R v Marks
[2004] VSC 484
•24 November 2004
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
No. 1512 of 2003
| THE QUEEN |
| v |
| MATTHEW JOSEPH MARKS |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 NOVEMBER 2004 | |
DATE OF SENTENCE: | 24 NOVEMBER 2004 | |
CASE MAY BE CITED AS: | R v MARKS | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 484 | |
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Criminal Law – Sentence – Murder – Premeditated killing of elderly relative for financial gain – Vicious attack in victim's home – No remorse – Importance of general deterrence – 23 years' imprisonment with a non-parole period of 18 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Ms C. Randazzo SC with Ms S. Smith | Victoria Legal Aid |
HIS HONOUR:
First of all, I publish the reasons for the ruling I made on 14 September in relation to the admissibility of evidence.
Matthew Joseph Marks, having been found guilty by a jury of the murder of your great aunt, Mrs Margaret O'Toole, at her East Malvern unit on 7 April 2002, it is now my responsibility to pass sentence upon you. In order to do so it is necessary to set out the facts surrounding the commission of this offence. The major source of those facts is the videotape confession you made to an undercover policeman "Gary Butcher" on 27 November 2002. That confession was virtually reiterated to another covert operative, "Rick Baxter" on the same date.
For a number of years you had a friendly relationship with your great aunt Mrs Margaret O'Toole. On occasions you referred to her, perhaps jovially, as your goldmine. You came to believe that you would be a primary beneficiary under her will. In the meantime she helped you financially. First, she lent you $3,000 to assist in a transaction where your motor vehicle had been repossessed. Secondly, in April 2001, she lent you some $25,000 being the net amount, after expenses, of a loan of $28,000 which she obtained by mortgaging her unit in Serrell Street, East Malvern. That money was provided in order that you could pay off debts in excess of $29,000 incurred by you on various credit card accounts. You did not, however, utilise the money for that purpose and virtually all of it was gambled away at the Crown Casino. You never informed your great aunt that you had lost the money in that manner.
In the 12 months following this loan, you made the necessary interest payments but none of the principal was paid off. By early 2002, Mrs O'Toole no longer wished to have the loan secured by a mortgage on her sole place of residence and arrangements were made to repay it utilising her superannuation money. Thereafter, you were to repay Mrs O'Toole in monthly amounts of $100 to $200. This, however, was something that you did not wish to do.
As at the beginning of April 2002 you were in debt for an amount of about $60,000. You decided that your desperate financial situation could be alleviated by killing Mrs O'Toole. This, you believed, would absolve you from any obligation to repay the debt of $28,000 which was in her name. Additionally, you believed you would derive considerable financial benefit under her will.
On Saturday 6 April at 5.19 p.m., you rang Mrs O'Toole from a public phone box near your East Oakleigh residence and arranged to meet her for dinner on the Sunday. On the afternoon of Sunday 7 April, you visited her house. You were armed with a hammer which unbeknown to your landlord Mr Andrew Zheng-McDonald, you had stolen from him. On the way to Mrs O'Toole's unit, you visited Myer Chadstone where you bought a pair of cotton gloves. These items were secreted in a bag you were carrying.
You had a drink and ate a meal with Mrs O'Toole and, shortly prior to 8.30 p.m. (the time when the movie Star Wars commenced on Channel 9) you put on the gloves, took the hammer from the bag, advanced on Mrs O'Toole from behind, and struck a number of blows to her head. There were two major areas of injury to the skull each involving multiple bone fragments. Professor Stephen Cordner, who performed the post-mortem, expressed the opinion that there would have been a minimum of 15 to 20 blows at the severe end of the spectrum of force.
In your confessional account, provided to Gary Butcher, you spoke of administering about six blows. Such a statement may be seen as either seeking to minimise the extent of your actions or as reflecting the frenzy of your attack in which the number of blows was unlikely to be known or accurately gauged.
You also told Mr Butcher that Mrs O'Toole had raised her hands to her head after the first blow. That account was supported by defensive-type injuries observed by Professor Cordner to the back of the deceased's hands.
Apart from the blows to Mrs O'Toole's head, you also struck her a number of times in the vicinity of her throat fracturing her windpipe and Adam's apple; tearing away the oesophagus; and fracturing the right collar bone. The joints attaching the collar bone to the breast bone were also fractured. On your version of events to covert operative Butcher, these injuries were also inflicted with the hammer. Again you nominated six blows.
Having killed Mrs O'Toole, you set about to cover your tracks. You pulled the mattress off the bed in the main bedroom and scattered drawers and costume jewellery around the room in order to make it appear that the room had been ransacked in the course of a burglary (albeit that there was no sign of forced entry). To further create that illusion you removed the rings from Mrs O'Toole's fingers.
At some stage you covered much of her body with a doona, perhaps to obliterate from your vision the horror of what you had done.
On your account you remained at the house for some hours, not only making sure that there were no incriminating fingerprints but also in order to gather such items as plates and cutlery which would betray the fact that two people had eaten a meal on this evening. These you placed in a plastic bag which was later disposed of by you in a nearby garbage bin in Serrell Street.
Among the items taken by you from the premises were Mrs O'Toole's house keys, credit cards and driver's licence as well as her Commonwealth Bank cheque book.
At 12.35 a.m. on 8 April, you called a Silver Top Taxi from a public call box in Dandenong Road, East Malvern, about two blocks from Serrell Street. You gave the name Mark (or possibly Marks) and indicated that the destination was Oakleigh. You were no longer at the scene when the cab despatched by the Silver Top operator arrived, apparently having hailed another taxi in the meantime.
On Tuesday 9 April, you deposited a Commonwealth Bank cheque in your ANZ Bank account. The cheque was made out in your name for the sum of $4,000. It bore the purported signature of the deceased. The evidence of the Crown handwriting expert David Black would have left no doubt in the mind of the jury that the signature was forged and the inescapable inference was that it had been forged by you. In fact you told Gary Butcher you had copied the signature from the deceased's driving licence, and pre-dated the cheque 5th April 2000. Your own lying account to the police, given when you were first arrested on 6 May 2002, was that Mrs O'Toole had willingly acceded to your request for yet more money and signed the cheque in your presence on that date.
Over the succeeding days you disposed of other items you had taken from Mrs O'Toole's premises such as the credit cards and jewellery and you also disposed of the clothes you were wearing at that time as well as the hammer and gloves. You utilised various garage bins at, or in the vicinity of, your East Oakleigh address for this purpose.
Apart from your own confession the external evidence of newspapers and uncollected mail fixed the date of Mrs O'Toole's death as 7 April. It was not until 17 April that the deceased's body was discovered by her brother Mr Paul O'Neill. In the meantime, still armed with the keys to the unit, you had returned to the deceased's premises on 15 April. You had travelled to the unit in a rental car that you had hired from Rent-a-Bomb. You told Gary Butcher you had hired the car so as not to have to travel by train or taxi. On this occasion you left the wooden door of the premises ajar. In response to a query by Rick Baxter as to the reason for your actions, you said in effect that you left the door open in the hope someone might enter the premises and steal an item or leave their fingerprints or their DNA.
In your first interview with the Homicide Squad on 6 May 2002, you denied that you were the person who had killed Mrs O'Toole. Your performance, as revealed by the video recording, was a calculating and confident one. You were subsequently released without charge by investigating police but informed that further inquiries would be made.
These inquiries involved telephone intercepts and, ultimately, a scheme involving the use of undercover police. In accordance with a model developed by Canadian police, the covert operatives, posing as a criminal gang, committed simulated crimes in which you were persuaded to take part. In the course of some 16 scenarios you were gradually incorporated into the purported criminal organisation. The overall objective was to determine your involvement, if any, in the killing of Mrs O'Toole. The operation, which commenced on 25 September and culminated on 27 November 2002, was designed to create a situation where you would feel able to confess any involvement in the killing to the crime boss Gary Butcher at a meeting in a suite at Crown Towers.
I do not intend to detail any of the scenarios in these reasons for sentence. I have set them out in detail in my published reasons for admitting the confessional evidence in this case. It is sufficient to state that you were well and truly seduced into this criminal organisation and, by the time you confessed to the killing of Mrs O'Toole, you fervently desired to be a gang member and you had the expectation of earning large sums of money from your participation in the gang's activities. I should, however, make it clear that you are not being sentenced for the criminal propensity these scenarios reveal.
Your defence to this charge of murder was a denial that you committed the crime coupled with the assertion that the confessions that you made first to Gary Butcher and later, to covert operative Rick Baxter, were total fabrications on your part.
In my reasons for admitting that material, I set out a number of factors pointing to the reliability of your confession. I do not intend to repeat them in these reasons for sentence. It is sufficient to note that the jury must have been quite satisfied of the veracity of your confession, having viewed the videotape of your detailed and relatively fluent confession to Gary Butcher and listening to the audio tape of your subsequent conversation with Rick Baxter, in which you repeat those lies and volunteer that you were glad to get the matter off your chest.
It follows from your continued denial of any involvement in the death of Mrs O'Toole, that you have not exhibited any remorse. This is quite apart from your assertion to Rick Baxter on 27 November, that you felt no sense of remorse. Nor, of course, are you able to benefit from any plea discount.
There are a number of aggravating features in this case. Your victim was an elderly relative who not only trusted you but had bestowed upon you her kindness and generosity. That trust enabled you to obtain easy access to her home. Having obtained that access you killed Mrs O'Toole in a callous and brutal fashion. Moreover, you killed her in what should have been the sanctuary and safety of her own home. Further, your crime was premeditated. On one version to covert operative Rick Baxter you said the killing was planned over three or four days. You later placed that time as "a space of a week". In order to carry out your plan you stole the hammer from Mr Zheng-McDonald and purchased the gloves from Myer Chadstone. Finally, the whole purpose of the killing was to advance your own financial well-being.
After the killing your dissembling behaviour was the cause of great anguish and anxiety amongst members of the deceased's family.
For the reasons I have enumerated this was a grave offence. Apart from punishment any sentence imposed must reflect the principle of denunciation. Additionally, this is a case where the principle of general deterrence must be given significant weight. Courts, by the sentences they impose, must seek to deter premeditated killings in general and specifically, as in this case, premeditated killings for financial gain.
It is not suggested that you have any form of serious psychiatric illness which would warrant any moderation of the weight to be given to the element of general deterrence.
Evidence from Mr Jeffrey Cummins, a Consulting Clinical and Forensic Psychologist, was called on your behalf in this trial and various reports of Mr Cummins were tendered. Additionally, an earlier, July 2000, psychological report of Mr Ian Joblin, a Forensic Psychologist, was before the Court. None of this material explains or justifies the killing itself; none of it serves to reduce your moral culpability. It is, however, material to which I have regard in considering matters personal to you which are pertinent to the sentence which is to be imposed.
Before turning to your personal history, I wish to say something about the deceased. Mrs Margaret O'Toole was 69 years old at the time of her death. She was a widow and lived alone in her East Malvern unit. Prior to her retirement Mrs O'Toole had, for many years, been the personal secretary to the Chief Executive of the Victorian Country Fire Authority. Mrs O'Toole lived an active life taking part in exercise and swimming classes and attending the movies. She kept in contact with family members and the picture which emerges is that of a warm and generous person. In his Victim Impact Statement her brother, Mr Paul O'Neill, describes the extremely traumatic experience of finding the body of his sister with whom he had a close relationship. He writes of the ongoing effect of Mrs O'Toole's death on his wife, their children and their family. Indeed, two of his granddaughters have required counselling. The untimely death of Margaret O'Toole, and the manner in which it occurred, is something from which Mr Paul O'Neill and his family will never fully recover.
Matthew Marks, you are currently 28 years of age having been born in Melbourne on 4 September 1976. Your parents separated when you were aged about 21 or 22. You remained with your father in the matrimonial home at Epping for the next 12 months while he prepared the house for sale. Your elder sister and younger brother resided with your mother in a two bedroom unit in Camberwell. According to your instructions to Mr Cummins, you were extremely upset by the separation and felt yourself abandoned by both parents. Indeed, you attribute your consumption of alcohol and gambling to these events. Your father, who now lives in the country town of Tungamah, worked as a mechanic but is now in receipt of a disability support pension. Your mother, who remains supportive of you, works as a Canteen Supervisor.
In terms of your family life you describe your father as being an alcoholic and his drinking and violence as causing problems from when you were aged 13 or 14. You recount episodes in which your father punched the wall, sometimes putting holes in it. On two occasions you witnessed him hitting your mother with an open hand across the face and, apart from being a recipient of verbal violence and intimidation, you stated that your father would slap you across the face and punch you in the arm. His conduct apparently abated during your later teenage years. Whilst you have a relatively close relationship with your mother, you have indicated you have no bond with your father.
In terms of education, you attended Greenbrook Primary School in Epping to Grade 6 level and Peter Lalor Secondary College in Years 7 and 8. You then transferred to Northcote High School where you were form captain in years 10, 11 and 12. Although you had few close friends at school you were involved in competition table tennis and you were also the chess captain in Year 12. You passed your VCE in 1994, obtaining a TER score of 85.55 and, at the age of 18, you commenced a Bachelor of Business at Swinburne University in Hawthorn. You passed all subjects for the first two years of the degree and you were majoring in accounting and computing. In 1997 you deferred your studies for a year for the purpose of pursuing work experience. This you did, but after your parents separated you decided to take a further year off before returning to your tertiary studies. In the result you did not complete your University course. You were employed for various lengths of time by such organisations as TMP Worldwide for whom you did data entry, clerical work and filing at Australia Post and TXU. At the time of the covert operation you were working in an accounting role for Mayne Health in St Kilda Road, Melbourne. In that time you had been working with them for about one and a half years. The reliance on alcohol to which you referred was apparently constituted by about four to six stubbies per night. It was not, however, suggested in the material that this affected your lifestyle or employment. There can, however, be no doubt that you were a problem gambler.
It was while you were employed at TXU that you stole a large number of laptop computers from that organisation. These offences occurred over a period of months and the value of the stolen computers was estimated at some $98,000. Your modus operandi was to advertise the computers in the Trading Post and you told Mr Cummins that you received about $20,000 to $25,000 from the sale of them. You pleaded guilty at the Melbourne Magistrates' Court in July 2000 to six charges of theft as well as burglary and obtaining property by deception. You were sentenced to be released on a community based order for a period of 18 months and paid an aggragate fine of $2,500. You told this Court that, after undergoing a court directed psychiatric assessment, you were treated for some 18 months by a psychologist named Faye Oberklaid. There was no report from Ms Oberklaid before the Court. Previously, when you were aged about 13 or 14 and you were attending Northcote High School, you stole the school keys, entered the school at weekends and systematically stole a number of items from the staff room. Rather than report the matter to the police, the school insisted that you seek psychiatric assistance which you did from a Dr Maxwell Kacs at Northpark Hospital at Bundoora. You were treated by Dr Kacs for approximately one year and at one stage you were prescribed Prozac. This period coincided with the domestic turmoil you were experiencing. Neither your teenage episode of dishonesty nor your previous convictions in July 2000 are relevant to the sentence I must impose on you.
Your subsequent contact with health professionals was, as I have indicated, with Mr Joblin and with Mr Cummins. The former diagnosed you as lacking self-esteem and self-confidence, almost to a serious pathological level, and discerned symptoms of a dependent personality, while the latter expressed the opinion that you suffer from a borderline personality disorder as well as elements of a dependent personality disorder and an adjustment disorder. Mr Cummins also diagnosed you as having a pathological gambling disorder.
In cross-examination at your trial, Mr Cummins conceded that you also possess sufficient of the diagnostic criteria applicable to an anti-social personality disorder but maintained his original diagnosis. Neither Mr Joblin nor Mr Cummins regarded you as being psychotic or schizophrenic.
It is clear that you are somewhat of a loner having only had one really close friend, Dean Vlek. You were, however, able to form transient relationships of a homosexual nature, meeting people you had initially made contact with in computer chat rooms. You told the Court that the duration of these relationships could be anything from a one night stand to about one month.
Both psychologists regard you as having above average intelligence. Having had the opportunity of observing you in the witness box over a number of days I would agree with that assessment. However, on the basis of your antecedents and your conduct both in the commission of the present offence and its aftermath, I do not regard you as having the low level of self-esteem and the high level of compliance which they attribute to you.
In terms of rehabilitation, you are relatively young, you are intelligent and you have the support of your mother and apparently that of your brother and sister. Although, as Mr Cummins notes in a supplementary report to this Court dated 4 November 2004, personality disorders such as borderline personality disorder are difficult to treat, he nevertheless states in his report:
"In my opinion Mr Marks presents as being overly compliant and to the point where he is pathologically keen to please. Sometimes these personality characteristics can be beneficial for the treatment process and can be utilised to increase a patient's level of motivation for change and to persuade the patient of the merits of personality change. Further, in my opinion Mr Marks has significant attachment problems which generally increases the probability that the patient is able to form the necessary rapport in these therapeutic relationships. Finally it is my opinion that Mr Marks has an intellectual ability of an adequate level to facilitate the insight- orientated process."
Additionally, Mr Cummins sees you as motivated to increase your level of self-esteem and notes that any treatment would be facilitated by your acceptance of the jury verdict of guilt.
As I have indicated, on all of the material before the Court, I am not as convinced as Mr Cummins as to your level of self-esteem or as to the compliant nature of your personality; nor do you presently accept your responsibility for the death of Mrs O'Toole. In the circumstances one can express hope rather than confidence in your capacity for rehabilitation.
I am instructed that you are presently utilising your time in custody as a food billet and that you are also engaged in a food handlers course. These activities are to your credit and evince a willingness to undertake courses in the prison setting which may later prove to be of benefit to you in your future development.
Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, denunciation, specific and general deterrence, and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of 23 years. I fix a minimum period of 18 years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 729 days, inclusive of today's date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.
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