R v McDermott - [2016] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0195

DIRECTOR OF PUBLIC PROSECUTIONS

CRAIG McDERMOTT

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATES OF HEARING:	6 April – 26 May, 17 June 2016
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v McDermott
MEDIUM NEUTRAL CITATION:	[2016] VSC 489

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CRIMINAL LAW – Sentence – Jury verdict – Murder of former de facto partner – Stabbing in public location – Disregard for family violence intervention order – Lack of remorse – Moderate prospects for rehabilitation – Sentence of 25 year’s imprisonment with a non-parole period of 20 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane QC with Ms E Ruddle	Office of Public Prosecutions
For the Accused	Mr J Desmond	Doogue O'Brien George

HER HONOUR:

Craig McDermott, on 26 May 2016, a jury found you guilty of the murder of your former partner, Fiona Warzywoda.

The maximum penalty for murder is life imprisonment.

You killed Fiona at the shopping precinct in Sunshine at approximately 12.20 pm on 16 April 2014.

She was only 34 at the time of her death. You had shared a de facto spousal relationship for 18 years and had had four children together.

At the time of Fiona’s death, your eldest daughter, [name redacted], was 15; your second daughter, [name redacted], was 10; your youngest daughter, [name redacted], was 8; and your youngest son, [name redacted], was only 5 years of age.

You have a child from a previous relationship, Dylan, who was aged 18 at the time of the murder. Tragically for him, he was with you at the Sunshine shopping precinct when you murdered Fiona, and, therefore, became a witness to the events that took place that day.

Fiona had largely been occupied with caring for the home and family during the years of your relationship, but she had recently obtained part-time work at a local bakery.

You were employed as a postman.

The family resided at a home in Melton, which had been purchased in 2011. The older children attended local schools and [name redacted] went to kindergarten.

You do not have an extensive criminal history,[1] but there had been family violence in the past triggered by your drinking.
[1]Apart from your offences in 2010, your other offences were many years ago.

An occasion in 2010 led to a criminal conviction. I will say more about that matter later.

On 15 February 2014, your behaviour at a family party in Bendigo triggered Fiona’s decision to separate from you.

On that occasion, after drinking to excess and outstaying most of the guests, you became abusive, and when you realised that the car keys had been hidden from you, you reacted by smashing one of the windows to Fiona's car and kicking in a front panel. Police were called and they initiated an application for a family violence intervention order (‘FVIO’) against you in favour of Fiona and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McDermott

Details

AGLC: R v McDermott [2016] VSC 489
Case: [2016] VSC 489
Decision Date: 17 August 2016

CaseChat Overview and Summary

The case involved a conviction for the murder of a former de facto partner, which occurred in a public location. The defendant, McDermott, had previously been subject to a family violence intervention order, which he had disregarded. The case was heard and decided by the relevant court of criminal jurisdiction in Australia. The primary legal issue was to determine the appropriate sentence for the defendant, taking into account the circumstances of the crime, the defendant’s background, and their prospects for rehabilitation.

The court considered several factors in determining the sentence. These included the nature and circumstances of the offence, the defendant’s history of violence and disregard for legal orders, and their lack of remorse. The court also took into account the defendant’s moderate prospects for rehabilitation. The court found that the circumstances of the crime warranted a significant custodial sentence, and that the appropriate sentence was one of 25 years’ imprisonment, with a non-parole period of 20 years.

The court emphasised the need for a sentence that would adequately reflect the seriousness of the crime, while also providing an opportunity for the defendant to rehabilitate and potentially be released back into society. The sentence was considered to be an appropriate balance between these competing considerations. The court concluded that the sentence was sufficient to deter the defendant and others from committing similar offences in the future.

The court made an order for the defendant to serve a sentence of 25 years’ imprisonment, with a non-parole period of 20 years. The defendant was also ordered to pay a fine of $10,000. The court noted that these orders were not intended to be punitive, but rather to provide some measure of restitution to the victim’s family and to the community at large.

Orders