R v Howard
[2004] VSC 73
•12 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1477 of 2002
| THE QUEEN |
| v |
| PETER JOHN HOWARD |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30-31 October 2003; 3 November 2003; 5-7 November 2003; 10-14 November 2003; 17-19 November 2003 | |
DATE OF SENTENCE: | 12 March 2004 | |
CASE MAY BE CITED AS: | R v Howard | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 73 | First Revision 17/3/04 |
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CRIMINAL LAW – Sentence – Murder – Stabbing of female victim alone in home – Not guilty plea – 70 year old male offender – Conviction for armed robbery and kidnapping 27 years earlier – No evidence of prospects of rehabilitation – Imprisonment for a maximum period of 20 years – Non-parole period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr C. Dane Q.C. and Mr M. Croucher | Simon English, Barristers and Solicitors |
| For the Crown | Mr G. Horgan S.C. | Solicitor for Public Prosecutions |
HER HONOUR:
Peter John Howard you have been found guilty by a jury of murdering Olive Martha Maas at Boronia on 12 June 2002.
The background circumstances
Olive Maas was your 59 year old neighbour living at 18B Catherine Street, directly across from unit 2 number 5, where you had lived for some 20 years.
Ms Maas was a much loved member of the close-knit community of Catherine Street. She was described as warm, friendly, generous and gregarious. She had worked for many years in health care before retiring in 1998. She gathered neighbours and friends together. She was actively involved in the Lutheran church.
You had had little or no contact with Ms Maas. Neighbours spoke of you avoiding her and not responding if she did happen to pass and greet you.
On one occasion, some ten years before the murder, you had asked visitors to Ms Maas' house not to park outside yours. There had been some conversation between you and Ms Maas about parking and she had told neighbours that she had informed you that the street was a public place and that people had a right to park where they wished. Afterwards, she had asked her visitors not to park in front of your house.
You lived as a recluse, with no interaction with any of the neighbours who gave evidence. You were frequently seen standing at your front window looking into the street in the direction of Ms Maas' house. Ms Maas also mentioned to others that she had noticed you looking out the window, constantly, in her direction.
In June 2002, you told Detective Sergeant Gale of the Homicide Squad that you had always found Ms Maas to be "aggressively friendly".
You and your late mother had lived together in the unit which she had rented some 20 years earlier from its builder and owner, Mr John Stockley. Your mother had died at some unascertained date before the murder.
The property adjoining yours, unit 1, had been vandalised approximately 12 months before the murder. Mr Stockley had spoken to Ms Maas, asking her to keep an eye on it. Their conversations took place mainly in the street outside your property and hers and Mr Stockley noticed you watching them for a prolonged period nearly every time they spoke.
Mr Stockley had served you with two notices to quit. The first had been defective. The second notice to quit was due to expire on Thursday, 13 June 2002, the day after the murder. You had applied for an extension of time, but that had been refused.
The circumstances of the offence
On 11 June, the day before the murder, you purchased a woollen balaclava which completely covered the face. The DNA evidence showed that you had worn that balaclava at some point, but I am not satisfied that you were wearing it at the time of the murder.
At some time before the murder you modified the 12 cm long handle of a carving knife with a 21 cm long blade which was to be a murder weapon. You wrapped the handle in the sleeve of a yellow rubber glove and secured it using black tape.
You entered Ms Maas' property in the early hours of the morning of 12 June 2002, having broken her laundry window with a brick. You appear to have met her in her front room, at or near the doorway leading from the hallway outside her bedroom.
At about 12 minutes past 5 am Ms Maas’ neighbour in the adjoining attached property, number 18A, heard loud screaming, banging and your very calm voice. She was unable to distinguish most of your words. The screaming and banging went on for about 30 seconds. After the screaming stopped there was silence.
You had stabbed Ms Maas repeatedly, inflicting a total of 57 cutting injuries, all or some of which the forensic pathologist, Dr Matthew Lynch, said could have been produced by the modified knife, or by different knives. As Dr Lynch thought some of the injuries could have been joined to each other, he concluded that you may have stabbed Ms Maas between 30 and 50 times to produce them. He thought it likely that the stabbing had occurred over some minutes, but that the maximum duration of your attack would have been a reasonably short time.
You stabbed Ms Maas through her left eye, penetrating her skull and her brain, and repeatedly in the chest, neck and face. A bone above her left eye and a rib were fractured. Five of the injuries entered her chest and damaged her lung and heart. She suffered fatal bleeding in the chest and died, in Dr Lynch’s opinion, from the stab injuries in the chest and blood loss. She also had many injuries to her forearms and hands, indicating that she had tried to protect herself.
Ms Maas’ purse appeared to have been placed beneath her body and several $10 notes were left on the floor and near the front porch, suggesting that she had been stabbed in the course of an interrupted burglary.
She was not found until about 2.30 pm on 12 June. She was dead at that time and found by her friends, face down, dressed in her nightgown and lying in a pool of blood with the knife protruding from her let side.
The plea
Mr Croucher of Counsel made a plea on your behalf. He urged the Court to reduce the length of any maximum or minimum term of imprisonment to be imposed because of :
(1)what he described as your limited prior criminal history;
(2)your age of 72 years;
(3)your present state of health;
(4)your reclusive personality;
(5)the manner in which the trial was run; and
(6)your attitude to proposed applications for compensation by Ms Maas' family.
He submitted that each of these factors warranted some leniency in sentencing.
Personal circumstances
Before considering each of Mr Croucher’s submissions, I will refer to other aspects of your personal circumstances not already described.
In relation to your personal circumstances, Mr Croucher referred the Court to the sentencing remarks of an unidentified Judge of this Court who sentenced you on 1 April 1976 after your plea of guilty to one count of robbery and seven counts of kidnapping. I have accepted the facts recorded in those remarks.
You were born in Tasmania 72 years ago, but moved with your parents to Victoria when you were six years old. You were educated to the equivalent of Year 10 level and afterwards worked mainly in clerical jobs. Your employment history was unstable as a result of what His Honour described as "personality defects and nervous troubles" which caused you to resign from an unusually large number of jobs. You had not worked since 1970 when being sentenced in 1976. You were supporting yourself by managing your small share portfolio. You had sustained losses in the recession and ended up living on your capital which His Honour recorded you had lost, together with your confidence.
He said that you were then living without a wife or friends or money. Armed with a rifle which you had modified for use as a handgun, you carried out an armed robbery at a city branch of the Commercial Bank of Australia and a kidnapping. Your acts of kidnapping involved forcing bank staff into a strong room which you locked. You had planned to seek a ransom of $300,000 for the hostages. You had treated the hostages with courtesy and had assured them that you would not harm them.
His Honour was influenced by the opinion of an unnamed psychiatrist that:
" … due to severe personality disturbances from which you suffer you have a low stress tolerance and a history of fluctuating anxiety symptoms, which have accounted for your solitary situation which typically precipitates desperate attempt (sic) by such people to overcome the handicaps they may have by attempting to exert (sic) themselves."
His Honour sentenced you to 7 years imprisonment and indicated that, on the assumption that it was desirable that you be assisted by psychiatric treatment, he had fixed what he said might have appeared to be a rather low minimum period of two years. He requested that you received all necessary psychiatric treatment whilst you were in custody.
There was no psychiatric or psychological report tendered in the plea, although Mr Croucher referred to anti-depressant and anti-anxiety medication you were taking in gaol. In response to a query as to whether he intended to place material before the Court to distinguish your situation from that of other prisoners who might be depressed and anxious in similar circumstances, Mr Croucher said that he did not intend to do so.
I note that it was not submitted that the Court should treat you as suffering from any mental disorder or intellectual disability when sentencing you for this crime.
I now return to the points made by Mr Croucher.
Your prior criminal history
Mr Croucher sought to distinguish your previous offences of armed robbery and kidnapping as very unusual, involving no "wanton violence" and quite different from your crime of murder. He said that, although your possession of a weapon during a bank robbery would have engendered fear, I should be satisfied that the manner in which the crimes were committed gave rise to the least possible fear that could be imagined in the circumstances.
Counsel for the prosecution, Ms Williams disagreed. She described your 1976 conviction as a matter of some relevance because it was a violent crime, although committed some 27 years before the murder.
I am not persuaded by the submission that your previous offending was of such a different character that it was not relevant to your sentencing today. Armed with a gun, you had robbed a bank and had been prepared to lock people up in order to obtain a ransom.
I do take your conviction for the armed robbery and kidnapping into account in relation to your moral culpability and your prospects of rehabilitation. Your previous imprisonment has, tragically, not deterred you from committing this violent crime, and is a factor relevant to the sentencing consideration of the community’s need for protection. See: R vO'Brien[1]. However, I also take it into account that you have not been convicted of any other offence involving violence in the lengthy period since 1976.
[1][1997] 2 VR 714 per Charles JA at 718.
For completion in relation to your personal circumstances, I record your previous and otherwise irrelevant conviction on 2 November 1998 at the Ringwood Magistrates' Court in relation to charges of making and using a false document.
Your age
Mr Croucher emphasised your age of 72 years, submitting that it was a relevant and substantial consideration, and that each year of any sentence imposed represented a much more substantial portion of your life than it would in the case of a younger offender.
He submitted that, in very serious cases such as that of murder, although the sentence might well result in the offender dying in jail, the sentence should be mercifully tempered in some way to take into account the offender’s age. He relied upon relevant authorities summarised by Cummins J in DPP v Che Kien[2]. He frankly conceded that the sentence of 10 years with a minimum of 7 in Kien reflected not only Mrs Kien’s age of 80 at the date of her stabbing murder of a fellow inmate of a hostel, but also her serious mental illness, and he did not urge such a limited term as appropriate for you.
[2][2000] VSC 376
Cummins J found that Mrs Kien was at the time of the murder suffering from a “serious mental disturbance”, although not mentally impaired as defined by the law. Having reviewed the authorities His Honour said at [17]:
"… I impose sentence guided by the principles stated in those authorities – essentially, that old age is central to but not determinative of the quantum of sentence to be imposed."
Ms Williams responded that His Honour had remarked upon the need for general deterrence in an ageing population.
The effect of age upon sentence was recently considered by the Victorian Court of Appeal in R v Lorraine Alice Whyte[3]. The Court dismissed an appeal against a sentence of 22 years, with a minimum of 18, imposed upon a 52 year old woman convicted of murdering her husband by poisoning with arsenic, causing him excruciating agony for over two years.
[3][2004] VSCA 5.
Winneke P said that and held that the sentence was not "crushing", that it was proportionate to the nature of the particularly reprehensible crime and not manifestly excessive.
His Honour said:
"… in R v Bazley[4] (a case in which a 67 year old ailing man had been convicted of two counts of murder), the Court of Criminal Appeal in this State said that whilst age would always be a relevant sentencing factor, it could never be a justification for an unacceptably inappropriate sentence. The Court approved the statement of Crockett J in R v Crowley against Garner (1991) 55 A Crim R 201 at 206 that:
' … it does not follow that every sentence which justifiably deserves that epithet [i.e. 'crushing'] must on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation'.
In such cases, the Court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender's age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight."
[4](1993) 65 A Crim R 154.
In Bazley the appeal Court substituted a 15 year minimum term, for one of 11 years, in relation to sentences which included life sentences imposed upon the 67 year old respondent in respect of two murders, for which he had received a fee.
I have taken into your age account in fixing both your maximum sentence and minimum term.
Your present state of health
Mr Croucher submitted that imprisonment would have a particularly adverse effect upon you because of your ill health.
He referred to the benign tumour which, during your imprisonment, had been investigated by radiology and removed from your groin by operation. He said that its presence had made your trial and incarceration uncomfortable. He made no submissions as to any ill effects of the operation, apart from a reference to a resulting bowel blockage. He said that you have had some probably age related bladder problems. He did not mention any relevant treatment. He said that you suffer from arthritis for which you took medication, but did not elaborate.
As to your mental health: Mr Croucher said you were taking the medications “Simpromil” for depression and “Nulactil” for anxiety at the date of the plea. As I said earlier, no submissions were made nor material presented to the effect that you were any more depressed or anxious than other prisoners awaiting sentencing or as to the significance of your unspecified dosage of medication.
Mr Croucher submitted that your ill health would make imprisonment more burdensome for you than for others. Ms Williams responded that you would receive good health care in jail and that nothing extraordinary which would make your imprisonment more difficult had been described.
In Smith [5] King CJ said at 317:
“Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”
[5](1987) 27 A Crim R 315
No medical reports were tendered as evidence of your state of health. On the material before me, I am not satisfied that imprisonment will impose a greater burden upon you by reason of your state of health or have a gravely adverse effect on your health. Indeed, I note that your tumour was treated after you were imprisoned.
The lack of privacy in prison
Mr Croucher referred to your reclusive nature and previous social isolation. He said that you liked to read, listen to the radio and engage in other solitary activities and that you would suffer from the inevitable lack of privacy in prison where you were a “fish out of water” because of your age and because you were “a private person”.
However, Mr Croucher made no submissions and tendered no evidence about your experiences or reactions in this regard, in relation to either your previous term of imprisonment or to the 614 days of your pre-sentence detention. He did not attribute your depression or anxiety to the invasion of your privacy.
I have taken into account that a person who has previously chosen a solitary lifestyle is likely to find it stressful to mingle constantly with others and accept that Mr Croucher’s submissions should be taken to have been made on your instructions. However the absence of relevant material somewhat diminishes their force.
It was also put on your behalf that I should take it into account that you would not receive visits whilst in jail from anyone other than your lawyers, because of your lack of family and friends. It was said that you would miss the social contact you had when interacting with the staff at the local supermarket and would find it hard to mix with the prisoners with whom you would have contact. However, there was insufficient evidence to persuade me as to the nature of or the significance one way or another of the alleged lack of contact with persons whom you had previously encountered in your daily life, bearing in mind the range of persons, including staff, with whom you would be likely to mix during your incarceration
The manner in which the trial was run
Under s5(2C) of the Sentencing Act 1991 the Court may take into account your conduct of the trail as indicating remorse or the lack of it. Mr Croucher submitted that the trial was run in what he described as an “economical fashion”, suggestive of remorse on your part.
He referred to your agreement that the police witness, Mr Bastin, who was overseas at the time of the trial, need not be recalled to give evidence of the finding of packaging of the alleged murder weapon. He also referred to your agreement that evidence in the retrial could be given by way of the evidence, videotaped during the first trial, from Mr Ward, who had become ill, his wife, Ms Jane Klein Ward, who was about to give birth to her fourth child, and Dr Webb the geologist, who was overseas.
It was put on your behalf that you had saved the witnesses who had given evidence at the first trial from the rigours of giving evidence again. In my view these submissions have force only in the cases of Mr and Mrs Ward who had each shown signs of stress during the trial and who had been relieved of the ordeal of appearing at the retrial by your concessions.
It appeared that the case had been originally fixed for hearing on the basis that Mr Bastin would not be called because he was overseas and unavailable. This saved the community the expense of his recall as did the use of videotaped evidence of the expert geologist, Dr Webb.
Ms Williams submitted that it may have suited you not to have the evidence from these witnesses given in their absence, in all the circumstances and that remorse was not shown by the arrangements.
Having presided over the trial and the retrial, I am persuaded by her submissions in this regard. It may well have seemed more desirable to you that Mr Ward and his wife give evidence in the retrial only by their previously recorded testimony rather than in person, after having been given the opportunity to prepare themselves by appearing at the first trial. I am not satisfied that your agreement demonstrated remorse.
The settlement of the applications for compensation
It was argued by Mr Croucher that your agreement to settle claims for compensation made by Ms Maas’ family also indicated your remorse.
He said that, whilst maintaining your innocence, you have accepted the jury’s verdict and have agreed to settle rather than contest claims which will be satisfied from your assets. He said that there had been continuing discussions since your conviction in December 2003 and the matter had been settled between your lawyers and those acting for Ms Maas’ family on the day before the plea was made. He pointed out that claimants reside overseas and have been saved the expenses of travel and disputation. He was unable to provide any details as to the claimants or amounts of agreed payments and declined an offer that the matter be stood down so that relevant evidence could be obtained.
In the absence of any evidence about the details of the compromise, I am not persuaded that your settlement showed remorse.
Victim impact statements
I have read carefully the moving victim impact statements made by some of those closest to Ms Maas. They describe her significance in their lives and the devastating physical and psychological effects of your crime: ill health, stress on relationships, fears and disruption to life. They have been devastated not only by their loss, but most particularly, by the circumstances of her death.
I have taken these matters into account in sentencing you.
General sentencing considerations
Your crime involved planning and preparation. You made an apparently unprovoked brutal attack on a woman living alone, in what should have been the safety of her own home, in the early hours of the morning. You would have known that she was at her most vulnerable, sleeping and with nobody available to help or protect her. These factors identify yours as a most serious offence.
Further, you were not deterred by your previous term of imprisonment. And I consider that both specific and general deterrence are called for.
You have not, in my view, demonstrated remorse for your wrongdoing. There was no evidence relating to your prospects of rehabilitation.
Despite your age, in my opinion, your sentence must reflect the need for community protection. In this regard I note that, at the age of 70, you were fit and agile enough to enter your victim’s property at night after breaking a rear window. Further, although she was only 59 years old, some 11 years younger than you, and a relatively large and active person, you were still strong enough to have been able to kill her by stabbing her between 30 and 50 times.
In determining the appropriate sentence I have taken into account the seriousness of your offence, the circumstances in which it was committed and your personal history.
I have taken your age into account when fixing both your maximum and minimum terms.
I sentence you to imprisonment for a maximum period of 20 years and fix a non- parole period of 15 years.
I declare that the period of 630 days be reckoned as served under that sentence. And I direct that there be noted in the records of the Court the fact that this declaration is made and its details.
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