R v McDonald (Sentence)
[2011] VSC 235
•7 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1667 of 2009
| THE QUEEN |
| v |
| JOHN VINCENT McDONALD |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14-17, 21-24, 28 February, 1, 7, 9-10, 15-18, 21-25, 28-31 March, 1, 4-8, 11-15, 18-19 April 2011 (trial) | |
DATE OF SENTENCE: | 7 June 2011 | |
CASE MAY BE CITED AS: | R v McDonald (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 235 | |
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CRIMINAL LAW – sentence – murder – murder of estranged wife – murder pre-planned – accused arranged for the victim to be abducted with murderous intent – cause of death unknown, as no body found – murder committed almost 25 years ago – good prospects of rehabilitation – offender now aged 70 – reduction in sentence on account of offender’s age – total sentence of 19 years’ imprisonment – non-parole period of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC Mr J Dickie | Solicitor for Public Prosecutions |
| For the Accused | Mr A Lewis Ms P Murphy (trial) Mr T Schocker (plea) | Robert Stary Lawyers |
HER HONOUR:
John Vincent McDonald, you have been found guilty by a jury of the murder of your estranged wife, Marlene McDonald, on or about 14 December 1986.
You and Marlene were married in April 1970, and had five children together, who were born between 1971 and 1983. You separated in November 1985.
Marlene McDonald came from a traditional Catholic upbringing. She married you when she was only 20. She spent most of her married life at home, raising the children. Marlene started working as a waitress at Truck City in early to mid 1985, to help support the family, because your orange juice delivery business was in serious financial trouble. The strain on the marriage caused by financial problems was exacerbated by the fact that you were both working longer hours and developing separate interests. And, by all accounts, Marlene became more outgoing and started blossoming as a person, once she got out of the house and started working at Truck City.
You became suspicious that she may be having an affair with one or more truck drivers, which suspicions developed over time into a jealous obsession on your part. You would follow her to or from work, or check up to see whether she was working when she said she was. You would make phone calls to her at work, which upset her. You accused her – to her face and to others – of being a prostitute and a drug dealer, both of which were completely untrue. You would leave notes on the windscreen of her car, or arrange for your younger sons to write offensive notes to her, after they had been on contact visits with you. You took away from her the van which she used to drive the children around in, even though you did not need it yourself. Your spiteful obsession with Marlene continued long after she had left you, and you seem to have encouraged your own children, and Marlene’s violent and troubled brother, Leon McEntee, to report to you on what she was doing and who she was seeing.
Notwithstanding your repeated assertions (and your children’s belief) that you are not a violent person, there was considerable evidence, given by many different witnesses, that you were physically violent towards Marlene, both during your marriage and after the separation, and that she was frightened of you.
After the separation, you and Marlene agreed that the three youngest children would live with her, and the two oldest with you. Marlene later sought to formalise those custody arrangements through the Family Court. But in September 1986, you began an application in that court, seeking sole custody of all five children.
You knew a young man, Stuart Binion, through the Whittlesea cricket club. You offered to pay money if Mr Binion and two of his friends, Andrew Ardley and Gregory Bone, kidnapped Marlene for you. Then aged around 17 or 18, perhaps needing money to fund their drug habits, they agreed to do so.
As she arrived at her home in Reservoir, late on the night of Saturday 13 December, Marlene was abducted by them and put in the back of your van, tied up and covered with a blanket. In order to make it look like Marlene had run off with a truck driver, you arranged for Mr Bone to drive her car to Truck City and leave it in an area where trucks would park. Mr Bone then joined the others in the van. Marlene was driven up to Whittlesea, where Bone, Binion and Ardley got out. You were last seen driving off in the van, with Marlene still tied up and covered in the back.
I am not sentencing you for the kidnapping of Marlene McDonald, so it is not necessary for me to determine whether you were present throughout the entire kidnapping, or for only some part of it.
Marlene McDonald has not been seen or heard from since that night. Her body has never been found. Her cause of death is unknown.
Unfortunately, the initial police investigation, in late 1986 and early 1987, was not carried out with the thoroughness it deserved, and Marlene McDonald was treated as a missing person.
It was not until the cold-case unit re-opened the investigation, around 2007, that evidence was gathered which was sufficient to enable the police to charge you. That included evidence gathered through the use of listening devices, telephone intercepts and an undercover police operative. You have an unusual habit of verbalising your thoughts out aloud when you are alone. Many of those recordings revealed information which only a person involved in the abduction and murder of Marlene McDonald could have known.
Given the way the prosecution case was run, in returning a verdict of guilty of murder, the jury must have been satisfied beyond reasonable doubt that you arranged for Marlene McDonald to be kidnapped by Bone, Binion and Ardley, in order to kill her yourself or have her killed by a person or persons unknown, and that she was so killed.
Murder is a very serious offence, involving as it does the taking of another person’s life. The maximum penalty for murder is life imprisonment.
As far as motive is concerned, it is clear that you felt considerable anger and resentment towards Marlene, for leaving you and getting on with her own life. Indeed, the covert police recordings showed that, more than 20 years later, you still harboured enormous animosity towards Marlene. Your animosity towards Marlene grew to the point that you arranged for her to be kidnapped.
You approached Mr Binion about the kidnapping some days before it actually occurred. You told the kidnappers that you intended to put Marlene in an asylum or “nut house”. I am satisfied that explanation was false and did not represent your true intention at the time. There is no evidence to suggest that Marlene McDonald was mentally unwell, or could have been committed by you to such an institution against her wishes. And unless you intended to permanently dispose of Marlene McDonald, she could obviously have returned from wherever you had taken her, and caused you to be charged with kidnapping.
Although it might seem strange that the kidnappers accepted your explanation, or allowed themselves to become involved in your criminal behaviour, all three were young, troubled drug users, who were foolish, reckless or gullible enough to do so.
I am satisfied beyond reasonable doubt that the murder was pre-meditated, and had been planned at least by the time you approached Mr Binion and engaged him to kidnap Marlene McDonald. This pre-planned, cold-blooded killing of your estranged wife, the mother of your children, is a serious example of a very serious crime.
You deprived Marlene McDonald of her most precious right, her right to life. Your actions have also had serious consequences for others, particularly those who loved her.
Victim impact statements were provided to the court by Marlene’s mother, Edith McEntee, her brother, Anthony McEntee, and her sister, Anne Cooper. Those statements tell in moving terms of the impact your actions have had upon them, and upon Marlene’s late father, Patrick McEntee, who went to his grave not knowing what had happened to his beloved, firstborn child. Marlene’s family have spent almost 25 years wondering what happened to Marlene, not knowing how she died or where her body was, consumed by grief and pain, and, at times, a sense of guilt or doubt as to whether perhaps they could have done more to help her. They feel that not only did they lose Marlene, but they also lost their relationship with her children.
Not only did you deprive your five children of their mother, but you have also poisoned their memories of her. Quite understandably, they do not believe that you have poisoned their minds; but there was much evidence before the court that you are an accomplished liar and a manipulator of others. And over the many years since her death, you told the children a series of lies about Marlene, including perhaps the most terrible lie of all – that their mother had simply run away and abandoned them, for her own selfish reasons, when you knew full well that you had murdered her.
You were born in November 1940 and raised by adoptive parents in Melbourne’s northern suburbs. Your only sibling, your sister, is seven years younger than you. You reported to Patrick Newton, a forensic and clinical psychologist who prepared a report on your behalf for sentencing purposes, that you enjoyed positive relationships with your family and had an unremarkable early history. You described yourself as an average student, who experienced no significant academic, behavioural, disciplinary or social problems. You completed your leaving certificate.
You worked to support your family throughout your life, primarily in various clerical and administrative roles, or doing deliveries of milk or juice. You retired from full-time employment around 1997, although continued in part-time employment for some years thereafter. Because of your age, you are not eligible to participate in paid employment within the prison system. You have tried to deal with the boredom of not being able to work, by keeping yourself busy playing table tennis and similar activities.
You have been an avid sportsman since childhood, participating in various sports, particularly cricket and table tennis. The holder of the world record for participation in the greatest number of competitive cricket matches, you continued to play cricket until you were arrested for this offence. You have also been an active member of various sporting clubs, have coached and encouraged other players, and held various voluntary club offices over many years.
You have no history of psychiatric or psychological problems. Mr Newton described your thought processes as “normal”, your intelligence as “at least average”, and your mental status as “essentially normal”. You do not suffer from any mood, anxiety-related or adjustment disorder. Although you are apparently pre-occupied with certain aspects of the recent trial, you experience considerably less anxiety than the average prisoner and there is no evidence of any depressive mood disturbance. Mr Newton noted there is some risk of deterioration in your mental state, if and when you finally come to terms with the reality of the jury verdict and of your current situation.
Your daughters, Janine and Caroline McDonald, have provided statements to the court. I have received them as victim impact statements, even though their contents probably do not satisfy s 95B of the Sentencing Act 1991, in that neither of them seems to regard themselves as a victim of the offence which the jury found that you have committed. For example, Caroline apparently regards the jury verdict, and your consequent punishment, as “wrongful”. And she says that because she was only three when her mother disappeared, she does not remember her and has therefore never missed her. Nevertheless, whatever their proper legal characterisation, I have had regard to the contents of Janine and Caroline’s statements, particularly in considering your character and prospects of rehabilitation, and the likely impact of imprisonment on you and others.
Both Caroline and Janine, as well as your son-in-law, David Pettenon, have spoken in positive terms about what a kind, loving and supportive father you are, how important your family is to you, and how close you are to your children, grandchildren and other family members. I have no doubt that you will miss each other greatly, while you are in prison.
I also have no doubt that your children will struggle to reconcile the jury’s verdict with the man they believe you to be, particularly as they were not present in court throughout the trial to hear all the evidence against you.
Your age is a very relevant consideration in sentencing you, both in setting the total sentence and in determining an appropriate non-parole period. At the time of the offending, you were 46. You are now 70. In sentencing you, I bear in mind that, given your age and statistical life expectancy, you may not survive a lengthy prison sentence. Further, being imprisoned for the first time at such an age is likely to be significantly more onerous than for a much younger person.
I have taken these matters into account in sentencing you, particularly in setting a considerably shorter non-parole period than might otherwise be thought appropriate. But, whilst your age is undoubtedly a mitigating factor, the age of an offender cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.
As far as your health is concerned, you suffer from high blood pressure, high blood sugar, glaucoma, painful rheumatism and osteoarthritis. All of your medical conditions are being satisfactorily treated in custody with medication. It was not suggested that any of your existing medical conditions were such as to make the burden of imprisonment greater for you than for a person in ordinary health. Nevertheless, bearing in mind your age, it may reasonably be assumed that your health will decline over the coming years.
You have no prior convictions. There was one occasion, around 1988, when you were sentenced to a good behaviour bond without conviction for a work-related theft. But, up until the time of the murder, you had led an ordinary, law-abiding existence. And apart from the theft, you have not offended in the decades since then.
Your good work record, your level of intelligence and mental health, the absence of drug or alcohol addictions, your relationships with family and in the community, and the fact that you have no other criminal history, all point to very good prospects of rehabilitation. Those matters, coupled with your age and the very personalised nature of the offence itself, suggest that there is little need for specific deterrence in your case.
However, this was a terrible crime, for which you have demonstrated no remorse. On the contrary, you have sought to blacken the name of the victim, your former wife, and to blame several other people for the murder, none of whom are still alive and able to defend themselves. And your failure to disclose the whereabouts of Marlene McDonald’s body continues to distress members of her family.
There is still a need for punishment and general deterrence in a case such as this. Unfortunately, the story of somebody (usually, but not always, a male) who refuses to accept that a relationship is over, and who harasses, pursues or assaults a former partner, ultimately ending in their death, is all too common.
Balancing as best I can the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, I sentence you to 19 years’ imprisonment. I order that the period before which you will become eligible for parole is 13 years. But for your age, I would have sentenced you to a considerably longer total sentence and non-parole period, notwithstanding the various mitigating factors I have mentioned.
I declare that the period to be reckoned as already served under the sentence is 679 days, inclusive of today’s date, and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
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