R v Hill
[2006] VSC 149
•2 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2005
| THE QUEEN |
| V |
| MARK JAMES HILL |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-28 October, 2-4, 7-10 November 2005, 31 March 2006 | |
DATE OF SENTENCE: | 2 May 2006 | |
CASE MAY BE CITED AS: | R v Mark James Hill | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 149 | |
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Criminal law – sentence – murder – vicious attack with stick on unarmed victim – victim was new boyfriend of accused’s former girlfriend – provocation rejected by jury – no prior convictions – good prospects of rehabilitation – sentenced to imprisonment for 17 years with non-parole period of 12 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Gyorffy | Solicitor for Public Prosecutions |
| For the Accused | Mr W. M. Toohey | Victoria Legal Aid |
HER HONOUR:
Mark James Hill you have been found guilty by a jury of the murder of Adrian Scholes on 27 May 2004. It is now my duty to sentence you for that crime.
The offence
For two separate periods, between about November 2001 and late October 2003, you dated Julie Francis. She initially broke the relationship off for about one month in late 2002. Then in October 2003, she ended the relationship for good. On each occasion she ended it for a variety of reasons, including that she did not feel as strongly about you as you did about her. I accept that you loved her and that you did not want the relationship to end on either occasion. I also accept that you felt confused about the fact that she remained friendly with you, and slept with you on two or three occasions, after October 2003.
Unfortunately, you were not able to let go of the relationship. From October 2003 until May 2004, you continued to ring her, and send her text and e-mail messages, often many times per day. You made phone calls and sent abusive messages to other young men whom she dated. You followed her and on occasions followed her new boyfriends. You often drove past her house, sometimes late at night. Whilst I realise that you do not characterise your behaviour in this way, many people would regard your behaviour after the breakdown of the relationship as stalking. Your behaviour was so persistent that, in early May 2004, Julie Francis changed her mobile phone number, blocked your e-mail address and arranged for the solicitor for whom she was then working to send a letter to you, asking you to stop contacting her.
You clearly felt aggrieved that she was dating other men. Your university studies suffered and you started drinking more heavily. At one stage, shortly after the break-up, you told Julie that you intended to commit suicide, although there is no evidence that you actually took any steps to do so.
Julie Francis liked to attend dance classes. She first met Adrian Scholes in early April 2004, at the Swing Patrol dance class in Mornington. She and Adrian were both 22 years old, single and living with their respective parents. He was a physiotherapist and she was an office manager. Over the next six weeks or so, they saw each other at Monday night dance class and went out a few times to the movies or dinner. Their relationship was still very much in the early stages.
The 26th of May was Julie’s 23rd birthday. That afternoon, Adrian made Julie some handmade chocolates, picked her some flowers and went and surprised her at work. They then went back to Julie’s place, to celebrate her birthday with her family.
On your way home from university that day, you picked up a six-pack of Jim Beam bourbon, which you took home to Rosebud. You sat at home, drinking and feeling sorry for yourself, because Julie was spending her birthday with someone else. You were brooding and unable to put Julie out of your mind. At around 9.30pm, you called your brother and arranged to go and see him later that evening; you hoped that would take your mind off Julie. You continued to drink alcohol and, although you lay down, you could not sleep. Between about 7.30pm and 3.00am, you had drunk, on your estimate, about 12 to 14 375 ml cans of bourbon.
By this stage, you were feeling angrier and angrier at the circumstances in which you found yourself. You decided to drive down to Dromana to visit your brother. You chose to do so by driving through the suburb where Julie lived and, in particular, past Julie’s house. You told the jury that you intended to drive past her house, calling out something like “Happy birthday, you bitch” or “Happy birthday, you slut” at 3.00am in the morning. You also told the jury that, whilst you were driving past Julie’s house, you just happened to see Adrian Scholes leaving in his car; you were angry to see him there and decided to follow him.
You followed Adrian for some distance along the freeway, before speeding up and overtaking him, and taking the Dromana exit. You said that you pulled over, berated yourself for being so stupid and decided not to keep following Adrian. However, when you saw him also take the Dromana exit and drive past you, you said you renewed your desire to go and confront him.
In total, you followed Adrian’s car for somewhere between 20 and 35 minutes. I have no doubt that your anger and resentment continued to grow over that time.
Adrian lived at his parent’s house at Somerville. The house was in a semi-rural area, on a block of about 11 acres. The Scholes left their front gate locked, so when Adrian arrived home he pulled into the driveway and got out to unlock the gate. You were following closely behind and got out only 10 or 20 seconds after him.
You gave differing accounts as to the circumstances of the fight which then ensued. In general terms, you claimed that you had only punched Adrian about three times, after which you had picked up a stick, with which you hit him in a horizontal, back-handed motion – which you described as a “swat” – another three or so times. You gave different versions as to where the fight occurred, who spoke first, who threw the first punch, how many blows were struck and where, and what was said during the course of the fight. You asserted that Adrian had fought back, although you acknowledged that he either had not, or had barely, made contact with you; certainly, you bore no physical injuries from the fight, save for a cut on your hand, from where you had broken Adrian’s glasses.
You claimed that Adrian was fine when you left him. More specifically, you claimed that he was just resting on one knee, leaning up against the fence, breathing heavily, but otherwise appeared to be fine. You said that he did not appear to be bleeding at all, or maybe only a little from a nose bleed and slightly cut lip.
In returning a verdict of murder, it is clear that the jury did not accept your version of what happened during the fight and preferred the forensic evidence, which included the following. Dr Dodd, the forensic pathologist who conducted the autopsy on Adrian Scholes, identified at least 10 separate blows to Adrian’s head area and said that extreme force had been used. You had broken his jaw and his nasal cavity, knocked out several teeth, and caused severe compression and complex fractures across the front, sides and back of his skull. Dr Dodd said that Adrian’s skull had been fractured so badly that it was like a broken Easter egg.
The photos of the external injuries also speak of the ferocity of your attack. A number of large incisions, some gaping open up to as much as 35 millimetres wide, are clearly apparent on Adrian’s head. His eyes were so badly bruised and swollen that the paramedics were unable to open them to check for pupil dilation. He also had extensive bruising on his shoulders, arms and legs; in particular he had multiple bruises on the front and back of his arms and hands, which Dr Dodd said were consistent with defensive wounds.
You asserted that Adrian had always been standing in an upright position when you punched or hit him. Once again, the forensic evidence said otherwise. The blood-spatter examiner who examined Adrian’s car found his blood on the lower front driver’s side and underneath the driver’s side of the car, which could only have been placed there by blows to the head on someone who was either kneeling, crouching or close to the ground. Extensive blood staining on the fence, gate and on the ground near the gate supports the view that all of the attack took place in the vicinity of the gate and most of it at a time when Adrian was on or close to the ground.
You said that you drove off after the attack and some five or 10 minutes later came back to check that Adrian was alright. When you returned, his car engine was still running, the car lights were still on and there was no sign of Adrian. You said you assumed that he must have been alright and left.
Tragically, Adrian Scholes did not die immediately, notwithstanding the severity of his injuries. He lived on for a number of hours after you left him. It is clear that at some stage Adrian wandered onto the next door property. He would not have been able to see where he was going; you had smashed his glasses with one of your punches, and he would have been bleeding heavily on his face and extremely disoriented from multiple head injuries. The bloodstains show that he followed a zig-zag pattern across the neighbour’s grass, until he finally fell into the dam at the front of their property. It is not clear how long it took him to walk or crawl along this route before he fell into the dam, or how long he spent in the dam.
At approximately 6.30am the next morning, that is some three hours after the attack, Adrian’s parents were leaving home for his father to catch the train to work. When they came to the front gate, they found Adrian’s car still running and pushed against the gate. After Adrian’s father moved the car, he noticed Adrian’s smashed glasses, his watch, belt and gate key on the ground near the gate. They went and got torches and searched for their son. A short time later, Adrian’s father saw Adrian in the neighbour’s dam. He dived in and dragged him to the side. They saw a sight no parent should have to witness: their son was bleeding heavily from serious head injuries, barely conscious and making gurgling sounds. The paramedics and ambulance arrived shortly thereafter; they worked on Adrian at the scene for the next couple of hours trying, unsuccessfully, to keep him alive.
Victim impact
There are a number of matters personal to you which are relevant to any sentence to be imposed. However, before discussing those matters, I wish to say something about the impact of Adrian’s death. The fact that more than 600 people attended his funeral speaks volumes as to how widely he was loved and respected.
Adrian’s mother, Carole Scholes, describes how much she misses Adrian, her only son, of whose caring nature and many academic, sporting and musical achievements she was extremely proud. She is haunted by her memories of the events of the morning of the 27th. Since Adrian’s death, she has sought counselling and is on anti-depressant medication.
Adrian’s father, David Scholes, has also been greatly affected by his son’s death. He describes how his relationship with his wife has suffered, and how he has reduced his work to 2 days per week. He feels he no longer has any desire to succeed in his professional and personal life.
Adrian’s sister, Ellisa Burdan, says that not a day goes past that she does not think of Adrian, her only sibling. Even everyday things, like watching the evening news, remind her of what happened to him.
As Adrian died on his father’s birthday, the day after his sister’s birthday, those family birthdays are now a particularly painful experience for them all.
After Adrian’s death, Julie Francis was diagnosed with chronic acute stress disorder. She blames herself, and also feels that both Adrian’s parents and your parents blame her, for what happened to Adrian. She lost contact with some friends, and left an employer, in circumstances where she feared that she would otherwise have to face members of your or Adrian’s families. Because Adrian died on the night of her birthday, she also feels she will never again enjoy a “happy birthday”. Hopefully, through counselling and the passage of time, she and others will come to realise that she is not responsible for Adrian’s death.
In addition to the trauma of losing Adrian, I have no doubt that attending court, giving evidence, and hearing in detail the circumstances of what happened to Adrian, must have been very distressing for his family and friends, all of whom have, throughout this trial, behaved with great dignity.
Seriousness of the offence
The maximum penalty for murder is life imprisonment.
I accept that this was not a premeditated murder, in the sense that you did not pursue and attack Adrian Scholes with the intention of killing him. However, it was not a purely spontaneous attack either.
You followed Adrian’s car for about half an hour, clearly intending there to be some sort of physical altercation between the two of you. You variously described your intention as you were following Adrian as being: to have “a nice little blue with him”, to show him some “male bravado”, to give him “a punch in the nose for what he had done” to you, to “sort things out man to man”.
You could have chosen, at any time during that period, to stop following him. Your counsel says that I should infer that your judgment was so clouded by alcohol and emotion that you were unable to make such a decision. However, on your own evidence, you did make precisely such a decision when you temporarily stopped following him by taking the Dromana exit; unfortunately, when Adrian took that exit after you, you renewed your desire to confront him.
Similarly, the attack need not have proceeded from the use of fists to the use of a weapon. You acknowledged that you did not have to pick up the stick to defend yourself, that you could have simply jumped in your car and driven off after punching Adrian a few times.
Nevertheless, I have no doubt that your decision-making ability and self-control were seriously impaired by the amount of alcohol you had consumed that night. You were also very angry and jealous that Julie had spent the evening with Adrian, not you. No doubt those factors explain why you lost control and attacked Adrian with the degree of violence disclosed by the forensic evidence.
Your defence was conducted on the basis of lack of murderous intent, alternatively provocation. You had offered to plead guilty to manslaughter, which plea the Crown rightly rejected. You alleged that Adrian had provoked you to pick up the stick by telling you that Julie had said that you had a small penis and “couldn’t get it up”. By returning a verdict of guilty to murder, the jury was satisfied beyond reasonable doubt that you did not kill Adrian Scholes in circumstances amounting to provocation. Having regard to all the evidence, including that of both Julie Francis and yourself, I am not satisfied on the balance of probabilities that the provocative words were in fact spoken.
Personal circumstances
You are now aged 29. You were 27 years old at the time of offending. You are the second of three children.
You grew up on the Mornington Peninsula, attending Dromana Primary School from prep to year six. You described yourself to psychologist Carla Lechner, who gave evidence on your behalf, as an above average student who found it hard to fit in, especially in latter years of primary school. You told her that you were unhappy and depressed during your childhood, due to the fact that you were teased and bullied at school. You would hold in your feelings to a certain point and then “explode”, sometimes engaging in physical attacks. As you approached adolescence, you retreated into the world of books and spent most of your spare time reading at your grandmother’s house, where you were often sent to avoid conflict with your sister.
You attended Padua Secondary College in Rosebud, but felt that you did not really fit in there. At the end of year 7, you transferred to Dromana Technical School, which you attended until the end of year 12 and where you seem to have fitted in better. You were a keen cricketer and footballer, and involved with school cadets and the scouting movement.
You deferred tertiary studies for a year, during which time you were largely unemployed. You started working at an outdoor “summer job” with the local shire council, which led to full time work, which you enjoyed. Your marijuana usage, which had started when you were about 15, increased as you socialised with a group of heavy users. After 18 months with the council, you were retrenched; you were then unemployed for the next two years. Whilst unemployed, you successfully completed several “work for the dole” and similar programmes. Supervisors have described you as reliable, hard-working and responsible. Following the death of a close friend, you decided to return to study and give up marijuana.
You studied for a Diploma of Computing at Frankston TAFE, which led to a degree course in Network Computing at Monash University. In May 2004, you were in the third year of that course and working part-time as a supermarket shelf filler.
Other sentencing considerations
There is a need for general deterrence in a case such as this. Unfortunately, the story of somebody (usually, but not always, a male) who refuses to accept that a relationship is over, and who harasses or stalks a former partner or their new partner, ultimately ending in violence, is all too common.
You said that you wanted to sort things out man to man, but there was nothing to sort out. Adrian Scholes had done nothing that justified your actions on that night. He had not, as you asserted, “stolen” Julie from you. He had been out on a few occasions with a young woman who had broken up with you almost nine months earlier and who had told you that she wanted nothing further to do with you. Even if (in spite of her solicitor’s letter, e-mail block and change of phone number) you thought Julie might be persuaded to come back to you, you had no business pursuing and attacking a young man who had done nothing to you. People must be deterred from engaging in violence towards others out of jealousy, anger or some sort of proprietary feelings about their former partner.
Your obsession with Julie Francis and the men she dated after she broke up with you escalated, over a matter of months, from phone calls and abusive messages to a brutal attack, initiated by you, which caused the death of an innocent young man. Your behaviour was an inappropriate response to the end of a romantic relationship and must not be repeated by you in the future. However, I note that you have no prior convictions and have never been in trouble with the police before. I also accept that your violent conduct on the night was out of character for you. In the circumstances, the need for specific deterrence in this case is slight.
I accept that you have shown some remorse, although it is not clear that you have yet accepted full responsibility for what happened. Your psychologist says that you are, to some extent, still blocking out the awfulness of what occurred and your role in it.
According to Ms Lechner, you are moderately depressed and have found it difficult to adjust in prison. However, during your time in custody, you have found work in the maintenance department and have completed a number of TAFE courses and have started training to be a prison listener, a position of some responsibility.
In Ms Lechner’s opinion, you could benefit from long term psychotherapy to assist you in better understanding your emotional reaction to loss and rejection, and to address long-standing issues of low self-esteem. She says you have a capacity for insight and reflection, but need to develop emotional maturity and an ability to take the perspective of others. She says it is unlikely that you will be able to access such counselling in the prison environment.
Overall, Ms Lechner describes your rehabilitation prospects as good, an opinion with which I agree.
However, the taking of a human life remains a most serious offence. The courts not only have a duty by imposing appropriate sentences to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence as a way of solving a problem, may cause loss of life.
Sentence
I have had regard to the range of sentences handed down in this court over recent years for the crime of murder, bearing in mind that they can only provide general guidance and that each case must be assessed having regard to the individual circumstances of the offence and the offender.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 17 years. I fix a period of 12 years as the period you must serve before becoming eligible for parole.
I declare that the period to be reckoned as already served under the sentence is 705 days, inclusive of today’s date, and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
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