R v Markham
[2004] VSC 443
•8 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1432 of 2004
| THE QUEEN |
| v |
| HOWARD ROYSTON MARKHAM |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 October 2004 | |
DATE OF SENTENCE: | 8 November 2004 | |
CASE MAY BE CITED AS: | R v Markham | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 443 | |
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CRIMINAL LAW – Sentence - Attempted murder – Shooting of victim motivated by animosity and by promise of payment of $10,000 – Plea of guilty – Eleven years’ imprisonment with minimum of eight years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Solicitor for Public Prosecutions |
| For the Accused | Mr S.E. Grant with Mr M.E. Dempsey | Lethbridges |
HIS HONOUR:
You, Howard Royston Markham, have pleaded guilty before me to the attempted murder of Darryl Adrian Denman. This crime carries a maximum penalty of 25 years’ imprisonment.
In December 2002 your victim, Darryl Denman who was then aged 32 years, lived in Cascade Street, Frankston North.
For a period of time leading up to Wednesday, 18 December 2002 you had monitored the movements of your victim. Your attack upon him was carefully planned. You knew that it was his usual practice to warm up his car in his driveway before leaving for work at around 7.00 am.
That morning you drove a vehicle owned by an associate of yours, one Glen Chase, to the vicinity of your victim’s home. There you put on a balaclava and boots you had earlier obtained. The boots were several sizes larger than your shoe size and were worn by you with the intention of not leaving any footprints which could be traced to you. Likewise, under the balaclava you placed plastic and a stocking so as to avoid leaving any DNA material on the balaclava. You wore gloves taped to your upper clothing for a similar purpose.
At 6.50 am your victim emerged from his front door and entered his vehicle which was parked in his driveway. Unbeknownst to him, you were waiting in ambush for him. However, rather than warming up his car as was expected by you, Mr Denman started the engine and immediately reversed. As he did so you approached his car and fired a single blast from a sawn‑off shotgun which you then had in your possession. That shot was aimed toward the victim’s head and was fired from a distance of about one metre. The blast penetrated the victim’s rear off-side window and the driver’s headrest and struck him to the back of the neck and shoulder area. Mr Denman pressed his foot onto the accelerator and his car reversed across the roadway outside his premises and came to rest by colliding into a cyclone wire fence of the golf course on the opposite side of the road. The shotgun held by you ejected the fired cartridge case onto the victim’s driveway. Undeterred by the consequences of your first shot you then walked towards the front of the victim’s car and attempted to fire a second shot at him. Fortunately for your victim the shotgun then jammed, making a second shot impossible. You then ran back to the vehicle in which you had travelled to the scene and drove away at a fast rate of speed. At about this time your victim’s father ran out of his house and saw your victim stumble out of the driver’s door covered in blood. Your victim said, “I’ve been shot. I think I’m dead. I love you, Dad”. An ambulance was called. Ambulance personnel soon thereafter attended the scene and conveyed your victim to Frankston Hospital. He was immediately operated upon and later, after surgery of seven hours, was airlifted to the Alfred Hospital in a critical condition where further surgery took place. The injuries sustained by him were serious indeed. Shotgun pellets had penetrated his neck and shoulder area and had severed part of his carotid artery and jugular vein. He suffered massive blood loss and was administered 40 units of blood. He sustained serious injury to his throat and surrounding soft tissue and was not released from hospital until 9 January 2003.
Immediately after the attempted murder of Mr Denham an intensive investigation was undertaken by police and a number of your associates were interviewed. In early February 2003, undercover police attached to the Covert Investigation Unit, commenced working with you in order to obtain evidence against you. On 25 February 2003 you voluntarily confessed to having shot your victim to a covert operative who unbeknown to you was a member of Victoria Police. You told that covert operative that you had been offered $10,000 by a close friend to shoot the victim in the legs. You told the undercover police that the gun you used belonged to a friend who lived in Chelsea Heights. You told police that the owner of the car you used knew nothing about the matter. You said that before committing the offence you changed the car’s registration plates with plates you obtained from a car from a nearby car yard and that you put a plastic bag over your head beneath a balaclava, being mindful of DNA evidence. You told police that you burnt the balaclava and the clothing that you had worn three days later in bushland. You told police that you wore boots that were too big for you and stuffed them with paper, being mindful of any shoe impressions left at the scene. You said that those boots were discarded in a Dumpmaster. You told police that you had been watching the victim in preparation for the shooting for months prior to the event.
In the course of the covert operation and on 29 March 2003 you retrieved the shotgun which had been used by you to shoot your victim. You handed it to undercover police operatives in the belief that they would get rid of it for you. That shotgun has been examined and was proven to be the weapon that fired a spent cartridge which was found at the scene in the driveway. Finally you were arrested by police on the morning of 1 April 2003.
The circumstances of this attack upon your victim are serious indeed. Had the good fortune of the shotgun jamming as you attempted to shoot him a second time not occurred, he would almost certainly not have survived your attack. Furthermore there can be little doubt but that had your victim not been favoured with what might truly be described as heroic surgery at the Frankston Hospital, he would have died by reason of the injuries to his carotid artery, his vertebral artery and his jugular vein.
Victim Impact Statements have been filed by your victim and his mother, the admissible parts of which I have considered. Mr Denham continues to suffer pain in his neck. He has difficulty sleeping and suffers from nightmares. He has suffered significant and permanent injury to his 10th and 12th cranial nerves resulting in sensory and motor deficits affecting voice and swallowing.
Fortunately, intensive rehabilitation for his speech and his capacity to swallow has had some beneficial effect. However, I have no difficulty in accepting that your attempt to murder him will have long lasting physical and emotional consequences for the foreseeable future, if not for the rest of his life.
However, in an able plea in which no stone was left unturned, your counsel, Mr Grant, has submitted that there are a number of mitigating factors in your favour. First, as he points out and importantly, you have pleaded guilty. He submits that in all the circumstances you are entitled to a significant discount by reason of your plea of guilty. The inconvenience and cost of a trial have been avoided and in consequence of that the witnesses, and in particular your victim, have been spared the trauma and unhappiness of re‑living the events which bring you before this court and, of course, being cross‑examined. As a matter of law you are entitled to have that matter taken into account in reduction of the sentence I would otherwise impose and I do so.
However, in the particular circumstances of this case, Mr Grant further submits that where the covert methodology of police is already the subject of challenge in the Court of Appeal in other cases, it is all the more significant that you have decided to plead guilty. I accept that there is considerable weight in this submission although, as submitted by the prosecutor, Mr Kayser, the particular circumstances of this case and the manner in which the confession was given, together with the provision to undercover police by you of the shotgun provides strong evidence indeed of your guilt. Although he concedes that some credit should be given for your plea of guilty, Mr Kayser further submits that your plea does not reflect remorse on your part, but rather a recognition of the inevitability of your conviction. Apart from your plea of guilty, I am unable on the material before me to detect any evidence of remorse on your part, and thus I conclude that although you are entitled to the benefit of your plea of guilty, you are not entitled to the full discount which may be available to those who suffer overwhelming remorse for the harm they have caused their victims.
In relation to the plea, you pleaded guilty before me on 12 October 2004. Mr Kayser submits that your plea was so late as to give you minimal credit for it. Mr Grant, on the other hand, submits that the time of your plea of guilt should be considered in the context of the rulings made in other cases in relation to the admissibility of confessions obtained by covert police in circumstances similar to those which apply to you. He submits that until the recent High Court decision in The Age v Commissioner of Police these rulings have been the subject of suppression orders, and that in such circumstances your legal advisers were not in a position to provide appropriate advice to you until very recently, and thus he submits that your plea can be looked upon as a plea at an early time, after having obtained such appropriate legal advice.
Mr Kayser submits that the question of the provision of such legal advice is an irrelevant issue. However, I do consider that there is weight in the argument advanced in this regard by Mr Grant and that your plea should not be regarded as a last minute decision attracting little credit in all of the circumstances.
Furthermore, Mr Grant submits that although you had been offered money to shoot your victim, the motive to commit the crime cannot be seen solely as a “contract”. He submits that the evidence before me establishes that the motivation to commit the crime arose by reason of a combination of factors. Those factors include animosity which you held against your victim because of bad feelings which existed between your family and the family of the victim. This animosity is said by you to have arisen after the victim was charged with trafficking cannabis at his workplace in 1998 and your brother gave evidence against him at court. You told undercover police that the reason you “did the job” was “personal and a little bit of money”. You told them that you jumped at the opportunity to “square up for the family”. In addition, Mr Grant submits you were motivated by reason of a belief on your part that the victim had slept with the girlfriend of an associate of yours and furthermore that the victim owed money for drugs to that same associate. It is, of course, this associate who you say offered you $10,000 to shoot your victim.
I accept that there is evidence that in attempting to murder Denham you acted with a mixture of motives, some of which were personal in that you saw yourself as “settling a score” on behalf of your brother, and others. Nevertheless, the facts establish clearly that a motivation or at least part of the motivation for the offence was the payment to you of the sum of $10,000 for your services in the intended attack upon Denham.
Whilst it is true that a viewing of the videotape of your confession to undercover police reveals your personal satisfaction or at least your expression of personal satisfaction with what had occurred, that confession needs to be viewed in the context of the illusion which the undercover police were endeavouring to create and in the context of the fact that such circumstances were likely to encourage exaggeration and bravado. In relation to the issue of the offer of payment of the sum of $10,000 and the actual payment to you of $1,000, I am satisfied that that payment is a factor mixed in with other factors which led you to commit the offence, and although I am not able to be satisfied beyond reasonable doubt that it is the sole or indeed the principal motivation for your conduct, it remains a matter of some considerable relevance. In my view the fact that you were prepared to use a shotgun to inflict horrendous injuries upon your victim in return for money, as well as in satisfaction of personal animus against him places your conduct at a high level of criminality. This is all the more so where having fired one cartridge into your victim you attempted to shoot him a second time.
I have been told something of your personal history and your circumstances. You were born on 11 January 1965 and accordingly you are now 39 years of age. You are one of four children being the eldest male in your family. None of your siblings has a criminal record. You endured a violent childhood. You were often beaten by your father and I am informed that you took the brunt of violence to protect your younger siblings. The need to protect the family became greater when your father deserted your mother to go to the United States. You left school whilst you were in the first term of Year 7 at Seaford Carrum High School and went out to work to support your mother and your siblings, including your younger brother, Victor. I observe that it was Victor who was involved in the animosity with your victim. You had a succession of menial labouring jobs, although your employment history was interrupted by a period of six months’ detention at Turana when you were 15 years of age. You subsequently obtained work as a labourer at the Gavicol Meatworks in Carrum Downs. I accept that the material before me establishes that your childhood and adolescence were ones of hardship.
In your early twenties you moved to Queensland and undertook farm work and fruit picking. You returned to Victoria in 1998 and I am informed by Mr Grant, which information is ably supported by your prior convictions that at that time you had a life of addiction to amphetamines and that from then on your work was intermittent only. Drugs have dominated your life since 1995 when a girlfriend of yours committed suicide. You have been a daily user of amphetamines. In recent years, whilst serving a sentence of imprisonment at Barwon Prison, you were diagnosed by a psychiatrist, Dr Bell, with having attention deficit hyperactivity syndrome.
Mr Grant relies upon this diagnosis as part of your background and as an explanation for your drug abuse, failed relationships and generally dysfunctional life. I accept that that syndrome may well form part of your background. There is of course no expert opinion before me suggesting that there is any relationship between the criminal conduct which brings you before this court and your attention deficit hyperactivity syndrome.
You have admitted before me to prior convictions. By my calculation there are over 90 such convictions involving some 21 court appearances between December 1982 and June 2001 which on more than a dozen occasions resulted in sentences of imprisonment. Whilst many of those offences are not directly relevant to the matter now before me, the nature of some of those prior convictions, and in particular the convictions for armed robbery in July 1989, robbery and recklessly causing serious injury in October 1990, armed robbery in November 1996, robbery and intentionally causing injury in January 2000 are particularly relevant to my task of sentencing you today. Those matters are highly relevant in terms of special deterrence. They are also relevant in terms of the likelihood or otherwise of your rehabilitation. Your numerous convictions and term of imprisonment appear to have done nothing to deter you from further criminality. Indeed, it was only earlier in 2002 and before this offence occurred, that you were released from Barwon Prison.
However, as well as matters personal to you such as the chances of your rehabilitation and special deterrence I must also take into account the question of general deterrence and the protection of the community from you. Regrettably, conduct such as yours has proved to be far from uncommon in this State in recent years. Those who seek to use violence for the settlement of grievances, whether for their own purpose or those of other persons, must know that if they are apprehended severe consequences will follow. I am also required by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and to impose a just punishment.
The crime of attempted murder is a most serious offence and this court must do what it can to underline the importance of the sanctity of life. The circumstances of your offence are a serious example of a serious offence. There is clearly no alternative, as indeed is properly recognised by your counsel, other than to impose a term of imprisonment upon you.
However, Mr Grant submits, that by reason of your plea of guilty and the remorse which he submits that plea demonstrates, your personal circumstances and the principles of parsimony, your sentence should be a moderate sentence. He submits specifically that your sentence should be less than that imposed in R v Guthrie[1]; R v Keshtiar[2]; R v Alipak[3]; and R v Goldman[4]. As he correctly notes, each of those cases involved a finding of guilt of attempted murder after trial and thus no discount was allowed for a plea of guilty.
[1][2002] VSC 323.
[2][2004] VSC 140.
[3][2004] VSC 206.
[4][2004] VSC 245.
The head sentence imposed in those cases ranged from seven years in Keshtiar to 14 years in Goldman. In fixing the appropriate sentence I have had regard to the views expressed by the Court of Appeal in R v Boaza[5], DPP v Adajain[6] and R v Kelly[7]. I note the comments of Chernov JA at para 18 in R v Boaza and the comments of Callaway JA at para 28 of Adajain to the effect that each case depends on its own circumstances and that other sentences are not “precedents to be applied unless they can be distinguished”. There are obvious differences in circumstances, both in relation to the criminal conduct and the personal circumstances of those convicted in the cases relied upon by Mr Grant.
[5][1999] VSCA 126.
[6][1999] VSCA 105.
[7]2000 VSCA 59
In my view, a closer analogy than the cases relied upon by Mr Grant in the case before me might be found with R v Jaafer[8] where Teague J imposed a sentence of 11 years as a head sentence upon a prisoner who had pleaded guilty to the attempted murder of a shop keeper by use of a hammer. However, even there, clear differences in circumstances can be established in that Jaafer was a heroin addict and had expressed some remorse for his conduct beyond that of his plea of guilty.
[8][2003] VSC 157.
In fixing the appropriate sentence I have taken into account the considerations set out in the Sentencing Act 1991. I have had regard to the objective gravity of the offence. As I have said, this is a grave offence. It was pre-meditated and you planned it carefully so as to avoid detection. It was a cowardly attack upon a defenceless man. The attack was at least partly motivated by payment of money. Having failed to discharge the second cartridge from the shotgun you callously left your victim close to death. That conduct calls for condign punishment and strong denunciation. Your prospects of rehabilitation are not good. It is apparent that a substantial sentence of imprisonment should be imposed. However, I accept that such a sentence must be transparently reduced by reason of your plea of guilty in the particular circumstances outlined above and by reason of other matters including your difficult personal circumstances and difficult background. Weighing up all these matters I conclude that I should convict you and sentence you to 11 years’ imprisonment. I direct that you not be eligible for parole before you have served 8 years’ imprisonment. Pursuant to s.18 of the Sentencing Act I declare that you have served 489 days by way of pre‑sentence detention and I direct that the same be noted in the records of the court.
Remove the prisoner.
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