R v McDonald
[2012] VSC 463
•10 October 2012
| THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0104 of 2010
| THE QUEEN |
| v |
| GREGORY MICHAEL McDONALD |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2012 | |
DATE OF SENTENCE: | 10 October 2012 | |
CASE MAY BE CITED AS: | R v McDonald | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 463 | |
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Plea of Guilty – Manslaughter, violent bashing, drug and alcohol consumption, intense and inappropriate expression of anger, poor prospects of rehabilitation, prior history of violent offences, non Verdins psychiatric history.
Sentence: 10 years with a minimum of 7 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Elston SC | Office of Public Prosecutions |
| For the Accused | Mr P Higham | James Dowsley & Associates |
HER HONOUR:
Gregory Michael McDonald, you have pleaded guilty to the manslaughter of Jeffrey Dean Gregg at Frankston on 5 April 2011, for which the maximum penalty is 20 years imprisonment.
You were born on 20 July 1978 meaning you are currently 34 years of age and 33 at the time you committed this offence. You have a highly relevant and significant history of prior criminal offending, however, before I deal with those matters, I will outline the circumstances under which you killed Mr Gregg.
You had been living at Unit 1, No 1 Bell Street, Frankston for approximately 7 to 10 days prior to the death of Mr Gregg, who lived next door at Unit 2. He had been in an on and off relationship with Fiona Harkness, the actual occupier of Unit 1, who had allowed you to move into the premises at the time that you were struggling with housing, having no permanent accommodation. You only knew Mr Gregg as a result of living in the unit. There was no history of any violence between yourself and Mr Gregg or Ms Harkness.
On 5 April, Mr Gregg and Ms Harkness effectively spent most of the day in her bedroom watching television. You spoke to Ms Harkness from time to time in respect of purchasing food for the household and went to the local shops, where you purchased a number of items which included a four pack of Wild Turkey bourbon, specifically purchased for Ms Harkness. After your return, Mr Stephen Moore came and the two of you were in the unit drinking some beer. As the day went on, at one point you went in to ask Ms Harkness if you could have one of the Wild Turkey bourbon stubbies that you had purchased. She refused and an argument developed between you, with you becoming very irate and stating that you were going to move out. You asked your friend, Mr Moore, to move his car into the driveway and you started packing your belongings into the car, assisted by Mr Moore.
When you were outside the premises and ready to leave, you said to Mr Moore, that you had forgotten a couple of things in the bathroom and went back inside. When you returned inside you went to Ms Harness’s bedroom and the argument escalated and covered a number of areas of dispute. The argument appeared to be between you and Ms Harkness, with Mr Gregg not really contributing, but somehow he became, quite obviously and quickly, the target for your anger. You went around to his side of the bed, grabbed him, pulled him off the bed and struck him. Ms Harkness grabbed a mobile phone and taped part of what was actually occurring, that recording being part of the evidence in this case.
You started punching into Mr Gregg’s face with your fist, whilst Ms Harkness was screaming at you, “Why are you doing this?” She tried to intervene between you, and she was thrown aside. You commenced to kick the deceased man around his ribs and abdominal area, whilst you were wearing rigid Doc Marten boots, and you did that on numerous occasions. Prior to kicking him in the ribs, you had picked up the bed Ms Harkness was on, and thrown it through the bedroom window, showering glass onto the front entrance of the unit, as well as on the inside. You also threw a mirror at Ms Harkness, which shattered and left shards of glass on the floor. Ms Harkness was unable to help Mr Gregg, because you had made her too scared to emerge from underneath the bed. Ultimately, your friend Mr Moore, came to the door of the bedroom and he called out to you to leave, which is when you did leave.
At 6.33 pm emergency services were called, and when neighbours went into the unit to help, they found that Mr Gregg was lying on the floor, obviously injured. The police and ambulance attended a short time later. Mr Gregg lost consciousness within that time and died at the scene a short time after their arrival.
An autopsy was performed on Mr Gregg on 6 April. There were multiple areas of bruising and abrasions over Mr Gregg’s head, neck, chest and abdomen. On all of his limbs there were areas of bruising and abrasions. There were 64 identifiable areas of external injury recorded by the pathologist Dr Baber. Mr Gregg died from blunt force trauma to the abdomen, and in his abdominal cavity there were two litres of blood. There was haemorrhaging in that area, a lacerated vein and a laceration to the small bowel. His liver had an 11 centimetre laceration on its right lobe and x-rays revealed rib fractures on both the right and left rib cages.
You were responsible for all of those injuries, the extensive abrasions and bruising to his face, head, arms, torso, abdomen, legs and the internal laceration of his organs. It was clearly a violent, sustained and brutal attack upon a man who had done nothing to you. Mr Gregg was a man on methadone and could be described as relatively “spaced out” at the time of your attack. I do not accept that, he made any overt aggressive move or statement at that time, the anger and the violence was, I am satisfied, instigated by you alone. That is also consistent with your history which I will come to shortly. It is aggression at its worst, anger unrestrained and what appears to be a real lack of self-control on your part that has caused the loss of Mr Gregg’s life.
You became aware of the death of Mr Gregg on the morning of 6 April and went initially to the Peninsula Legal Centre and from there to the Frankston Police Station, where you were subsequently interviewed by the police in relation to these matters.
In respect of your record of interview, the Crown opened several aspects of what you said to the police in that interview. I have read that interview and the crown’s references appear to be a fair and accurate summary of your comments. The Crown stated:
He gave an account to police how he had done some shopping and he had bought home bags of groceries. Mr Gregg and Fiona were in the bedroom having showed them the receipt for the shopping. His friend Steve came around later in the afternoon and they sat in the lounge having a drink and a chat. He told police he later went to Fiona’s room where Jeff was laying on the bed beside her and he asked for a stubby of Wild Turkey. He told police that she refused and was being a “smart arse” about it and that’s when he decided he would leave the premises. He packed up to leave with Steve and he told the police he forgot his razor and something else in the bathroom and went back inside. He then alleges that Jeff started saying something and yelling out to him when he went into the bedroom. He then alleged that Mr Gregg came up out of the bed and came at him and he hit him a couple of times. He said to the police:
“Yes I hit him a couple of times and then he’s lying on the floor and then Fiona’s on the double bed and she’s mouthing off, so I grabbed the fucking bed and just threw it with her on it and she fell off and the double bed went threw the bedroom window. Jeff’s lying on the floor and he had blood all over his face and there was the mirror near the door and I grabbed the mirror and I just threw it to the floor and the window smashed. Steve came in and said ‘Macca what’s going on it’s time to go’ so then we left”.
The prosecutor continued:
Later on in the interview he continued to tell police that he was very angry in effect over being refused a bottle of Wild Turkey. During that exchange with Fiona when he accused her of this issue he told the police
“Jeff didn’t say anything he was just lying on the bed because he was on his methadone and was spaced out”
When he returned and there was yelling coming from the bedroom and he went inside to see what the yelling was about, he said that the deceased man got up
“and he’s friggin thrown a punch so I gave him a couple, but if I wanted to hurt him he’s only a little bloke it’s not hard to do mate and he’s drugged out on whatever he’s on it’s not hard to do. I didn’t want to hurt him. I’m not going to let the little shit hit me so I gave him a couple of hits around the head”.
As for what was arguably being said to him he said he really couldn’t make much sense of it because in relation to the deceased he said
“He’s that drugged out it hadn’t made much sense”.
The prosecutor also said, that you had denied having attacked Mr Gregg in the way that Ms Harkness had alleged and described. You admitted to the police you had gone a bit overboard, but you did not at any stage admit to doing anything to the deceased, other than to say:
“I hit him with probably a closed fist. Honest, believe it or not as God is me witness probably about two or three times in the face and most of it I slapped him probably three or four times and that was it, slapped him like a bitch”.
The injuries, sustained by the deceased man, are strongly indicative of more severe violence having occurred to him than you were prepared to admit to the police. I am satisfied that you kicked him with a significant degree of force and violence on a number of occasions in the chest and abdomen area, which ultimately resulted in his death. There was no reason for you to act in the manner that you did, apart from anger and an irrational loss of temper, which is consistent with the pattern of behaviour you have demonstrated so far throughout your life.
This was an abhorrent crime, pointless and motiveless. The deceased man had done you no harm and posed no risk or threat to you, yet you, over the refusal of his girlfriend to give you a $4 can of drink, beat and kicked this man to death. Society is heartily sick of the pointless violence that is being perpetrated on fellow human beings over inconsequential matters and rightly so. Behaviour of this type is unacceptable and intolerable to our community and our laws, and will rightly attract significant punishment. There appears to be some kind of perception that consuming large amounts of alcohol and cannabis, or other drugs, is permissible and a reasonable explanation, or excuse, for violent behaviour. It is not. It is no excuse. It is totally unacceptable and violent criminal behaviour that is the result of such consumption will be punished and that consumption will in no way mitigate the severity of the punishment. That needs to be very clearly understood by the young men who are often the perpetrators of such violence.
In your case, you have admitted 15 prior convictions from five court appearances between March 2002 and February 2008, all of them relate to acts of violence committed by you on other people.
In March 2002, you were dealt with at the Magistrates’ Court at Dandenong for charges of causing injury intentionally and damaging property. You were initially released on a community based order, which you breached. You were then, in terms of that breach, released on a suspended sentence of imprisonment, which you also breached and you ultimately served a period of 2 months’ imprisonment for that offence.
In February 2003, you were again at the Dandenong Magistrates’ Court for offences of causing injury recklessly, intentionally damaging property, criminal damage, theft and resisting arrest, fail to answer bail, the most significant of which was the charge of reckless causing injury. For these offences you were sentenced to be imprisoned for 6 months.
In April 2003, again at the Magistrates’ Court at Dandenong, you were convicted of two charges of causing injury intentionally and sentenced to a term of imprisonment of 3 months in respect of all charges. That sentence was served concurrently with the sentence imposed in February 2003.
Again you appeared at the Dandenong Magistrates’ Court on 7 July 2005 on one count of recklessly cause serious injury, for which you received 4 months’ imprisonment, cumulative upon any uncompleted term owed to the State Parole Board.
Finally, at the County Court in Melbourne on 25 February 2008 you were convicted of recklessly causing serious injury and sentenced to a term of 2 years and 6 months’ imprisonment, with a non-parole period of 18 months. What that means is, that by the time you committed this offending you had been either to the Magistrates’ Court or the County Court on five separate occasions, in respect of causing injury to five different people, at least on five different occasions. On each occasion, your punishment escalated as your crime equally escalated.
Here, you were charged initially with murder, the worst and most serious example of the infliction of violence upon a person that our society knows. The Crown have accepted a plea of guilty to manslaughter, which is the second most serious offence in respect of violence against a person, involving as it does, the loss of life of a fellow human being, and carrying, as I said earlier, a maximum penalty of 20 years imprisonment.
On the last occasion you were sentenced by his Honour Judge Chettle of the County Court and he provided reasons for sentence which were made available to this Court. The brief description of your offending given by his Honour is informative:
Briefly stated, in June 2005 you had been drinking with a number of other people at units at Hemmings Street, Dandenong. One of the people drinking with you was Mr Mujtaba Sardar, your victim, who left your unit and returned to his own nearby. You formed the view that Mr Sardar had stolen your mobile phone and you attended at his unit and then punched him on several occasions. You found yourself inside his unit and continued to punch him causing serious injuries. The full extent of his injuries are demonstrated by the photograph tendered in evidence and by the medical reports that are attached to the brief. He had three teeth knocked out, he had a fracture to his nose, he had a number of stitches inserted above his left eye and it is clear from the photograph that he sustained a solid beating at your hands. You were interviewed by the police in relation to the incident and you claimed to be acting in self-defence and falsely claimed that you were struck first by Mr Sardar and that you were, effectively, the victim, not him. You said in that interview towards the conclusion of it at question 233: “I wanted to leave him thinking he fucking can’t get away with that sort of crap, mate. I don’t care, I don’t get intimidated by no bastards. I’ve got in more fights in my life than you’ve had hot dinners and I never hit the deck and I never will mate. I don’t go down without fighting and no bastards going to hit me like that and get away with it, especially when I’m in the right, I don’t care mate”. A little bit later you were asked, why did you keep hitting him and you said because I was pissed off.
In this case there were three victim impact statements tendered, being statements from Sharon Gregg, the sister of the deceased man Jeffrey Gregg; Leonie Gregg, the mother of the deceased; and Fiona Harkness, his then partner. Although there is no victim impact statement from the brother and father of the deceased man, it is clear that they have also suffered significant loss.
There is no doubt that the loss of a child, a brother, a nephew, or a partner, is hard to bear at any time. For that loss to be as a result of the infliction of violence by a virtual stranger to their loved one, must make the loss far more difficult to deal with, and that is the case for each of these people. Nothing the Court says or does can in any way relieve the suffering that they have and will have for some time. They will never forget their son, brother or partner and whilst hopefully the pain will ease over time, it will never leave them. For the sake of themselves and their lost loved one, I hope that all of them can get to the point where, when they think of Jeff, they think of him and smile and remember the pleasure and joy that he brought into their lives, rather than, the tragic circumstances under which he lost his. That will honour his memory far more than anything else can.
Equally, it must be understood by all of those involved in this matter that the sentence that is going to be imposed on the prisoner, Gregory McDonald, for the offence of manslaughter, is not an indication of the worth of their loved one. That is not how the system of justice works. I am obliged, as a matter of law, to take into account various matters, which I will mention and deal with shortly. This is about providing appropriate punishment for the offence to which the prisoner has pleaded guilty, not about evaluating the worth of Jeff Gregg. His worth is calculated by those who loved him and like all people, his worth is really immeasurable and not capable of being reflected by a sentence of imprisonment on the man who took his life. I will take into account the victim impact statements, as one of the matters to be considered, in determining the appropriate sentence.
One of the other matters that I have to take into account are your personal circumstances. You are the youngest of five children, with three older brothers and an older sister. When you were approximately 10 years of age, your father and your mother separated. Your father was a violent alcoholic, who assaulted all of the members of the family. You have reported different things to different psychologists about your younger years, including being deaf until you were 4, having resided at 47 different addresses and attending 47 different schools as your mother moved house constantly to avoid your abusive father. But in others you say that you attended Daylesford Primary School and Daylesford Secondary College where you completed Year 10. I am unable to ascertain exactly what is the correct background material, but I certainly act upon the basis that you were treated extremely badly by your father and you had many difficulties in your childhood, as a result of your father’s behaviour. What is also clear is that you had significant anger problems from an early age.
According to the information provided to Dr Nick Owens, Senior Psychiatry Registrar at the Victorian Institute of Forensic Mental Health in a report in October 2002, you said you had been assessed by a psychiatrist at Monash Hospital, at the age of 16 on two occasions, that having been organised by your mother, who could no longer deal with your anger problems. However, Dr Sullivan reported in 2012 :
Once more he denied any significant academic or social problems but indicated that he was suspended a few times for anti-authoritarian attitudes.
You have reported in relation to your time growing up, that before your father left, that sometimes you were beaten so badly you were unable to walk to school. You left school, either at the end of year 9 or 10, it is hard to ascertain precisely. You spent some six weeks in a boys’ home, at the age of 16, owing to the uncontrollable behaviour that you were exhibiting at home. In relation to your suspensions and expulsions from school, you once threw a desk at a teacher, causing you to be expelled, an unsurprising result of such behaviour. After leaving school you worked as a door to door salesman for approximately two years and then at Dandenong Commercial Refrigeration, for a year and a half. You then spent some two years on the night shift, as a machine operator, but you were sacked after you assaulted another workmate.
You were involved in an accident in 2000, in which you fell off a train and sustained injuries, including a left shoulder injury, which required a reconstruction. Since that accident in 2000, you have had intermittent work and have, as a result, struggled to keep accommodation. You have self-harmed and lacerated your arms. You told various psychologists and psychiatrists that you have fractured various fingers, arms and other parts of your body over a period of time. It would appear that, in terms of your family’s medical history, that your father suffered from epilepsy, you had a sister who was a heroin addict, you also have a brother with epilepsy and another brother who has alcohol abuse problems.
You informed Dr Sullivan in a report dated 20 July 2012 that you were:
A born again Christian for some 8 years and had attended church most Sundays in an evangelical church in Springvale.
There is no time frame attached to that, and it must be tolerably clear that you are no longer a born again Christian, when one examines your recent history.
You described yourself as drinking from the age of 15, and drinking very heavily between the ages of 18 to 25, drinking up to 40 beers a day. You also described yourself as a happy drunk, until provoked. You say that you now drink far less.
I have received a number of reports from psychiatrists and psychologists being:
(1)a report from Michael Piperoglou, Consultant Psychiatrist, dated 29 May 2002, for the purposes of a medico-legal report relating to your accident on the train;
(2)a report from Forensicare dated 4 October 2002 prepared by Dr Nick Owens, Senior Psychiatry Registrar, Victorian Institute of Forensic Mental Health;
(3)a psychological report dated 1 February 2008 from Elizabeth Warren, Forensic Psychologist;
(4)a report from Dr Danny Sullivan, Consultant Psychiatrist, dated 20 July 2012; and finally
(5)a report from Elizabeth Warren, Forensic Psychologist, this time dated 10 September 2012.
In relation to those reports, although there is, as I have indicated, some conflicting material, in terms of background information that has been provided by you to the different psychiatrists and psychologists, there is sufficient consistency to enable some reliance to be placed upon the diagnoses.
In Dr Owens’ report in October 2002, at page 2 of that report under the heading “Forensic History” he stated:
He freely admitted to being a violent person, and frequently mentioned that he was well able to kill someone, but that he would have to hold himself back, or be prevented by someone else from being more violent. He objectified his anger and violent nature to the extent that he almost regarded it as something else that took control of him and which he was powerless to change. While admitting that he had terrible problems with anger, he indicated that it was always other people who caused him to get angry.
It would appear that you were prescient as to the levels of anger and violence that you could display, and the potential consequences of that violence. All of the reports seem to agree that you have a borderline personality disorder, anti-social functioning, poly substance dependence, problematic gambling and other matters. You have a limited intellect. They all agree that you are subject to intense and inappropriate expressions of anger. Your problem is that you still believe that the problem belongs to others, as it is others who cause you to become angry.
As I indicated earlier, there are many factors that I have to take into account in determining the appropriate sentence, including the issue of both personal and general deterrence, which involves consideration of your prospects of rehabilitation and the issue of protection of the community. You have expressed remorse, to a number of the treating psychiatrists or psychologists, in relation to this matter.
However, in all of your explanations to the medical professionals you have squarely laid the blame for each of the violent incidents in the past on the person who was the victim of the violence, relying upon the fact that they provoked you or they caused you to lose your temper. You have, so far, been unable to change or to alter this significant anger problem, and appear to blame others for that failure, indicating that people are not interested in assisting you, which is far from the truth.
In the report of Dr Sullivan, you are referred to as stating that you had not intended to kill the victim, but also denying significant problems with anger management and in Dr Sullivan’s opinion, at page 5 of the report, he stated:
At the time of the alleged offence Mr McDonald was likely affected by intoxication with or withdrawal from cannabis and alcohol, which would have disinhibited him and reduced his ability to think clearly. There is no indication of other mental disorder involved in the alleged offending. He shows longstanding problems with impulsivity and anger which may be associated with his personality structure but do not appear to reflect mental illness.
In her report, Elizabeth Warren states, at page 6:
Mr McDonald remains with problems of thinking it is others who cause him to get angry. That lack of self-efficacy and lack of belief in self-efficacy remains as a problem and is a reality based assessment of his inability to contain his turbulence which is grounded in multiple mental health disorders. He does now think he is capable of change –
“I’ve learned my lesson. And I hope God forgives me and I find the right thing, possibly computers… a laptop.”
He was referring to establishment of a vocational opportunity as a means of developing a stable lifestyle and persona which would assist if it could be achieved. He has multiple significant changes to make before he can reasonably be considered a significantly reduced risk of future offences of violence and others. Crucially he would need to refrain from any substance abuse or misuse. He would need to develop the belief and motivation to do so which is not yet in existence. Anger management retraining would need to be effective. To date it is not, although he has devoted significant hours to the endeavour by formal programs, and also by his own wishes. He impresses as an individual who would function best in supported and supervised accommodation where administration of appropriate medications could be monitored, in conjunction with vocational and social skills training. His remorse and regret impresses as genuine, within the limitations of his constricted and at times incongruent emotional functioning. His wherewithal to effect the needed changes is similarly constricted at this point in time.
In reality, it would appear that there is a very limited degree of confidence in your ability to control the anger and rage within you that causes you, and has caused you over the past, to consistently inflict violence upon others within our community. You, accordingly, remain a significant risk to members of that community whilst you persist in drinking and using illegal substances.
I find your prospect of rehabilitation, even though you may genuinely desire to change, to be very poor. Accordingly, there is a need for both general and specific deterrence to feature significantly within this sentence. Equally, your prior convictions for violence over a sustained period have relevance to the issue of specific deterrence.
You are entitled to and will receive a discount for your plea of guilty. I do accept that you are remorseful, although your limited insight into your behaviour reduces the value of that remorse, that will still be reflected in the appropriate reduction in sentence pursuant to s 6AAA that will be imposed upon you. I am obliged to try and balance many factors in coming to the appropriate sentence. I must ensure that it is a just and appropriate sentence, that it reflects the criminality involved, is protective of society, but also, is not crushing upon you personally. I have taken into account your personal circumstances, your plea of guilty and your psychiatric history over the years and although there is no relevance in terms of Verdins, it is still a factor that is to be considered and evaluated and included in the general synthesis that sentencing entails.
Trying to balance all of those matters to which I have referred, I declare that you are convicted and sentenced to be imprisoned for a period of 10 years. I declare that you are to serve a minimum period of 7 years and 6 months before becoming eligible for parole. Pursuant to s 6AAA I declare that the sentence I would have imposed but for your plea of guilty would have been a sentence of 12 years and with a minimum term of 9 years and 6 months.
Declare that there have been 553 (five hundred and fifty three) days pre sentence detention served in relation to this matter and such is to be noted in the records of the court.
Application for disposal order granted.
Application for forfeiture order granted.
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CERTIFICATE
I certify that this and the 12 preceding pages are a true copy of the reasons for sentence of King J of the Supreme Court of Victoria delivered on 10 October 2012.
DATED this 10th day of October 2012.
Associate
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