R v McDougall
[2001] VSC 205
•29 May 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1463 of 2000
| THE QUEEN |
| v. |
| PHILLIP GENE McDOUGALL |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 29 MAY 2001 | |
CASE MAY BE CITED AS: | R. v. McDOUGALL | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 205 | |
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CATCHWORDS: Murder – Significant criminal history – Ingestion of alcohol and marijuana – Admissions – Circumstances of aggravation – Abusive childhood.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. W. Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr. D. Wraith | Victoria Legal Aid |
HIS HONOUR:
Phillip Gene McDougall, the jury empanelled upon your trial has found you guilty of the murder at Maiden Gully in the State of Victoria on 12 December 1999, of Helen Marie Pearson.
It is, accordingly, my responsibility to impose sentence upon you for the commission of that offence.
Relevant, on more than one basis to the determination of an appropriate sentence in the circumstances, is the fact that you have admitted 53 convictions arising from 15 court appearances between 14 August 1973 and 25 March 1997. The offences vary considerably in seriousness, but they include (inter alia) six counts of armed robbery; the harbouring of a gaol escaper; the use, possession and cultivation of a drug of dependence and a number of crimes of dishonesty. You have, in consequence, served a number of substantial terms of imprisonment in the course of many years of criminal involvement.
The background to and circumstances surrounding the commission of your offence have been canvassed at length during the course of your trial and need only be described relatively briefly at this stage.
You were, in December 1999, living with and in the home occupied by your then de facto wife Sandra Gray at Kronk Street, Maiden Gully. Also residing in the premises were her son, a woman named Shelley Haigh and the deceased. It appears that, for a number of reasons, at around that time the relationship between Mrs Gray and yourself was under stress. Eventually you were asked to leave after the approaching New Year's Eve. I accept that your relationship with your de facto wife was very important to you and that you were both distressed and angry. There are indications that you were making genuine endeavours to develop a more stable lifestyle than the one which you had followed for many years, and I note that you were engaged in a legitimate income earning activity. I also accept that you attributed some part, at least, of the responsibility for your imminent separation to the deceased and to the general environment in the house. It appears that Sandra Gray was of the view that her hospitality and preparedness to assist others were not only being exploited but that this was being done in total disregard of her very limited financial resources as a sole parent.
On Saturday 11 December, and following a further argument with Mrs Gray, you went out during the evening without inviting her to accompany you. She remained at home distressed and disappointed that you had done so. It appears that she had little money and regarded your conduct as being somewhat irresponsible. It is evident that you spent the evening drinking and, in the later stages, unsuccessfully looking for female companionship. You claim that, generally speaking, you were not given to heavy drinking and that your over indulgence on that night reflected your emotional state at the time. I can see that this may well have been the case. In any event, you returned home in the early hours of the morning significantly affected by liquor and probably frustrated and angry.
On entering the house, you encountered Sandra Gray who was still upset and a further argument developed. It is not clear how long it lasted, but it does appear that the deceased went to her room and did not participate in it. After the situation had superficially settled down and Mrs Gray and Shelley Haigh, who had also become involved in the dispute went to bed, Miss Pearson returned to the loungeroom and had coffee. You assert, and I accept, that she may also have smoked some marijuana with you.
Precisely what took place between the two of you that precipitated your actions against her is unclear. A heated discussion obviously occurred in which a number of matters were canvassed.
The evidence indicates that they probably included the claimed use by the deceased of the telephone in the house to make long distance calls without payment to Mrs Gray and her various comings and goings to which you objected.
However, whether or not these matters were covered, I am satisfied that in the course of your conversation she brought up the subject of the sale of a quantity of marijuana that had been given to her by her boyfriend for disposal. I accept that she had earlier requested your assistance in this respect, and I accept that you had indicated that you did not want to involve yourself again in activity, of a similar kind to that from which you had extricated yourself some time earlier. In this context I note that you have some prior convictions for drug offences, and your assertion, that you did not want to be perceived as having resumed the lifestyle that you had abandoned, possesses credibility. It is highly likely that you regarded her persistence in relation to this matter with considerable annoyance.
A witness named Sydney Godfrey, who was acquainted with you, gave evidence that at about 1 o'clock on the afternoon of 12 December, that is, only a matter of hours after her death, he overheard part of a conversation conducted between another man and yourself in the carpark of an hotel in Kangaroo Flat. According to this witness, you stated, inter alia, that you had been having an affair with Miss Pearson and that she had threatened to tell your wife. You have always denied that you had any such conversation and that you had ever been engaged in a sexual relationship with the deceased. If no conversation took place it is difficult to see how Mr Godfrey could have possessed the knowledge, which it seems clear on the evidence that he did, that you had killed Miss Pearson and that you had transported her body into the bush where you buried her, at a stage at which it was not appreciated that she was actually missing.
Whether or not you ever had a sexual relationship with Miss Pearson and whether or not she made some threat of disclosure to Mrs Gray, it is not possible to determine. I am satisfied, however, that the evidence of Mr Godfrey as to what was said can be accepted.
Subsequently you indicated to another witness, Scott Gray, that you had reacted when you saw Miss Pearson using the telephone and thought that she may have been making a long distance call. The use of the telephone as I have earlier suggested, had previously been a source of difficulty in the household, but it seems clear from other evidence that this explanation could not have been true.
Ultimately, all that can be regarded as established is that Miss Pearson said something that precipitated in you an upsurge of emotion. In consequence, as you moved across the loungeroom, in which she was sitting, towards the kitchen where you intended to prepare a cup of coffee for yourself, you picked up a heavy length of metal. The bar, I should add, had apparently been resting against a wall in the room for some time. I understand that it had been placed there following the development of some problem with intruders. I suspect, but obviously do not find, that this may have been related to your earlier dealings in marijuana. Your decision to use it was, I consider, quite spontaneous and made almost certainly only a matter of moments before you seized it.
Holding the bar in both hands, you moved into a position behind the deceased, who was seated on a stool and facing the table on which her coffee cup was situated. You then swung it and struck her savagely on the side of the head. I reject your explanation that the impact was accidental and that you had intended to strike the stool but that Miss Pearson unwittingly moved into the path of your blow. Setting to one side the inherent implausibility of your version in the particular circumstances, your conduct after impact was hardly consistent with an unintended tragic occurrence. Rather than making an endeavour to rouse any of the occupants or to secure assistance or even to make any serious attempt to assure yourself that she was dead, you began to wrap her body so that it could be moved from the house.
It appears from the evidence, however, that she was not dead and that she began to moan. You did not, apparently, experience any sense of relief and then call for help, but delivered further blows to her head. Even if I am incorrect in the finding that I have made and the initial impact was accidental, you were clearly determined to kill her at that stage rather than face the consequences of your actions.
You then placed Miss Pearson, who was almost certainly still alive, in your truck and attempted to remove any trace of what had happened. You drove to a fairly remote location in a forest area and stopped near a dam. You cleaned your vehicle and then attached what you believed was the body of your victim by her ankles to the rear of your vehicle. You drove to the area that you had selected as a grave site, dragging her along behind your truck.
Once at that location, you dug a shallow grave. Then tired by your efforts you paused to have a cigarette and a drink of water, when Miss Pearson again made a moaning sound. It appears that in spite of all that you had done, she was still alive. Regarding yourself as committed to your course, you struck her again on the head before placing her body into the grave and setting a fire on and around it. You returned to your vehicle and drove home.
You endeavoured to divert attention from her absence by spreading a false story that she had left with some unidentified man. It was your intention that she would simply disappear.
I regard your extraordinarily callous treatment of Miss Pearson, whether alive or dead, from the moment that she was struck by the iron bar as a circumstance of significant aggravation. Your endeavour to conceal permanently her body, leaving her family and friends in a continuing state of anxiety should, I think, be similarly viewed.
It hardly needs to be emphasised that the crime of murder that you have committed is, for practical purposes, the most serious known to our society, which accepts as a fundamental principle the sanctity of the life of each of those who dwell within it. Not only must the courts, through the sentences which they impose upon those who intentionally and unlawfully take the life of another, give practical efficacy to that principle by effecting just retribution upon the perpetrators, but they must also endeavour to deter others who may contemplate the commission of this terrible offence. Each of those considerations has relevance to the determination of an appropriate sentence in your case.
I accept, as I have earlier indicated, that at the time of your initial assault upon your victim you acted spontaneously. I also accept that your reasoning processes and emotional state were affected by the disputes that had developed between Mrs Gray and yourself, as well as the consumption of a substantial amount of alcohol and the smoking of marijuana.
You may not have intended to kill Miss Pearson when you struck her with the iron bar, but it would be reasonable to infer, I consider, that you intended to inflict really serious physical injury upon her. The nature of the weapon employed and the placement and force of the blow which knocked her senseless to the floor are all relevant to this assessment.
Whatever may have been your objective at that stage, it is clear that you possessed the specific intention to kill Miss Pearson when you struck her about the head on the two subsequent occasions. It has been suggested that you panicked and perceived that you had no option but to continue. There is, I consider, some force in this contention, but it ultimately rests upon your determination to avoid responsibility for what you had done, on the one hand, and an absence of any concern about the possibility that your victim's life might be saved, on the other. Allowing for all of the circumstances, in my view your level of personal culpability must still be regarded as high.
I have, of course, read the victim impact statements which were handed to me during the course of the hearing. Once again I have been reminded that there are often many other victims in addition to the person whose life has been taken, and once again I have glimpsed something of the pain which they have experienced and will be likely to continue to suffer for a very long time.
Turning to your personal background which must also be taken into account for a number of purposes in the determination of an appropriate sentence, I observe that you are now aged 45 years. As is so often the case for persons who come before this Court, your early history is one of family instability, abuse and alienation. Following the separation of your parents at the age of nine years, you resided for a period in a house occupied by your grandparents and your mother. Also living in the house were three uncles who, from time to time, bashed, taunted, threatened and kicked you. It is hardly surprising that you felt that you were not being sufficiently supported by your mother and that you became deeply upset when you learned that the person who you had always believed was your father was not. It is reasonable to infer that you experienced a strong sense of isolation and betrayal. You commenced to run away from home and encountered other unfortunate young people with whom you became associated. At times you would return or be returned to your home, where you would be made to sleep with the family dogs in the kennel in the back yard or were otherwise abused.
You were made a ward of the State at the age of 13 years and were placed in a variety of institutions. So started a long and sorry history of criminal activity, drug and alcohol abuse, and incarceration in one form or another. I understand from the report of Mr Joblin, a very experienced forensic psychologist, that it is your view that you were destined to live in institutions and to be rejected by and isolated from society. I regard that attitude as a sad product of your past and one which augurs badly for your future.
Despite the difficulties which you are likely to meet, I am not persuaded that your prospects must be viewed as totally bleak. You are clearly capable of hard work and have tried from time to time to get your life into some kind of order. Accordingly, I consider that the possibility of your reintegration into the law abiding community must be taken into account as a significant factor in the determination of a proper sentence.
I am confident of the accuracy of Mr Joblin's analysis which is expressed in the following passage of his report:
"Furthermore, given his history and given the fact that he has never lived in an appropriately functioning family environment, his capacity to deal with conflicts such as that he reported with Mrs Gray concerning others in the house, was extremely limited. He would respond to such difficulties in terms of the values and procedures he had learned in institutions. Thus, his drinking, the arguments with Mrs Gray and others, the offence and the extraordinary behaviour following the offence, is reflective of his history of institutionalisation."
That appreciation of the circumstances cannot alter, however, the irrevocable fact that you have murdered a young woman whose death resulted from your expression of uncontrolled frustration and anger.
I am familiar with and have had regard to the range of sentences imposed upon perpetrators for the crime of murder over recent years, bearing in mind that they can provide only general assistance as each case and each offender must be separately considered.
Ultimately, I have arrived at the conclusion that the sentence to be imposed upon you is one of imprisonment for a period of 19 years. I fix a non-parole period of 15 years.
I declare that the period of 528 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the court.
I have already signed the orders.
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