R v McCullagh

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1439 of 2000

THE QUEEN

FRANCIS JOHN McCULLAGH

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2006
DATE OF SENTENCE:	30 March 2006
CASE MAY BE CITED AS:	R v McCullagh
MEDIUM NEUTRAL CITATION:	[2006] VSC 519

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Second re trial – Murder – Provocation – Drug Affected – serious violent offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Thomas SC	Angela Cannon
Mr G.M. Hughan	Solicitor for Office of Public Prosecutions
For the Accused	Mr D. Sheales	Theo Magazis
Mr M. Croucher
HER HONOUR:

Francis John McCullagh, you have been found guilty by a jury of the murder of Melanie Ann Hearnden on 11 September 1999. The reason for the delay in this trial is that you have been tried twice before on the same charge with the jury convicting you on both occasions of murder. Equally you have been granted a re-trial by the Court of Appeal in relation to both earlier decisions.
You were initially sentenced by Cummins J on 15 December 2000 to a sentence of 22 years with a non-parole period of 19 years. On 6 February 2003, at the conclusion of your second trial, you were sentenced by Gillard J to a sentence of 20 years' imprisonment with a non-parole period of 16 years. His Honour Gillard J made a lengthy assessment of the facts and your background material and I do not disagree in the main with what he found in those facts but as his Honour stated, it is necessary for the sentencing judge to form her own view of the facts and I do so.
Your criminal history has some relevance to the facts as it supports the view that I form of the evidence that was placed before the court. In 1990 you were convicted of assaulting and resisting a police officer and being drunk in a public place. You were fined $750 on the assault charge and $400 each on the other charges. Then again in June 1997, you were convicted of causing serious injury intentionally and false imprisonment and you were sentenced to two and a half years on the injury charge and nine months' imprisonment on the false imprisonment charge. In relation to that charge there was some cumulation which made a total sentence of two years and nine months with a minimum of 12 months to be served before being eligible for parole. You then had a breach of intervention order in July 1997 for which you were fined $300.
The most serious of those offences related to your then ex-de facto, a person from whom you had been separated and then, shortly before the offences, reconciled. Together you had three children who were then quite young. I was informed that the circumstances of the offence were that you believed after the resumption of your relationship that your partner had become involved with another man. You did not believe her denials and as a result you took her ultimately out to the country and subjected her to abuse, insult and violence whilst continually accusing her of infidelity. It is clear that this went on for some time. It is clear that the court sentencing you formed an adverse view of the facts which is reflected in the sentence. Equally it is clear that your rage and aggression at that time was not fuelled by illicit drug use as it was on this occasion.
In April 1998, you were granted parole. You completed a three month intensive parole course undergoing anger management and counselling in respect of your aggression. Despite this, in 1998 you were involved in a fight with a bouncer and on another occasion a fight during the St Patrick's Day march and were charged with offences relating to both of those matters. Your parole was cancelled in December 1990. You did not surrender yourself for that breach of parole and effectively went on the run, thus at the time of the commission of this offence you were in breach of your parole and living transiently.
It has been submitted by your counsel that it was at this point you really started to abuse amphetamines to the serious level that was occurring around the time of the murder. As I said, what those prior convictions indicate to me or prior history generally is that it makes it clear that you have had significant problems in dealing with your anger and you have very poor impulse control.
Your family background is that you were born in Belfast, came to Australia when you were still an infant. Your family was initially a little transient eventually settling in Cranbourne by the time you were 11 years of age. Your father worked as a plumber and your mother in cleaning services at the Frankston Hospital. You have two sisters who are married with children. One of those sisters gave evidence before me in this trial and it was submitted that they have had no conflict with the law. You are apparently close to your mother and sisters and that was evident from the trial.
Your parents separated as I worked it out about 16 years ago and there has been no contact with your father since that time. Your father abused alcohol and had significant problems with aggression and violence, that violence being metered out to your mother in the main although you were also a recipient of it at times. It is unfortunate that this man was the role model that you had in your life for treatment of women because it does appear that you have inherited similar problems to him.
You attended primary school and then Cranbourne High School but you were asked to leave in Year 7 due to altercations with other pupils. After assessment by the Education Department Psychology Unit you attended Ballam Park Technical School for Years 8 and 9, that being the only school that would accept you with your problems. At the age of 15 you left school and went to work for a drainage contractor. By the age of 17 you were sub-contracting to him, you were in a partnership in a drainage business by the age of 19, and ultimately you registered your own business and you were running that for some years. It appears that you were a hard worker, you worked long hours and you made a success of that business. That business ceased at the time that you were in prison. At that time all of your equipment was placed into storage and your business no longer existed.
You had developed a relationship when you were aged about 20 with Danielle Tantram. She was aged about 19. There are three children of this relationship who are now aged, as I ascertain it, 15 through to 11.
This relationship was the one where Ms Tantram was the victim of your aggression and hostility and for which you are imprisoned. It appears that in recent years Ms Tantram has reconciled the past offences and you now have a relationship with her based upon your children. That is, she is not resuming a relationship with you as a partner, but she has been bringing the children to visit you in prison and helping you to re-establish the relationship with you. Can I say that you are most fortunate to have that opportunity and she has demonstrated great kindness to you in encouraging that to occur.
Equally, you are trying to make the most of this opportunity. You have done parent training skills whilst in prison, and I accept that that is to hopefully, and presumably, break the cycle that started with your father. Your counsel has made it clear that you have done a number of things whilst in prison to help you when you resume life outside prison and they include: an intensive 16 week course of attitude to violence, and that was done after completing an anger-management course of some four weeks. You have done a six week parenting course. You have also undertaken a Vic Health physical education course in the hope of becoming a personal trainer upon your release. Your efforts are to be commended.
Those matters have an impact upon the issue of specific deterrence. His Honour, Gillard J found that specific deterrence was not an issue in your sentencing, something with which I disagreed. It has become apparent though, that you are endeavouring to address the issues that have plagued you almost your whole life, and whilst you have been in custody this time you are attempting to do something about them.
Whilst I would have said that the issue of specific deterrence was an important feature at the time of your first sentencing, it is now my view that you have demonstrated such a significant change in attitude that it is no longer, to me, a significant sentencing issue.
Although I have grave doubts about the intent that the jury found that you possessed, because my view is that there were many factors that indicated that the intent was an intent to kill, I am prepared to accede to your counsel's submissions that the jury may have found that you possessed an intent to cause really serious bodily injury only. That is what his Honour Gillard J found and the basis upon which he sentenced you on the last occasion.
I have received two reports, one from Bernard Healy, clinical psychologist, dated 9 December, 2000, and the other from Dr Barry Walsh, a forensic psychiatrist, also in 2000. It would have been preferable, I must say, for there to have been some up to date reports. There was, according to Dr Barry Walsh, however, no psychiatric illness or problems in relation to you. He stated in his report, "The question remains as to whether there is any connection between his drug use, his sleep-deprived state and the offence. There is thought to be an association between aggression and amphetamine use, although this association is less clear and sustained than some literature might suggest. In general terms it is thought that a person with a vulnerability to acting in an aggressive manner, amphetamine use may exaggerate those tendencies".
It is clear that you have those tendencies, that is, aggression and violence, and you were aware that you had those tendencies, as is evidenced by your three month intensive anger management session on parole. Despite that, you chose to use and abuse amphetamines in the manner that you did here. I agree with Gillard J that you and your friend, Phillip Buttergig, exaggerated the use of amphetamines and lack of sleep over that period. But, I find that you were still clearly affected. Whilst clearly affected, it is my view that that was a conscious choice that you made. I accept that you are now remorseful for your actions and you were remorseful shortly after you had killed Ms Hearnden.
That, of course, makes it no easier for her or her family or for her daughter, who unlike your children, has lost any opportunity of having her own mother raise and care for her. The child was only three years of age at the time of her mother's death. Ms Hearnden's parents and siblings have suffered greatly, as has been demonstrated in the victim impact statements tendered on the plea.
As I indicated, Gillard J's reasons for sentence are careful and meticulous in the examination of all the material, and with the exceptions to which I have already referred, I agree with his reasoning and fact-finding. Accordingly, I do no intend to go through all of those details again. I adopt what his Honour had to say.
Pursuant to s.6D of the Sentencing Act 1991 I intend to declare that you are a serious violent offender. That is as a result of your prior conviction for a serious violent offence, and your imprisonment for that offence. Whilst I make that declaration and I take into account the protection of the community, it is in my view not a factor that requires the sentence I am going to impose to be disproportionate to the offence. That objective can be achieved by imposing a proper sentence for this offence committed in these circumstances.
It was submitted that the delay in this matter being retried for the third time is a factor which I should take into account in your favour, as this was a matter beyond your control, which would have created considerable stress upon you. That matter was taken into account by Gillard J when he imposed the sentence on the last occasion, and accordingly I note that matter and will factor it into the sentence I impose.
There is a policy rule that the sentence imposed by the court on the second or subsequent trial should not be greater than that imposed on the first or subsequent trial, and the sentence should be by and large the same. I intend to abide by that policy. As indicated, Cummins J imposed a higher sentence than Gillard J and, accordingly, it will be Gillard J's sentence that I will use as a guide.
Taking into account all the factors to which I have referred, including those contained in the sentence of Gillard J, and taking notice of the principles of totality I direct that you are to be sentenced to be imprisoned for a period of 20 years. I direct that you are to serve a minimum of 16 years before becoming eligible for parole.
Pursuant to s.60 of the Sentencing Act I declare you to be a serious violent offender. I declare that you have served 1785 days in pre-sentence detention and direct that such should be noted in the records of the court.
I further make an order pursuant to s.464ZF of the Crimes Act by consent.

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[2006] VSC 519

30 March 2006