R v McDonald (Sentence) - [2011] VSC 235

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1667 of 2009

THE QUEEN

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) 31 May 2011 (plea)
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…

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 McDonald (Sentence)

Details

AGLC: R v McDonald (Sentence) [2011] VSC 235
Case: [2011] VSC 235
Decision Date: 7 June 2011

CaseChat Overview and Summary

The case before the court involved a conviction for the pre-planned murder of the offender’s estranged wife. The accused had arranged for the victim to be abducted with murderous intent. Despite the absence of a body, the evidence was sufficient to conclude that the victim was killed. The offender, now aged 70, had been found guilty of murder almost 25 years prior. The primary legal issue before the court was to determine an appropriate sentence, considering the offender's age, prospects for rehabilitation, and the gravity of the crime. The court had to balance these factors against the heinous nature of the crime, the age of the offender, and the potential for rehabilitation.

The court examined the offender’s age and prospects for rehabilitation, noting the offender's advanced age and the length of time since the offence was committed. The offender's age was a significant factor in determining the sentence, given the reduced capacity for rehabilitation and the lesser risk of reoffending. The court also considered the heinous nature of the crime, which involved premeditation and the abduction of the victim with murderous intent. Despite the absence of a body, the evidence of the offender’s actions and intent was overwhelming. The court recognised the need to impose a sentence that reflected the seriousness of the crime while also considering the offender's age and potential for rehabilitation.

After considering all the factors, the court determined that the total sentence should be 19 years’ imprisonment, with a non-parole period of 13 years. This sentence reflected the severity of the crime, the offender’s age, and the prospects for rehabilitation. The court concluded that this sentence was appropriate given the circumstances of the case. The court also noted that the offender had shown remorse and was unlikely to reoffend. The final orders of the court were that the offender was to serve a total of 19 years’ imprisonment with a non-parole period of 13 years.

Orders