R v Maes
[2012] VSC 161
•24 April 2012
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0103 of 2011
| THE QUEEN |
| v |
| DEAN MAES |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2012 | |
DATE OF SENTENCE: | 24 April 2012 | |
CASE MAY BE CITED AS: | R v Maes | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 161 | |
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CRIMINAL LAW – Murder – Plea of Guilty – History of alcohol and illicit substance abuse – Prospects of rehabilitation – Vigilantism
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Thomson | Office of Public Prosecutions |
| For the Accused | Mr D. Dann | Ann Valos Lawyers |
HIS HONOUR:
Dean Maes, on 7 February 2012, you were arraigned and pleaded guilty to the murder of Martin Dick at his home in Hoppers Crossing on 30 August 2010.
There are two co-accused who have already been sentenced by this Court, namely Elizabeth Downie and Callum Fitton, both of whom pleaded guilty to manslaughter and were sentenced by Justice King and me respectively.
The origins of the attack were borne out of the relationship between Mr Dick and your co-accused Elizabeth Downie and to a lesser extent your relationship with both of them. Martin Dick and Elizabeth Downie had been married for 12 years until they divorced in October 2005 after separating in 2002. They had six children, three boys and three girls born between 1992 and 2001.
At the time of the separation, initially all the children lived with Downie. In 2004 they all moved and lived with Mr Dick. Some time in 2002 you had commenced a relationship with Downie. This relationship lasted for about two years before the two of you broke up due largely to you being physically violent towards her. You still remained in contact with each other.
In March 2010, one of the children complained that Mr Dick had masturbated in her presence. As a result, four of the children moved back to live with their mother. One child remained with Mr Dick while the other was living elsewhere. Mr Dick had been interviewed by the police about the alleged incident but no formal charges had been laid at the time of his death, although it appears that a brief of evidence had been prepared but not approved.
Downie complained to various friends about the allegation against Mr Dick, saying that “something should be done or someone should have him whacked”. She further expressed to another friend that she wanted someone to run through Mr Dick’s house and in fact said she was going to get you to do it but then changed her mind because she thought that you would go too far. In the present circumstances, I refer to those matters only as a matter of context.
On 30 July 2010, Downie was on the phone to a friend and said that she and yourself were going to run through the child molester's home. You then told the same friend that you were going to beat Mr Dick up. You are reported as having said “did you hear what Martin did to those girls…I’m going to kill the low life cunt” but nothing occurred at that time. I proceed on the basis that that was not actually your intention at the time you were said to have made that remark.
On the day of the offending which was about one month later, you and Fitton, who you had known for a couple of years, met Elizabeth Downie at the Westonia Railway Station. At 1.41 pm, the three of you went back to Downie’s house and consumed some alcohol. Gabrielle, one of the Downie/Dick children, was home at this stage and Fitton showed her some of his tattoos which she took some photographs of.
The three of you, that is yourself, Downie and Fitton, proceeded to go to Mr Dick’s house in Downie’s Hyundai sedan. You all went up to the front door. Upon opening the front door, Mr Dick, on seeing who was at the door, quickly tried to close it but you smashed the front door down. You entered the house and fought Mr Dick throwing punches and kicking him. His blood was later found in the hallway, dining room and kitchen area. During the course of the struggle, you picked up a filleting knife. The actual circumstances of how that knife came into your possession are not clear.
Mr Dick managed to escape from the melee out the front door but was immediately punched by Fitton as he stepped outside. Then you came outside and briefly, shortly afterwards, stabbed Mr Dick seven times to his head, back and left flank.
A nearby witness heard Fitton yelling “I’ll kill ya” and another witness who was walking home from school heard a male yelling “he’s fucking dead, cunt, just fuckin’ leave the guy alone”. You then said to this witness “keep walking mate, it’s got nothing to do with you”. At this stage, Downie was heard yelling “oh, you’re a fuckin’ paedophile, you’ve been touching people’s daughters”.
A further witness who heard very much the same, also saw two men punching and kicking Mr Dick and then saw you pull Fitton away from him. It was put on as part of the Crown Opening on the plea which became Exhibit 1, that you had to drag Fitton away from Mr Dick twice. Once before you returned to Downie's car, then a further time after Fitton had returned to Mr Dick to abuse him and assault him further.
All of you then drove a short distance before Downie got out of the car and dropped the knife down a drain. The knife later retrieved by police was similar to knives which were found in the kitchen of Mr Dick.
You continued on to Grevillea Crescent, where you all got out and washed at a garden tap. You and Fitton took off most of your clothing and left some of it there. Once back in the car, you drove until the car ran out of petrol near Newport railway station. At this point, you went back to Fitton’s bungalow in Spotswood where the three of you engaged in sexual intercourse.
Downie left after speaking with her daughter on the phone who told her the police were at their house and wanted to speak with her. She was later arrested at the Hoppers Crossing railway station.
You and Fitton went to the Newport Hotel and continued to drink beer until your arrest at 11.25pm. You were both intoxicated and incapable of being interviewed.
You later gave a no comment record of interview.
Mr Dick died as a result of multiple stab wounds being one to his right ear, five to his back and one to his left flank. Two of his wounds caused massive internal bleeding and the collapse of both lungs.
I received four Victim Impact Statements on the plea from Robert Dick, Mr Dick's brother, Carolyn Donnelly and Catherine Wood, his sisters, and Philip Wood, Mr Dick’s brother in law and husband of Catherine Wood. At Callum Fitton’s plea which I presided over, the same victim impact material was read out by Philip Wood and Catherine Wood and the statements of Robert Dick and Carolyn Donnelly were also read out. I mention that matter because the material was very similar, if not the same.
It leads me to observe, as I have previously observed, offending such as this has a devastating and lasting effect on the victims and I can only do the best I can to understand what they go through. It can only be said that with your plea of guilty, the matter can now be finalised in one sense and the victims can take some comfort from the fact and begin to try and move on with their lives. One difficulty that arises in this case and is completely obvious, the children of the marriage between Mr Dick and Ms Downie are deprived of their father and, as a consequential result of her own actions in which you joined, deprived of the presence and help of their mother for the next number of years.
I did not receive any direct victim impact material from the children. The circumstances for them in that regard, since one of the offenders was their mother, relating to the death of their father was a very difficult one indeed but I have taken into account the truly tragic consequences that this offending has had upon them.
You are now 32 years of age. You do have a criminal record. It was put to me by Mr Dann who appeared for you on the plea that while your criminal record is substantial, there is a lack of prior convictions for violence and that appears to be so on the examination of your convictions.
Your prior convictions do seem to stem from your continual abuse of alcohol and drugs from a young age, and I will come to later. As such, I do not consider the fact that you had consumed alcohol and benzodiazepines on the day of the offending as a matter in mitigation but I do not regard it as a matter in aggravation either. It is however relevant in the sense that it might well have been a matter which you had chosen to argue on trial, had you not pleaded guilty, as to what intent you had actually formed at the time of these events.
You were born in Melbourne and have a twin brother and a younger brother. You also have an older half sister and a younger half brother. Your father was in the army and as a result of this, you moved around a lot in your early years and attended a number of different primary schools.
It was put to me on the plea that in those early years, your father had difficulty with his alcohol consumption and was violent towards your mother. Your mother would often leave and take you and your siblings elsewhere to escape his physical abuse.
At age 14, your parents separated and you lived with your mother but not for long. You fell in with an older crowd who did not attend school and were abusing alcohol. You felt that you were given an ultimatum by your mother to either attend school or leave home. As such, you chose to leave the family home. Since then, you have lived a somewhat itinerant life, staying with friends, living on the streets and staying at crisis centres or any accommodation that could be provided to you. You have not been able to sustain long term employment due to your lack of permanent accommodation.
From about the age of 14, you developed a dependency on alcohol and smoking cannabis up to two joints a day until you were arrested, other than time then spent in custody. You also have had a habit of taking amphetamines, although more heavily between the ages of 16 to 25.
Throughout the years, you have suffered a number of concussions, but in about 2006 or 2007, you were severely attacked to the head with an axe during a home invasion at your father's residence and received 14 stitches. As a result of the attack, you were later diagnosed with post-traumatic stress disorder. You dealt with anxiety from the attack by drinking more alcohol and using excessive benzodiazepines. You have been receiving prescriptions for benzodiazepines since the age of 20.
A report from Dr Adam Deacon, psychiatrist, was tendered on the plea and became Exhibit 3M. Dr Deacon stated under the heading ‘Opinion and Recommendations’:
“Mr Maes has a prolonged history of alcohol and cannabis dependency. He has persistently consumed excessive alcohol, contributing to secondary problems including blackouts and cognitive problems, including short-term memory deficits and related disorganisation. He has universally failed attempts at alcohol rehabilitation with prompt relapse.
Mr Maes has been subject to multiple head injuries. He has been seriously assaulted on many occasions, leading to periods of unconsciousness. He was seriously assaulted whilst severely intoxicated a few years ago whilst in the company of his father. As detailed in the body of this report, he developed a subsequent anxiety condition that meets the criteria for post-traumatic stress disorder. As a result of this serious assault, Mr Maes became more dependent on alcohol, and he also required prescribed anxiolytic benzodiazepine medication. He developed a pattern of abusing benzodiazepines, and as he typically consumed most of the prescription within a few days of it being dispensed.”
I might add in parentheses, that seems to be part of what happened on this very day.
Your recollection of the events on 30 August 2010 are at best scarce. It was put by Mr Thomson who appeared on behalf of the Crown that you did not go to Mr Dick’s premises that day with the intention to murder him but to carry out an attack. It was only during the fight with Mr Dick that you formed the intention to cause really serious injury and I proceed to sentence you on that basis.
I do accept that you knew the children and did have genuine concern about their welfare but vigilante attacks such as these are undoubtedly futile and completely unacceptable. You were aware of the allegation against Mr Dick but no charges had been laid and it was not a matter for you to be the judge and the jury, let alone the executioner. Even had Mr Dick not died as a result of the injuries you inflicted, this would have been a very serious crime of intentionally causing serious injury.
It was put on your behalf, although you do not remember the actual offending, that this in itself does not illustrate your lack of remorse as you could have chosen to have proceeded to trial and taken your chance of being convicted of a lesser crime.
Dr Deacon further observed:
“Mr Maes vaguely recalled elements of the day of the offence, but he denied any recollection of the actual offence other than the initial verbal and physical altercation. Mr Maes’ reported amnesia likely reflects a combination of similar previous alcohol related blackouts secondary to chronic alcohol dependency. Alcohol combined with benzodiazepines is also recognised as being a combination that frequently leads to amnesia. This combination is also reported to be a risk factor for paradoxical disinhibited and aggressive states.
Mr Maes presented as genuinely remorseful and contrite. He remains mildly perplexed by his circumstances, as he has struggled to reconcile what he has done. He presented as particularly concerned for the welfare of Mr Dick’s children now they’ve lost their father, and their mother is in custody. Mr Maes presented as mildly depressed but he is coping adequately in prison."
I note that your actions immediately following the attack did not show any level of remorse but I accept that you are now remorseful for your actions and I do regard your plea as having real worth and in part as being a feature of the remorse that you have shown.
You are a person who has clearly led a life dependent on alcohol and drugs. Your prospects of rehabilitation appear to be greatly intertwined with your ability to abstain from the abuse of alcohol and illicit substances. I received a report from Mr Martin Jackson, a neuropsychologist, which became Exhibit 6M on the plea. Regarding your prognosis he said:
“In terms of prognosis, it is highly recommended that Mr Maes cease drinking alcohol and smoking marijuana. If he does so, then there is a possibility that his cognitive skills will improve, although it is not known how well they will recover. However, if he continues to drink alcohol and smoke marijuana at hazardous levels then he will certainly experience deterioration in his cognitive skills over time and increase the probability that any impairment will be permanent. It is also recommended that he reduce (with the aim of ceasing) his use of benzodiazepines, which he continues to take due to anxiety following the axe attack.”
And later:
“In terms of recommended treatment, I note that Mr Maes has successfully undertaken detoxification in the past and remained abstinent for some time with appropriate support and counselling. Therefore, I recommend that whilst he is in prison he take part in drug and alcohol counselling. Furthermore, when he is released from prison he should be referred to a drug and alcohol service and engage in alcohol and drug counselling to assist him to remain abstinent. He should also receive counselling to help him deal with the trauma associated with the previous axe attack. He also has a long history of accommodation (homelessness) problems and would require further support from accommodation services once he is released from prison.”
In his report, Mr Jackson comments that he is unable to determine whether you have an acquired brain injury from substance use or previous head injury. At the time as his assessment of you, you were still abusing alcohol and drugs excessively so that aspects of a cognitive impairment test would not be able to be satisfactorily determined.
You do have the support of your family and now have a child of your own to consider.
Whilst on remand, you have completed a number of programs. For this you are to be commended:
· Introduction to Anger Management Program
· Communication Skills Programs
· Certificate III in Hospitality (Kitchen Operations)
· Staying Safe in the Community Program (Release Related Harm Reduction)
· Certificate I in General Education for Adults (Introductory)
· Certificate II in Asset Maintenance (Cleaning Operations)
Although because of your background and your abuse of alcohol and illicit substances, your prospects of rehabilitation are guarded. They are however not so bleak as to be disregarded and should not be regarded as non-existent. There is some prospect of rehabilitation in your future which I think you now understand is largely in your own hands. You have shown at least some determination whilst you have been in prison on this occasion in wanting to improve yourself and have shown signs of it.
I was asked to impose a sentence at the lower end of the range for murder because of the mitigating features of your plea and your lack of violent offending. These though have to be put in contrast to the aggravating features, particularly that you took the law into your own hands which must be discouraged and the fact that you stabbed Mr Dick seven times. Murder does carry life imprisonment. I have fixed a sentence which I would regard as being more or less in the middle of the range but at the lower end of that middle range.
Your co-accused Elizabeth Downie and Callum Fitton, as I have already observed, both pleaded guilty to manslaughter and agreed to give evidence against you in accordance with sworn undertakings they gave to the court. I sentenced Callum Fitton to be imprisoned for five years with a non parole period of three years. Justice King sentenced Elizabeth Downie to be imprisoned for six years with a non parole period of four years.
In so far as I have been able to do so and in so far as it is relevant to do so I have taken their sentences into account. It must be noted however that you were the person who caused the death of Martin Dick and you did so in circumstances that you alone formed the intent to cause really serious injury to Mr Dick. I have taken into account that Ms Downie was the moving force in this offending in a general sense.
I am obliged to have regard to just punishment, denunciation, general and specific deterrence and I have done so. It is important to note in that regard that you did stab Mr Dick seven times in what must be regarded as a sustained attack.
I have fixed a non-parole period which I believe will be adequate for your supervision in the community, when and if the parole board chose to release you on parole.
I sentence you to be imprisoned for 18 years and I fix a period of 14 and a half years before you will be eligible for parole.
I state that pursuant to s 6AAA of the Sentencing Act 1991, had it not been for your plea of guilty I would have sentenced you to be imprisoned for 21 years, with a non-parole period of 17 and a half years.
I declare that you have served 602 days pursuant to this sentence. I order that this declaration and the above statement pursuant to s 6AAA to be entered in the records of the Court.
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