as the jury left the courtroom, having given their verdict, Lisa Hartwick shouted with great emotion and anger from the dock:
“That man stabbed my husband first. He sneaked up behind him and stabbed him and you call that murder.”
Speaking from the heart, she still referred to John Hartwick as her husband, this man who she allegedly feared and who she should have been blaming for her fate. In addition her outrage was directed as much to the jury’s verdict against him as to its verdict against her. She spoke on behalf of both of them.
As to Count 2, no specific submission was made for Lisa Hartwick. The position that had been taken in the trial by Lisa Hartwick was that it was the act of Celia Clayton and that she and John Hartwick had immediately gone to Paula Rodwell’s assistance after she was struck. I proceed on the basis that that position is maintained.
The factual basis for sentencing - analysis
It is necessary to determine what facts have been established beyond reasonable doubt as to the events that occurred relevant to the crimes committed on 23 May 2001.
The evidence led by the Crown from the neighbours of No 3 Karingal Drive strongly supports the position taken by the Crown on the issue of the nature of the complicity proved for Count 1. There were some differences of detail, and some inconsistencies between witnesses, but the evidence was highly persuasive. I am also unable to point to any proper basis on which the jury could have accepted the evidence of those witnesses, as it must have done, without coming to the conclusion that what the three revealed in their words and actions was an intent to inflict really serious injury on Stephen Borg. Accordingly, I proceed on the basis that the three prisoners agreed at 3 Karingal Drive to go to 37 Karingal Drive to cause really serious injury to Stephen Borg.
As to the roles of the three prisoners, in particular, their roles at 37 Karingal Drive, Lisa Hartwick and Celia Clayton rely on their records of interview. In light of the verdicts and the lies contained in their records of interview about their intentions when they left 3 Karingal Drive, their accounts of their roles cannot be relied upon. Further, I am also satisfied that the verdicts indicate that the essence of the evidence of Paula Rodwell about what occurred at 37 Karingal Drive was accepted. In charging the jury, I referred in some detail to her failings as a witness. The matters I referred to make it dangerous to rely on her evidence in the absence of independent support. It is particularly unsafe to rely on the accuracy of her evidence so far as it dealt with graphic details. However, her basic account of what occurred had a ring of truth about it and received some support from the forensic evidence.
Proceeding on the above basis, I am satisfied that the following facts have been established to the requisite standard or are not in dispute.
On the evening of 23 May 2001, the late Stephen Borg drove a stolen white Commodore into the rear of a car rented by or for Celia Clayton pushing it into the rear of a vehicle owned by John Hartwick which was in turn pushed into contact with the front wall of the house occupied by Lisa Hartwick. The three did not see the driver but assumed that the incident was connected with an earlier fight involving Paula Rodwell and Lisa Hartwick at a bus stop in Karingal Drive. The fight concerned the issue of whether Paula Rodwell had called John Hartwick a “dog” and whether Paula Rodwell owed money to the Hartwicks. The three assumed that Stephen Borg was the driver of the car, he being the de facto husband of Paula Rodwell and the person who John Hartwick in fact said had called him a “dog”. The word “dog” is the description given by the prisoners to a person who gives the police information. It appears that for them it is the worst of insults.
The three were very angry about Borg’s actions and their anger was the greater because they believed that the issue with Paula Rodwell had been sorted out with her by apologies from the Hartwicks to her.
Over a period of approximately 30 minutes, the three organised themselves to go in a vehicle (unregistered) owned by John Hartwick to punish Stephen Borg by giving him a beating. To that end, they took with them at least one knife and some poles. During their preparations their extreme anger did not wain. Lisa Hartwick and Celia Clayton gave vent to their anger saying what they were going to do. The statements included, “We’re going to go up there and get them”, “Let’s go down there and do a run-through”, “Let’s go down and fix these bastards”, “I’m going to cut the bastard’s throat”. John Hartwick during the preparation period also drove off at high speed in pursuit of a utility which had driven past several times because he thought that its driver might be the perpetrator of the car smashes. While accepting that John Hartwick was trying to calm down the two women and was not as “ballistic”, as Mr Canham put it, as the other two accused, he was furious about what had happened and was wanting to deal with Stephen Borg but was wanting to be in charge. They left with the knowledge that neighbours had rung the police and that the neighbours, if asked by the police, could identify them as the likely perpetrators.
On their arrival at No 37 Karingal Drive, they demanded entry, banging on the door. Paula Rodwell and Stephen Borg were inside the house. Paula Rodwell persuaded Stephen Borg to go out the back door while she tried to look after the situation. Paula Rodwell opened the front door as Stephen Borg left and was immediately struck on the head by Celia Clayton with a pole. The others restrained Celia Clayton from further assault on Paula Rodwell. Inside the house, Paula Rodwell was held at knife point at different times throughout most of what followed by either Celia Clayton or Lisa Hartwick. Lisa Hartwick and John Hartwick, however, at various times, attempted to staunch the profuse bleeding from the wound to her head.
The jury presumably regarded the blow to the head as a serious injury because of its potential for brain damage and the loss of blood.
A search was conducted for Stephen Borg and the house was searched for anything of value which might be used to compensate for the damage to the vehicles. The three were extremely angry. In the meantime Stephen Borg had armed himself and came up the front steps The three heard him and rushed to the front door. The first to get there was John Hartwick and he and Stephen Borg became locked in an embrace and appeared, according to Paula Rodwell, to be “dagging” at each other as if attempting to stab each other. As the two women went to join him, John Hartwick called out to them for help. In light of the jury’s finding, I am satisfied that this was not because he was in danger but because he wanted them to help him deal with Stephen Borg. I am satisfied that they quickly gained control over Stephen Borg and disarmed him. They went into the lounge room where he was severely beaten. He suffered a number of cuts and other incised injuries from a knife or knives as he attempted to defend himself from the attacks. In the course of the attack, he was fatally stabbed in the chest.
In light of the jury finding of guilt on Count 1, the Crown negated self defence. Accordingly, while I am satisfied that there was a fight between Stephen Borg and John Hartwick, the beating and killing of Stephen Borg did not occur in the course of any of the prisoners defending themselves. Rather the killing occurred in the course of them carrying out their common purpose.
On the evidence, it is not possible to point to any one of the accused playing a more significant role than the other at any time during the events of that night.
As to Count 2, I accept, however, that John and Lisa Hartwick did not intend that Paula Rodwell suffer any more than she did whereas Celia Clayton, if they had not restrained her, would have inflicted more injury on Paula Rodwell.
Matters personal to the accused
John Hartwick was born on 3 October 1951 and is aged 51 years. At the age of three, his parents separated. At the time they were living in Hamilton. His mother moved to Nhill where she formed a new relationship. Her new partner was aggressive and drank heavily. I was informed that John Hartwick suffered sex abuse from his stepfather. He was placed in an orphanage when aged eight. After 12 months he returned home. He then ran away. When aged 13, he was made a ward of the State and went to an institution in South Melbourne. His schooling finished at Grade 8.
He was married at 18. There are three adult children by that relationship. This marriage did not survive the repeated incarcerations to which I refer below. During the 1980s and early 1990s he had two de facto relationships. A son was born to the second of those relationships.
He met Lisa Hartwick in 1993. A de facto relationship developed in 1996. He had been convicted of armed robbery in 1995. He successfully appealed that conviction in 1996. A re-trial was ordered but in 1997 a nolle prosequi was filed. By then he had spent 12 months in custody. They married in 1998 while he was being held in custody pending the trial of certain charges. On his release he moved in to live with her at 3 Karingal Drive.
He has been assessed by Dr Healy as having an IQ of 92, a result in the 30th percentile. Counsel informed me that personality testing revealed a person with substance abuse problems and depression. Also identified was a sociopathic trend linked to drug and alcohol abuse. Counsel submitted, however, that John Hartwick has ceased both drug and alcohol abuse in about 1992 and that this was confirmed by a lack of subsequent offending - when he is substance free, he can function in the community.
As to his health, he suffered injury in a car accident in 1986 including loss of consciousness. He suffered kidney damage in his adolescence as a result of being bashed. In 1988 he was stabbed in the chest by a prisoner in A division.
As to drugs, in his adolescence he was exposed to cannabis and moved on to LSD. At 19, he was using morphine and cocaine and then heroin. As noted above, his counsel maintained that his drug addictions and use ceased in about 1992. But on the basis of admissions made by John Hartwick to Robin Kennedy and the evidence of Lisa Hartwick’s mother as to the discovery of many needles at No 3 Karingal Drive hidden in a variety of places, I do not accept that John Hartwick had overcome his need for drugs and am satisfied that he continued to use them and was using them in early 2001.
Turning to John Hartwick’s prior convictions, he has amassed a very large number of convictions from 1969 to the present. They cover a wide range of offences: driving offences (including driving whilst disqualified - 1978); theft and burglary; drug possession, use and trafficking; going equipped to steal; weapons offences; assault including assault with a weapon (1990). In all, he appears to have received terms of imprisonment on at least 20 occasions. At various times, in and between 1972 and 1992, the courts before whom he has appeared have been persuaded to give him an opportunity to rehabilitate himself. These orders have included orders for probation, a recognisance and suspended sentences. As I read his history, however, he has breached those orders.
Lisa Hartwick was born on 12 July 1962 and is aged 40. Her mother, Elisabeth Coulson is still alive and gave evidence on her behalf. Her parents separated when she was 11 and for a period of time she went back and forth between her parents. At one time she was put into foster care. She cannot now recall how long she was in foster care or how she got out of it. Counsel stated that she was not able to cope with the separation which was why she moved back and forth between her parents. She was sexually assaulted by her mother’s boyfriend. She told her mother about the first incident, but she did not think that she was believed. She did not tell her family about the second incident until six years ago because she felt she would not be believed. She was also physically assaulted and thrown down the staircase by her mother's husband after an argument about money he had borrowed from her.
She commenced an apprenticeship at a Middle Park hairdressing salon. She was then living with her mother in South Melbourne. She was unable to continue with the apprenticeship because she had to leave her mother’s house after the staircase incident. She moved back in with her father until he died.
Lisa Hartwick says that she worshipped her father. He died 22 years ago of a brain haemorrhage when she was 18 years of age. For seven years she went to his grave every Sunday and spent some hours sitting at his grave. Before his death he formed a relationship with another woman with whom Lisa Hartwick did not get on.
After her father’s death, she went to live with her grandmother in Hampton and worked in a supermarket. When her grandmother sold her house, Lisa Hartwick then lived with friends working initially in a supermarket in Dandenong and then with Kambrook as a process worker. While working there she met Bill Knight.
She became engaged to Bill Knight in 1983 when she was 21. By 1996, they were living at 3 Karingal Drive but were separated. Her description of Mr Knight is that he is a very nice fellow but a heavy drinker and gambler and the gambling, in particular, created major financial problems for them.
In 1990 she formed a relationship with a man named Sullivan. They had known each other for many years. In October 1996 there was an incident in which he seriously assaulted her resulting in her suffering a form of post-traumatic stress disorder and depression.
She met John Hartwick in prison on a visit to him with Bill Knight. Bill Knight and John Hartwick are cousins. At that time she and Bill Knight were living separately in the same house. As noted above, she married John Hartwick on 4 December 1998 when he was on day leave from Loddon Prison. She says that he disclosed things from his past to her but promised that his life would change. She says it did not.
She says that John Hartwick made her leave her job at a hotel and that he never got a job or ever worked. She says that he lived with her for some 18 months after he was released from prison. She has voiced a number of complaints about him including infidelity, shooting up in a shed, taking money out of her credit card accounts, having drug users around while she was at work and threatening her and the children with death if she got the cops on to him. She says that her daughter Nicole ran away because he belted her up. She also says that he held the children hostage in the house on one occasion. Her counsel said that Lisa Hartwick’s understanding is that he has spent 20 years in jail and has only known drugs, violence and armed robberies. She says that there is a charge pending against John Hartwick relating to some white powder found in the lounge by police at 3 Karingal Drive.
On 24 September 2000, an incident occurred which led to the application for an intervention order against John Hartwick. It did not exclude him from 3 Karingal Drive but imposed limits on his behaviour and conduct. She says that her expectation was that he would “come unstuck” and finish up in jail which would solve her problems. In the meantime she says she could not try to have him removed from the house without risk to herself and her children.
Her statements about the relationship, her fears of John Hartwick and his continued drug abuse were, as noted above, the subject of evidence given by a friend, Robin Kennedy and her mother and sister in the sense that they gave evidence about what she said to them. It supported statements of her counsel from the bar table. I note that the evidence about John Hartwick is admissible in respect of her plea and sentence but not in that of John Hartwick.
Lisa Hartwick also relies on expert evidence.
Following the incident of the assault by Sullivan in 1996, Lisa Hartwick was assessed and treated by a psychologist and a psychiatrist. The psychologist, Jillian Cowan, diagnosed post-traumatic stress disorder and depression. She referred Lisa Hartwick to a consultant psychiatrist, Dr Farnbach. In a report by Ms Cowan dated 27 April 1997, she describes Lisa Hartwick as making excellent progress with the therapy she was receiving until March 1997 when she discovered that her two children had been sexually abused by a neighbour. She suffered new symptoms of post-traumatic stress disorder and her symptoms of avoidance were exacerbated. She focused on revenge. She was extremely angry. She was having great difficulty coping with some of the disturbed behaviour of her children that resulted from those events. At that stage Ms Cowan’s opinion was that the prognosis for recovery to a reasonable quality of living in the short-term was poor and that further psychiatric management was required.
In reports in May 1997, Dr Farnbach confirmed the post-traumatic stress disorder and depressive symptoms. He expressed the opinion that her background predisposed her to depression and anxiety disorders in the face of stresses such as she had recently experienced. His view was that she would need psychological counselling weekly or two-weekly for at least a year and probably then monthly sessions for about another year. His view was that she should also see a psychiatrist on a regular basis to monitor her medication. He expressed the opinion that the outlook for her depression was good although she would always remain disposed to episodes of depression. He expected complete resolution of her post-traumatic and panic symptoms within six months but she would always, because of her background, be likely to remain with longer-term higher-than-average levels of anxiety and have difficulties in her relationships with men. As at 9 July 1997, she was prescribed 200 mg of Zoloft daily and 200 mg of Tegretol nightly. As at September 1997 it appears that her progress had been good but that the medications had some unsatisfactory side-effects. Nonetheless it was decided to continue with the program.
Lisa Hartwick also relied upon a report dated 5 December 2002 from Dr Newton, a psychiatrist. His conclusions were that she was an underweight woman of 38 who gave a long history of personality difficulties, with mood fluctuations with suicidal attempts. He said she was depressed and admitted thoughts of suicide. She admitted making an attempt by taking an overdose of Tegretol sometime after stopping all her medication. He recorded that there was no evidence of hallucinations or delusions. He considered that she clearly had a personality disorder but also thought it likely that she suffered from Bipolar disease. At the time, she appeared to have been on the same medication although the dosage appeared to have increased. He reported that he last saw her on 2 May 2001 and she made a request for Valium which was refused. He said that her mood fluctuated during the time that he saw her between 27 February 2001 and 2 May 2001.
A report from Dr Newton dated 1 March 2001 was also tendered. It recorded, among other things, that Lisa Hartwick told him that she was taking 20 Valium a day and that she said she just always felt depressed. In this report he expressed himself more strongly in saying that he regarded her as suffering from Bipolar disease with associated personality disorder. She was continuing her Zoloft medication but he added Valpro and arranged to see her again. He expressed the view that she may well need long-term psychiatric treatment.
A report from her general practitioner, Dr Hewett, was also tendered. He recorded that Lisa Hartwick had a long history of anxiety and depression and had been treated with medication for both over the years. He referred to her having been in a series of abusive relationships over the period and having suffered emotional and physical abuse. He also referred to a recent conflict with the daughter. She had attempted suicide on least two occasions by taking overdoses of her prescribed medications. He stated that Dr John Newton had diagnosed her as suffering from a Bipolar disorder and a personality disorder. He said that in the months leading up to the offence she was experiencing severe depression and anxiety and a specialist was varying the medication in attempt to stabilise her moods. She unintentionally fell pregnant in April 2001. He stated that in the first three to four months of 2001 she was experiencing severe mood fluctuations because of the stress in her relationship and in the adjustments in a medication. He also stated that he subsequently learned that she was taking increased amounts of benzodiazepines in an attempt to alleviate her significant stress. He said that he last saw her on 22 May 2001 and she was in emotional turmoil because of her depression and her early pregnancy. He expressed the belief that she would not have been able to think logically at the time, with very unstable moods influenced by a Bipolar condition, medications and the difficult relationship.
I was also supplied with a report from Dr Vine dated 11 December 2002 recording the results of an interview on 7 December 2002. It confirms the histories given. As to her mental state, Dr Vine reported that she was at times distressed during the interview with her, but able to present the history in a logical and coherent manner. She noted that she made good eye contact and communicated an anxious and moderately depressed mood. Dr. Vine did not identify any delusional content, nor did Lisa Hartwick describe any current suicidal or self-harm ideation. Lisa Hartwick, she said, was not suffering from any conceptual disorder. She estimated from the presentation of the history that she had below average intelligence.
Lisa Hartwick has also been convicted of criminal offences but of a different order to those of a John Hartwick and Celia Clayton. The first was a conviction in 1981 for using indecent language for which she was fined. Counsel said that she swore at police who had taken number plates from a vehicle which was registered but did not have its current registration sticker on the window. Her counsel submitted that this was not significant. The second conviction was for theft in May 1998. Her counsel advised that this concerned a packet of pens worth $10 taken from Officeworks, she having paid up to about $200.00 for other goods purchased that day. Finally, on 14 March 2001, approximately two months prior to the offences in these proceedings, she was convicted of aggravated burglary and theft. When asked what was the nature of the aggravated burglary counsel suggested that it was simply that there was someone there. Counsel stated that, in January 2001, she had gone to help someone recover their belongings from another house when the occupants would not return them. She was a party to the taking of a video recorder which constituted the theft. Counsel also mentioned that she had a conviction which was not recorded on the presentment which concerned the obtaining of Social Security benefits when she was not entitled to them.
I accept that the separation from her son, Michael, is a source of great distress to her.
Celia Clayton was born on 22 December 1976 and is nearly 26 years of age. She has also had a traumatic life. Her counsel described her as having a personality scarred from factors beyond her control. At eight or nine years of age she was taken into care because her parents couldn’t cope with her outbursts. She was described as uncontrollable and needed special help. She grew up in a home environment where her parents set no parameters and gave no appropriate guidance. She was introduced to marijuana by her parents who were drug users. Her father, who she seems to have idolised, gave her amphetamines for her 12th birthday. She remained in care until she was about 13. She had, in the intervening period, been placed in Allambie and in Winlaton and later a series of family group homes, changes being prompted by her behavioural problems. When she was 13, an attempt was made to reunite her with her mother, she being given accommodation in a caravan in the backyard. Her relationship with her mother was marked by aggression from the mother. Shortly after returning to live with her mother, she left and she has had no contact with her over the past 12 years. It seems also that she was the victim of violence from her mother’s second husband and there is some history of sexual abuse from two of her father’s friends when she was seven or eight years old.
She at the age of 13 and became a prostitute. In doing so she took up the advice of her father that if she ever needed money this was a way to get it.
She left school at grade six. The assessment of experts from brief intelligence testing and observation is that she has average to high intelligence. It appears, however, that she lacks numeracy skills.
She developed a heavy dependence on drugs, for a time relying on heroin. At the time of the present events, she was relying substantially on cannabis which had replaced heroin.
It seems that Peter Macko, a witness in the case, became involved with her in recent years while she was working as a prostitute. He had offered her a way out. A relationship was formed. The relationship broke down but reformed while Celia Clayton has been in gaol. In gaol she gave birth to a child, Zachary, who is now one year old. Peter Macko is the father of the child and looks after him. He takes him to visit Celia Clayton once a week.
She has accumulated a substantial number of convictions involving the possession, use, trafficking and cultivation of drugs, indecent language and offensive behaviour, assaulting and resisting police and recklessly causing serious injury (2000). While in custody in relation to the latter offence of recklessly causing serious injury, she was subjected to an approach by a police officer to provide him with sexual favours in exchange for cigarettes. This incident came to light officially when a junior officer, who rejected the other officer’s invitation to join in, went to the authorities to complain about the matter. The other officer retired from the police force and was not charged. The incident is indicative of her situation and circumstances at that time.
She also has convictions for public transport offences, reckless driving, prostitution, driving while disqualified and learner driver offences. She has been convicted of possession of a regulated weapon in 1996, 1997 and 2000. Her counsel advised that she carried a knife with her to protect herself when working the streets as a prostitute. While she was a prostitute she became addicted to heroin. Counsel said she had a serious anger problem from an early age which she attempted to address by seeing a psychiatrist just before these offences.
Celia Clayton relies upon two expert reports. The first in time was prepared by Dr Walton, a psychiatrist, on 23 September 2002. The history he sets out accords generally with that put forward by her counsel. He describes her as a fairly severely psychologically-damaged individual and largely attributes that to the brutality she experienced as a child, repeated emotional rejection and her recruitment into drug abuse at a tender age. He comments that to apply a label “anti-social personality disorder”, while valid, hardly captures the extent of her psychiatric disturbance. He says that she may be properly described as a substance-dependent person and one suffering from a depressive disorder. He states that he did not see any immediate relevance to her offending that she had consumed her usual daily dose of cannabis and said that he could not see any clear role for a mental health expert in the trial of the proceedings.
The other report was supplied by Elizabeth L Warren, a forensic psychologist. She interviewed Celia Clayton on 17 December 2002 - presumably for the purpose of the plea. Ms Warren confirms the existence of a substantial anger control problem that began in childhood and still persists. She confirms a heavy dependence on drugs at the time of the events, with cannabis having replaced heroin. She records that at present, Celia Clayton is taking methadone. It was Ms Warren who conducted some intelligence tests. Her opinion is that there are no cognitive deficits that could have prevented her from completing a secondary education and various tertiary studies. She noted matters not noted by Dr Walton as to her state of mental health. In particular, she said that there have been signs of disturbance and depression including suicidal preoccupations coupled with attempts at suicide since the age of 13, and transient psychotic phenomena such as auditory hallucinations, perceptions of thought broadcasting and believing people are plotting to harm her. She stated that this increases as stress or depression increases and is probably worsened by cannabis abuse. At the same time, it was her opinion that the escalating disturbance she was experiencing prior to the murder did not have a direct relevance to the events other than that she was in a state of some chaos and was associating with people she would not usually associate with and impulsively agreed to accompany her co-accused to the address.
A fact that emerges is the unfortunate lack of therapeutic treatment through her life to date. She received counselling from case workers while she was in care and she apparently sought some psychiatric assistance when she found she was pregnant. According to Dr Walton this isolated episode occurred shortly prior to the killing “she having some appreciation that her aggressivity was again out of control”. He notes that the doctor was unable to prescribe any medication for her because of her then early stage of pregnancy. Paradoxically, as Dr Walton notes, she is now for the first time in her life in a situation where she can discuss psychological issues in detail with a consultant psychiatrist and other psychiatric staff within the prison system. Approximately 10 days prior to seeing Ms Warren on 17 December 2002, she was prescribed a new antidepressant, Serzone. She described the early effects as miraculous – “numbing me down … I’m not feeling so angry or upset”. It appeared to be performing significantly better than previous medications.
Both experts have referred to the pain that is being caused to her by the fact that she has not been able to keep her child, Zachary, in prison. According to Ms Warren, she was devastated when, following an assault upon her, she was placed in the management section of the prison 10 days after the birth of her son. She was unable to have him with her because of concerns for her safety and that of her baby. It seems that while in that section for four to five months pending placement, she lost privileges including visits with her son because of emotional outbursts by her. Her despair and depression increased to the point where she decided she did not want her son because she felt worthless as a mother. Ms Warren then praises her for a brave and commendable decision in deciding that Zachary is better in the community with his father, paternal grandparents and the extended family. She sees this as Celia Clayton placing her child’s best interests before her own. She also comments, however, that it is debatable whether the child is disadvantaged by being without his mother for the first few years.
Conclusions
As to Count 1, the prisoners have been convicted of a very serious crime. Looked at objectively, the particular breach of law in this instance was very serious. It is true that the three were provoked by the unlawful actions of the deceased and made their decisions while in a state of extreme anger caused by him. But their actions cannot be described as impulsive. They had 30 minutes at least in which to consider their response. There was a degree of planning involved. Further, while the beating was carried out, Paula Rodwell, the deceased’s de facto wife, was forced at knife point to watch a large part of it. The death, however, was not the result of an intent to kill but of an intent to cause really serious injury.
I have considered the victim impact statement of the deceased’s sister, Yasmin. The killing of her brother has caused great distress and pain and severely damaged the family and family relationships.
The provocation and the decisions taken highlight other issues. The prisoners took the law into their own hands with little apparent thought of the consequences and notwithstanding that they knew that neighbours were calling the police. Their behaviour is behaviour that needs to be discouraged.
I am satisfied that the three accused are unrepentant. As far as they were concerned, Stephen Borg deserved little mercy. In all the circumstances, special and general deterrence loom large as sentencing factors.
The three prisoners appear to be victims of their past to a large extent and appear to suffer from varying degrees and types of psychiatric illness. I am satisfied, however, that they remain suitable vehicles for deterrence.
When personal factors are examined and comparisons made between the prisoners, they differ somewhat in their significance and in the way they may affect the consideration of relevant sentencing purposes. For example, it may be said that the experiences that Celia Clayton had in her childhood and youth appear to have been worse than John Hartwick’s and his worse possibly than those of Lisa Hartwick. As to drug use and drug problems and their causes, a similar analysis may be made. The significant impact of their backgrounds and drug use may be said to render one marginally less morally culpable than another but at the same time may be said to increase the need for specific deterrence to be addressed and renders that one less likely to respond to rehabilitation than the others. As to the impact of a prison term, it may be said that the punishment of a prison term will be greater on Celia Clayton and Lisa Hartwick because it will separate them from their young sons. At the same time, however, John Hartwick was wounded in the incident and so has already received some punishment. In addition, any gaol term is likely to be more significant for him in the sense that, because he is significantly older than the other prisoners, he will have significantly less of his life available to him, if at all, when he is released.
Rehabilitation was not pressed as an issue by counsel. This is not surprising in view of the criminal history of the three prisoners, the nature of their problems, their lack of remorse and the lack of expert evidence on the matter. It remains, however, as a relevant matter and it is best addressed by ensuring that whatever sentence is imposed will not discourage rehabilitation.
Ultimately it seems to me that the differences that can be identified between the three do not warrant a different approach in sentencing them. It would be artificial to do so. In particular, the purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community ultimately require similar sentences for each of the three prisoners. I note that counsel for John Hartwick and Celia Clayton did not advance any specific argument that their clients receive different sentences. Counsel for Lisa Hartwick did argue for a different approach for his client but only on the basis that Lisa Hartwick was effectively an unwilling onlooker. He did not argue, for example, that personal matters required a different approach.
Weighing up the relevant matters, I have come to the conclusion that the appropriate sentence on Count 1 for each of the three prisoners is a term of imprisonment of 18 years. I regard that as no more severe a sentence than is necessary to achieve the relevant purposes.
As to Count 2, a distinction should be drawn between Celia Clayton as principal offender and Lisa and John Hartwick as aiders and abetters. The actual offence seems to me to be at the lower end of the range of gravity of offence intended to be covered by the charge. I also refer to the discussion above as to the matters personal to the prisoners, which are also relevant here. Any sentence imposed should address the same purposes as those identified for Count 1.
So far as Celia Clayton is concerned, a term of imprisonment of eighteen months should be imposed. As to the Hartwicks, their roles being less significant, a term of twelve months imprisonment should be imposed. I turn to the question of concurrency.
As to the Hartwicks, their sentences should not be directed to be served cumulatively with the sentences on Count 1. They arise out of the one episode, which consisted of the assault on Paula Rodwell and the killing of Stephen Borg. It would be artificial to separate them. An aggregate sentence of 18 years imprisonment for both charges addresses the relevant sentencing purposes. The aggregate period of imprisonment in each case will, therefore, be 18 years.
As to Celia Clayton, there should also be concurrency, save for six months of the sentence on Court 2. Her greater culpability should be recognised by directing that six months of her sentence on Count 2 should not be served concurrently with her sentence on Count 1. The aggregate period of imprisonment in her case will, therefore, be 18 years and six months.
It is necessary to fix non-parole periods.
I consider that an appropriate non-parole period for the Hartwicks would be 14 years and for Celia Clayton 14 years and six months.
Accordingly, John and Lisa Hartwick are each sentenced to a term of imprisonment of 18 years and I fix, for each of them, a non-parole period of 14 years. Celia Clayton is sentenced to a term of imprisonment of 18 years six months and I fix for her a non-parole period of 14 years six months.
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