R v Martin
[2003] VSC 197
•27 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1492 of 2001
| THE QUEEN |
| v |
| MICHAEL PAUL MARTIN |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6-8, 11-15, 19-22, 25-27 NOVEMBER 2002, 26 MAY 2003 | |
DATE OF SENTENCE: | 27 MAY 2003 | |
CASE MAY BE CITED AS: | R v MARTIN | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 197 | |
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Murder – Sentence – Alcoholism.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams (Mr W. Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr A. Lewis | Kerry Clancy |
HIS HONOUR:
Michael Paul Martin, you have been found guilty by a jury of the murder of Robert John Pretty at Wangaratta on the 12 February 2001. At the date of the deceased's death you were aged 39 and Mr Pretty was aged 57. Both you and he had been alcoholics for many years.
On that day you went to the deceased man's home unit with one O'Loughlin, at approximately 10.30 a.m. The deceased invited you into his home and offered you moselle to drink, from a cask in the fridge. The three of you then drank together in the lounge room. Shortly after midday you walked down to the Town and Country Hotel with O'Loughlin, to buy more alcohol with money provided by the deceased man. The hotel was approximately 20 minutes walk from Mr Pretty's home unit. The cash register records the purchase occurred at 12.37 p.m.
After purchasing moselle and some bottles of stout, you walked back to the deceased's home unit and the three of you re-commenced drinking. During the course of the afternoon a series of altercations broke out between you and the deceased. You accused the deceased of touching you up and when the deceased denied this, you three times attacked him in the lounge room where you were drinking.
On the first occasion you grabbed him by the shirt and neck and lifted him bodily, so that he was choking. You were separated by O'Loughlin, but grabbed him again in a similar fashion, again requiring O'Loughlin's intervention.
After some further drinking, you again accused the deceased man in similar terms and after a further denial by him, you took him by the shoulders and shook him violently. After this episode and a further passage of drinking, you obtained a towel and having folded it around the deceased's throat, commenced to choke him. Again, O'Loughlin had to separate you. Again, once this had occurred, drinking recommenced.
There is no evidence that at any stage during the afternoon the deceased acted in a violent or aggressive way towards you.
Some time after the incident in which you attempted to choke Mr Pretty with a towel, he retired to his bedroom and sat on his bed. O'Loughlin followed him into the bedroom to check how he was. O'Loughlin says that Mr Pretty was nervous, but that after you came into the bedroom and some further discussion occurred, things quietened down.
O'Loughlin then left the bedroom and recommenced drinking alone in the lounge room. The bedroom door was shut and O'Loughlin subsequently heard a thud. When the door was opened a little later, Mr Pretty's body could be seen with a towel knotted around the throat and a carving knife protruding from a fatal wound to the chest.
On or after coming out of the room you told O'Loughlin: "It's over" and when asked: "What, did you sort things out?" You replied: "You might say that." You then forbad O'Loughlin in threatening terms from contacting the police and the two of you continued drinking until shortly after 6.00 p.m. At that point in time you fell asleep on the floor of the unit and O'Loughlin left and rang the police, who attended the scene.
Your blood alcohol content, as analysed from a sample taken at 9.10 p.m. that evening, was 0.295. The deceased man's blood alcohol content at the time of death was 0.36.
During a video-taped interview conducted early the next morning, after you had had the benefit of sleeping for a period of time, you stated that you did not recollect the killing, but did recollect homosexual advances being made to you by the deceased man on the afternoon in question.
You further said that such advances were particularly upsetting to you because you had suffered molestation as a child. The High Court has made it clear in the case of Cheung[1], that it is incumbent on me to form my own view as to these matters. In R v. Olbrich[2], the High Court adopted what was said by the majority of the Victorian Court of Appeal in R v. Storey[3],to the effect that a Judge when sentencing may not take facts into account in a way adverse to the interest of the offender unless those facts have been established beyond reasonable doubt, but if there are circumstances which the Judge proposes to taken into account in favour of the offender it is enough if these circumstances are proved on the balance of probabilities.
[1](2001) 209 CLR 1
[2](1999) 194 CLR 270 at 280
[3](1998) 1 VR 359 at 369
Mr Pretty was an invalid pensioner who was your daily drinking companion. He provided you with money for alcohol and let you use his home to wash your clothes. He had suffered some intellectual damage as a result of long-term alcohol abuse and required a stick to support himself to get around. He was relatively frail and fell over regularly. You were physically dominant over him and, indeed, used commonly to pick him up when he fell over during drinking sessions. The man you killed was not in any sense able to stand up to you and was, further, a man who had offered you ongoing hospitality and companionship. These matters exacerbate your crime. In my view, there are only limited circumstances pertaining to the killing that may be said to raise factors of mitigation which in some way explain your behaviour and lessen your moral culpability. They are as follows.
Firstly, the crime was not premeditated, but I accept was one of spontaneous anger.
Secondly, it is clear that you had consumed a very substantial quantity of alcohol at the time of the killing. I am satisfied that your blood alcohol content was at least 0.2 and probably somewhat higher, although I do not accept that it is likely that it was higher than 0.295 because although I accept your blood alcohol content may have risen as high as 0.4 at 6.00 p.m, nevertheless, it is clear that this situation resulted in part from substantial consumption of alcohol after the killing. In addition to alcohol, you were affected by medication, namely, Benzodiazepam and this may also have contributed to the effects of alcohol upon you. I am also persuaded on the basis of the evidence given at the trial that you are a longstanding sufferer from chronic alcoholism and your alcohol affected behaviour was, thus, in part a direct result of your addictive condition. Because of your alcoholism you were able to tolerate a far higher blood alcohol content than a normal person before becoming dysfunctional, but although you did, as the jury has implicitly held, kill Mr Pretty with deliberate and murderous intent such intent must be regarded as at least a partly drunken intent. It is likely that not only did alcohol disinhibit you, but that it inflamed your anger so that you continued to argue with and assault Mr Pretty where a person unaffected by alcohol would simply have walked away.
The third matter that arises from the facts which might be said to count in your favour is this. I accept that your childhood was a very difficult one and that you were sent away by your natural parents at the age of two and were not placed in a stable foster home until the age of 10. Furthermore, despite the inconsistencies of the accounts which you have given over time I accept that it is probable you were subject to sexual molestation at some time during this period between the ages of two and 10. I accept that it is probable, as Mr Joblin states, that your alcoholism and consequent drinking is in turn related, at least partly, to this childhood abuse. I also accept that such abuse is likely to have made you more susceptible to anger and to turn to violence when confronted with circumstances which subjectively provoked you by reason of sexual implications.
The fourth matter that arises with respect to the facts of this case is that I further accept that at some stage of your relationship Mr Pretty did make sexual advances to you, including the touching incident in the park referred to in your statements to Mr Joblin and which occurred some six months prior to the murder. I accept that because of your childhood experiences these advances were particularly unwelcome to you, coming as they did from an older man with whom you were in a relationship of some dependence as he supplied you with free alcohol with which to assuage your alcoholism. Nevertheless, by its verdict a jury has rejected the defence of provocation put forward on your behalf at the trial. Moreover, I am not satisfied on the balance of probabilities that on the day of his death Mr Pretty made any sexual advances to you.
The making of such advances was specifically denied by you, in your discussions with Mr Joblin, whom you saw on four occasions prior to the trial. Furthermore, no such advances were observed by the witness O'Loughlin. In the same record of interview in which you purport to recall sexual advances being made to you, you also assert simultaneously that you have no recollection of causing harm to Mr Pretty, or indeed, of the manner of Mr Pretty's death.
Having regard to Mr O'Loughlin's account of the course of events, I do not find your record of interview credible, despite accepting, as I must, that alcoholism and substantial drinking may cause selective memory loss. Having said this, I am satisfied that on the afternoon in question, the deceased made a series of false denials to you, in that O'Loughlin's evidence shows the deceased repeatedly denied that he had "touched you up", whereas, as I have found, he had, on at least one previous occasion, acted in this way. I further accept that such false denials might, in themselves, provoke a reaction of anger on your part, particularly having regard to the fact of your childhood sexual abuse. It is not uncommon for victims of such abuse to find the fact of denial of sexual advances by others extremely traumatic. In your case, Mr Pretty was an older man who was, in effect, in a position of some authority, in terms of your daily life, in that he was the ongoing provider of alcohol. Moreover, it is apparent that the process of confrontation, with respect to denials, escalated over the course of the afternoon. In other words, it was persistent and repeated denials, which appear to have increasingly aggravated you.
The chief Crown Prosecutor has very fairly put to me, and I accept, that provided I am satisfied that there was a background of unwelcome sexual advances and that the killing occurred as a result of angry argument arising in relation to this, when you were affected and disinhibited by alcohol, the fact that I may not be satisfied a sexual advance actually occurred on the afternoon in question is of little relative significance in explaining your conduct and evaluating your culpability
Having said this, I am not to be taken as accepting that such provocation as you may have found in Mr Pretty's statements on the afternoon in question, can in any way be regarded as justifying violence, let alone an attack with murderous intent. Moreover, I note that you did not express remorse for causing Mr Pretty's death until after your conviction.
In substance, I have accepted that the crime was not premeditated and that there was a trigger to your actions which was, in part, inflammatory in its effect upon you, firstly because of the effects of alcohol, and secondly, because of your history of childhood abuse.
As the Court of Appeal has made clear, in R v. A.W.F.(1)[4], the fact of childhood sexual abuse may be relevant to sentencing, both as a partial explanation of criminal conduct, and in relation to the personal circumstances of an offender, in so far as it goes to moral culpability and rehabilitation. In A.W.F., Chernov JA said, at paragraph 34:
"In my view, given the evidence to which I have referred, the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct; moreover, what weight is to be given to it is another matter; but that such a factor is relevant to sentencing consideration is, to my mind, clear."
[4](2000) 2 VR 1
I turn now to your personal circumstances. You were born on 23 January 1962. You are now 41 years of age, and you were 39 when the offence took place. You lived with your natural parents until you were two years old, at which time you were taken into a home in Carlton. It is unclear exactly where you lived, or in what circumstances, in the following years, but you were eventually fostered by the Martin family. It appears that you had a good relationship with the Martins, although Mrs Martin was very strict with you.
You have reported a history of childhood sexual abuse to various people, including Mr Joblin and Karen Morton. Whilst it is clear that the narrative in
Mr Joblin's report cannot be completely accurate, I accept that you were sexually abused as a child by someone who was in the position of a foster father, or otherwise in authority over you, and that this abuse has continued to detrimentally affect you during your adult life.
You have had limited formal education, and I note that Mr Joblin's report states that you are barely literate. It appears that you commenced, but did not complete Form 3 at High School. You had various jobs, none of which have lasted. I note, in particular, your time at Bundoora Golf Course, where you clearly displayed a talent for golf and where you gave golf lessons and which suggests you are not without some promise in terms of employability.
You have two children, a son and a daughter, with your former de facto, Karen Morton. You lived in a de facto relationship with Ms Morton for around seven years. That relationship broke down because of your problems with alcohol. However, it appears that you have maintained a friendship and that you are in ongoing contact with both her and your children. Your son Curtis is now 12 and your daughter Angel Lee is 8. You also have a step-son Brian.
Ms Morton has given evidence that you have always been a good father to your children and have always loved them. Further, it is apparent that you send such money as you can to Ms Morton for the children. You must be aware, that by your actions you have hurt and damaged not only Mr Pretty and yourself, but also those you love.
You have a history of extensive alcohol abuse, going back to your teenage years. Mr Joblin describes this alcohol abuse as extraordinary, and confirms that you are appropriately to be diagnosed as an alcoholic. It is clear that this has impacted on all aspects of your life, including your personal relationships, your employment history, your health and to some extent, your mental capacities.
I note particularly the following from Mr Joblin's report. "He reported that often he cannot remember what he is doing when he drinks. Those with whom he has lived has complained about his drinking. He cannot stop drinking without a struggle, after one or two drinks. He drinks anywhere and at any time. He has attended Alcoholics' Anonymous ... Drinking has caused problems between him and relationships. He has had trouble at work, lost jobs because of alcohol abuse. He has gone onto binges, drinking for days on end. He has liver problems."
I further accept as probable, the link made by Mr Joblin between the sexual abuse you suffered as a child and your later problems with alcohol. I note that you have been alcohol free whilst you have been in gaol and that the report prepared by ARBIAS, notes that you are "immensely pleased" by the difference this has made to your day to day functioning.
The material tendered to me also confirms that since you have been in custody you have actively participated in a series of programs directed to giving you greater insight in relation to substance abuse and to giving you better employment skills. It is apparent you have shown substantial application in trying to get yourself back on the rails and to contributing towards the care of your family by earning what you can.
You have a history of previous offending, going back to 1980 when you were 18. These offences include using offensive language, theft and property offences, unlicensed driving, drug offences, causing wilful damage, assault, being drunk in a public place and one instance of trafficking. It seems that whilst you have spent time in gaol for some of these offences, the periods of imprisonment have been quite short and in a number of instances you have received suspended sentences. It is clear that many, if not all, of these offences took place in the context of your alcohol problems. It is to be observed that this is a long history of offending and includes offences of violence.
On the other hand, I note that there appears to have been a period of six years in which you did not come before the courts, corresponding to the period of your relationship with Ms Morton, and prior to the offence which brings you before me, there were no serious offences for over a decade.
Having regard to all the above matters, I have reached the following conclusions. It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just, in all the circumstances. The deliberate taking of a human life must never be regarded by the courts as being anything other than a matter of the utmost seriousness. It has been said and truly said, that much can be judged about a community by the way it cares for and treats the most vulnerable and disadvantaged persons within it.
Mr Pretty was such a person. He was an alcoholic invalid pensioner. The fundamental principles underlying the law of this state require the value of Mr Petty's right to life to be respected. Such persons are not to be written off as no value, because some members of the community might regard them as "no hopers". If the court took that approach, the notion of respect for the fundamental sanctity of life would be meaningless. This notion lies at the heart of the law relating to homicide.
In the present case there are no Victim Impact Statements, because your victim is dead and it appears no-one else was so close to him as to be able to articulate the effects of his death from a personal perspective. In such a case the court itself must speak for the community, in condemning your actions and making clear that such conduct must be punished.
Next, there are a series of objective circumstances which must be regarded as aggravating your offence. The most significant of these are that the killing was the deliberate culmination of a series of assaults over the course of the afternoon and that your victim was very significantly vulnerable, being both physically in your power and himself affected by alcohol.
Next, there are some both objective and subjective circumstances which can be identified as partly explaining your conduct. You yourself were materially affected by alcohol. You were also vulnerable to anger, as a result of childhood sexual abuse, and in particular to anger with respect to matters associated with sexual advances from an older man.
In addition, I must have regard to your personal circumstances. As I have indicated, I accept that you had a difficult childhood and that your early childhood included a traumatic element of child abuse. Subsequently, you have developed severe ongoing problems with alcoholism. It is apparent both from the reports tendered to me and from direct observation of the difference in your physical appearance in the video tape made shortly after your arrest from your current appearance that withdrawal from alcohol has effected a material improvement upon you since you have been held in custody.
It is apparent that for many years you have been a danger to yourself and to the community at large when affected by alcohol. Prior to the murder of Mr Pretty you had accumulated a wide range of convictions for matters relating to public disorder, assaults, driving offences, offences of dishonesty and drug related offences. Mr Lewis has submitted that these matters reflect an ongoing problem with respect to alcohol abuse. I accept that this is so and that the six year break in convictions which I have noted in your history also appears to reflect that, at least for one extended period of your adult life you were able to control yourself while in a stable relationship. Nevertheless, your record coupled with your current conviction is significant evidence that there is a real risk of further violent behaviour by you unless you can learn to alter your ways. It is also a tragic tale demonstrating the potential effects of over-indulgence in alcohol. A violent crime such as murder linked to alcohol abuse requires the court to reinforce the message of danger implicit in your history and impose a punishment not only to deter you, but also other potential offenders from similar conduct in the future.
I must also, however, consider the prospects of rehabilitation. I accept the evidence of your former de facto; that you have been and are loving towards her and your children. I accept her evidence that there is good in you and I have particular regard to the evidence given by Ms Morton as to the strength of your relationship with your children. You are a lucky man, given your history, to have someone prepared to give the evidence she gave. I also accept that you have been able to behave in a stable and positive way while in gaol and have demonstrated significant improvements in your physical, mental and social skills.
In my view, the above matters lead to the conclusion that ultimately you will be faced with two stark alternatives in your life. You will either relapse into alcoholism and destroy your own life finally as a father and as an individual causing incidental and potentially significant damage to others, or, on the other hand, you will come to grips with your condition in which case your prognosis is not without hope. In large part the choice between these alternatives will be yours, but I accept the submission of Mr Lewis that the chances of a successful rehabilitation are likely to be materially improved if you are the subject of ongoing supervision and support for a longer period than would normally follow upon release from custody. For that reason, I propose to facilitate a substantial period of parole. I do so not simply because it is in your interests, but, equally, because it is in the best interests of the community. In this regard, I rely upon the conclusions of the ARBIAS Report which has been tendered to me.
Mr Martin, having regard to the above matters and to the purposes set out in s.5 of the Sentencing Act 1991 I sentence you to a term of 16 years' imprisonment for the murder of Robert John Pretty. I fix a non-parole period of 11 years. I declare pursuant to s.18(4) of the Sentencing Act 1991 that you have already served a period of 834 days in custody.
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