R v McKinley, Lawrence and McKinley
[2008] VSC 581
•18 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1406 of 2008
| THE QUEEN |
| v |
| DONNA FAYE McKINLEY, BRIAN EDWARD LAWRENCE and DONALD McKINLEY |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2008, 18 December 2008 | |
DATE OF SENTENCE: | 18 December 2008 | |
CASE MAY BE CITED AS: | R v McKINLEY, LAWRENCE & McKINLEY | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 581 | |
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CRIME – Sentencing – Accessories to murder after the fact – Circumstances of offending – Pleas of guilty – Undertakings to give evidence in respect of principal offence – Sentences suspended in whole in respect of one offender and in part with respect to two others – Section 355(1) of the Crimes Act 1958; section 27 of the Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman SC | Office of Public Prosecutions |
| For the Accused Donna McKinley | Mr P.A. Chadwick | Brian Birrell |
| For the Accused Brian Lawrence | Mr S. Gardner | Leanne Warren & Associates |
| For the Accused Donald McKinley | Mr I.C. Alger | Joseph Mamone |
HIS HONOUR:
Donna Faye McKinley, Brian Edward Lawrence and Donald McKinley you have each pleaded guilty to a count of being an accessory to murder contrary to s 325(1) of the Crimes Act 1958. The principal offence is the murder of William Woods by Christopher John Maddox (‘Maddox’) at Shepparton on or about 5 December 2007. Maddox has been charged with murder and a committal hearing is scheduled to commence in the Magistrates’ Court at Shepparton on 2 March 2009.
William Woods was born on 27 January 1981 and at the time of his death was 26 years old. He was unemployed and suffered from an intellectual disability. He had been removed from his family at about the age of five but had progressed from living in care facilities to living in the community in or about 2003. At the time of his death he lived on his own but was visited twice a day by an outreach co‑ordinator.
Despite his intellectual disability and history of care, he remained dearly loved by his parents and three sisters.
At the time of Mr Woods’ death Maddox was living in a de facto relationship with Donna McKinley at her father Donald McKinley’s house in Ford Road, Shepparton.
Maddox and Donna McKinley had three children aged under four. Donald McKinley was 59 years of age, Donna McKinley was 24 years of age, Brian Lawrence was 29 years of age and Maddox was similarly aged.
On 3 December 2007 Maddox met Mr Woods at a mutual friend’s home in Shepparton. Maddox invited Woods back to the house at Ford Road. They went to those premises and consumed alcohol and smoked cannabis. Mr Woods stayed overnight.
During the course of the next day Woods and Maddox smoked cannabis and Maddox also drank alcohol.
At about 2:00am on the morning of 5 December 2007 Maddox and Woods were in a spare bedroom at the Ford Road house. Maddox took a samurai sword from a wall upon which it was hanging. He raised the sword above his head and swung it at Woods causing extensive cuts to the head and the torso.
Donna McKinley heard a scream and came into the room. When she entered she saw Maddox striking Woods to the torso with the sword. She called her father Donald for assistance and left the room. Donald McKinley entered and grabbed Maddox in order to stop his attack on Woods. He disarmed him and removed the sword and then proceeded to hide it outside.
Maddox however obtained a ramset nail gun which had been adapted so as to fire .22 calibre ammunition. He used this to shoot Mr Woods once in the left temple region. It was this wound and not the previous sword wounds which caused the death of Mr Woods.
After Woods had been shot Donna McKinley at the request of Maddox telephoned Brian Lawrence using her father’s mobile telephone and requested Lawrence to attend the Ford Road house. Donald McKinley then drove to Lawrence’s house, collected him and they returned to the Ford Road house.
Maddox, Donald McKinley and Lawrence then dragged the body of Mr Woods from the house and placed it in the rear of Donald McKinley’s utility. They drove to a water channel approximately 150 metres from the house. They tied the body with wire and attached a car transmission to it to act as a weight. The body was then thrown in the water channel.
The three men then returned to the house where Maddox, Donald McKinley and Donna McKinley commenced to clean up the room where the murder had been committed. Lawrence assisted in this activity in a minor way. He also comforted Donna McKinley when she was engaged in the task of cleaning. There was a large amount of blood on the floor of the room and the carpet was removed and subsequently disposed of together with some other items.
Maddox with the assistance of the others burned a mattress which was blood‑stained, the carpet, clothing and a number of other items in an obvious attempt to conceal what had happened.
Later that day Donald McKinley drove Lawrence home.
Subsequently and probably on the same day, Maddox observed that the body had floated to the surface of the water channel. He reported this to Donald McKinley and they both went back to the water channel. They attempted to further weigh the body down using heavy chains. On the next day they again went back to the water channel. Despite the additional weights the body had again floated to the surface. Donald McKinley assisted Maddox to untie the car transmission and release the body. He also assisted in pulling the body from the channel and removing the chains. Maddox then used a hacksaw apparently owned by Donald McKinley to cut the head and feet from the body. The two men then cut a piece of tarpaulin and wrapped the body in it. Maddox and Donald McKinley drove to a country road about 10 kilometres from the water channel and dumped the wrapped torso by the roadside.
Subsequently Maddox disposed of Mr Woods head and feet in a disused channel pit about one kilometre from the Ford Road house.
Maddox also gave Donald McKinley a tin which contained the nail gun and told him to dispose of it. Some days after receiving the tin McKinley looked in it and having ascertained that it contained the nail gun, disposed of the nail gun in a water channel.
In an initial statement to police on 11 December 2007 Donna McKinley claimed not to have entered the room where the murder took place. In a subsequent interview on the same day she gave an account of seeing Maddox strike Mr Woods with the sword. She also said she wanted to call an ambulance but Maddox told her not to because Woods was too badly hurt. She said that instead he told her to call Lawrence which she did. She admitted using a mop to get blood off the carpet. She reluctantly also admitted that Lawrence had attended the premises at her request.
On 12 January 2008, she made a further statement in which for the first time she referred to hearing a gun shot and the subsequent disposal of the firearm by her father.
Lawrence was first interviewed on 11 December 2007. He admitted assisting in the removal of Mr Woods’ body and the mattress from the room and the dumping of the body in the water channel.
Donald McKinley was interviewed on 11 December 2007 and 12 January 2008. Ultimately he admitted to:
· driving to Lawrence’s property and bringing him back;
· assisting Maddox and Lawrence to remove the body to the water channel;
· using the transmission as a weight and putting the body in the channel;
· assisting in cleaning up;
· burning carpet, mattress and other items;
· assisting to again sink the body when it floated to the surface;
· on a subsequent occasion after the body had floated to the surface, assisting Maddox to remove the body;
· being present when Maddox severed the head and feet with a hacksaw;
· assisting Maddox to wrap the body in a tarpaulin and taking it to another location where it was dumped; and
· receiving the firearm in a tin and subsequently throwing the firearm in two parts into a channel.
The detail of these matters is essentially established from the confessional statements made by Donald McKinley to the police on 11 December 2007 and 12 January 2008. After confessing his involvement to police, he took them to the channel in which he had disposed of the gun and it was substantially recovered.
Prior to the killing of Woods, Maddox had been treated for schizophrenia. It is believed that he may seek to raise a defence of not guilty by reason of mental impairment at his murder trial.
Donald McKinley and Lawrence have given undertakings on oath before me to give true evidence at the trial of Maddox as envisaged by s 5(2AB) of the Sentencing Act 1991.
Lawrence was the first to volunteer to give evidence and did so at an early stage after having given a full and frank account of his involvement in the matter when first interviewed.
In my view (which must necessarily be preliminary) the evidence of both Lawrence and Donald McKinley is of potentially great significance to the Crown case. It will describe in circumstantial detail, apparently calculated and co‑ordinated actions by Maddox immediately after the killing.
As Nettle J observed in R v Stanbury:[1]
The significance of that assistance is to be recognised on public policy grounds that it is expected to contribute to the apprehension or successful prosecution of other offenders, and because it may be regarded as evidence of remorse or contrition, and because it is known that incarceration of a known informer is likely to be more onerous. The real utility of the evidence which you are to give on behalf of the Crown is also relevant to the size of the discount to be allowed.[2]
[1][2003] VSC 93 at [30]. Citations omitted.
[2]See also Malveso v The Queen [1989] 168 CLR 227 at 239.
In addition I note Donald McKinley instructed his counsel to apologise directly to the family of Mr Woods in open court, for the contribution he has made to their grief and anguish.
Lawrence through his counsel acknowledged to the family of Mr Woods the contribution his actions had made to their grief.
I turn then to the individual circumstances of each of the offenders.
Donna McKinley’s mother is a Pitjinjara woman who moved to Adelaide when Donna was 18 months of age. From that date her father Donald McKinley raised her. She attended primary and secondary school until the end of Year 10. It appears that in her father’s care she had a relatively happy and uneventful childhood. After leaving school she relocated with her father to Palm Beach, Queensland, where she worked in aged care.
She then returned to Shepparton with her father at age 20. She commenced living with her half‑brother Leroy at that time and undertook TAFE studies. She met Maddox soon after and they commenced living together almost immediately. The evidence is that Maddox was the ‘boss’ in the relationship. The evidence is also that Maddox has an extensive criminal history, that he is a drug user and suffers from recurrent schizophrenia. Nevertheless Ms McKinley formed a close relationship with Maddox and had three children with Maddox in the next three years.
Maddox consumed cannabis regularly and it is said, found that it had a quietening effect upon him. Donna McKinley does not use cannabis and her consumption of alcohol is limited.
After the birth of each of her children she suffered from post‑natal depression. This was particularly marked following the birth of her third child, Haley, at the end of December 2006 and the suicide of her brother Brett some days later.
A report from David A Jones, psychologist, states that Ms McKinley was probably clinically depressed in the period leading up to the violent death of Woods. I accept this finding having regard to her history and the evidence called before me. It further states that Ms McKinley appears to be of at least average intelligence and that she has a very strong attachment to her children. The current arrangements with respect to them are that they are in the custody of a Pitjinjara elder who lives in Shepparton, Aunty Patricia Magee (who gave impressive evidence before me). Donald McKinley takes his daughter to Shepparton by car from the Ford Road house to be with her children each day from 7:30am until their bedtime (she has no licence to drive a car). Ms McKinley is strongly committed to the care of her children.
Ms McKinley also remains significantly attached to Maddox. Telephone intercept evidence demonstrates this gives rise to some significant risk of exposure to further offending, simply by reason of association with a man who has a significant criminal history and is vowing to perform further criminal acts.
She has also had a strong ongoing relationship with her father Donald.
She has no prior convictions.
In my view her initial compliance with requests to telephone Lawrence and subsequently assist in cleaning the house up are not surprising given her essentially compliant and passive nature as described in evidence, ongoing depression and the fact that the requests were made by her de facto, in circumstances where she was confronted with horrific violence within her home. These matters bear on her moral culpability, and the issues of deterrence both general and specific.
Brian Lawrence is now aged 30 years. He lives with his de facto partner and their one year old daughter in rented accommodation in Shepparton.
His parents separated when he was aged two or three and he was brought up by his mother. He spent some time with his father after his 21st birthday but then fell out with him.
His mother is aged 66 and cares for her own mother and two of Mr Lawrence’s brothers. He has two further siblings.
He left school at 15 without being able to write. He did some labouring work but suffered bad doses of sunburn. Since the age of 19 he has had no paid work. He has no driver’s licence. He takes anti‑depressants. He attempted suicide in 1998 following a relationship breakdown.
He has used alcohol and marijuana to excess in the past but currently has this under control. He has received counselling and professional support to achieve this position.
Lawrence has prior convictions for minor drug offences in 1996 and two charges of theft in 1997. He has not previously been imprisoned. I do not regard these convictions as being of direct relevance to the matters now in issue, save that they demonstrate prior dishonesty and disregard of the law.
Prior to the events in issue, Lawrence was sleeping in a shelter at the front of his de facto’s home. He had consumed some alcohol and cannabis.
When he was picked up and taken to the Ford Road house Lawrence says that he did not know what to expect and was overwhelmed with the smell of blood and simply did what he was told to do.
It is apparent that Mr Lawrence is of low intelligence and was compliant with requests made to him by Maddox. I accept the opinion of Mr Jeffrey Cummins, psychologist, that Lawrence presents as someone who has a very compliant, dependent and inadequate interpersonal style. He presents as someone who would be easily led.
Further I accept that he acted as he did when confronted with evidence of horrific violence, by a man he knew suffered from schizophrenia and was capable of outbursts of irrational behaviour. It was in these circumstances that he agreed to assist Maddox.
I accept that Lawrence is and has been remorseful for his involvement in the removal of Mr Woods’ body. These issues again bear on his moral culpability and the issue of specific deterrence.
Mr Lawrence has not only pleaded guilty but undertaken to give evidence at the trial of Maddox. His evidence has the capacity to be materially relevant to the Crown case.
Further there is extensive telephone intercept evidence of threats made by Maddox from prison to kill Lawrence, Lawrence’s partner and his infant child; to blow up Lawrence’s home; and to kill Lawrence if he is placed in protective custody. Maddox has made detailed and extended statements to Donna McKinley in this regard and I accept that the intercepts constitute dramatic evidence of intention to harm Lawrence either directly or indirectly.
In turn I accept the view of Mr Cummins that Lawrence’s psychological state is likely to deteriorate, if he is imprisoned and that he would be vulnerable in a custodial setting.
I further record the concessions made by Mr Hillman SC on behalf of the Crown, that a three year custodial sentence is within the range appropriate for the sentence of Lawrence, and that there are circumstances justifying the suspension of such a sentence in whole.
Donald McKinley is 60 years of age. He was educated to the age of 14 years and since then has had a series of unskilled jobs which nevertheless display versatility in work capacity. He has worked as a dairy farmer, motor vehicle assembler, sugar mill labourer, electrical trades assistant, meat worker and more recently as an orchard labourer. He has a steady work history. He has a prior conviction for dishonesty many years ago but has never been imprisoned.
As I have said he cared for his daughter Donna from the age of 18 months onwards until she reached adulthood. He does not drink and has used cannabis only very occasionally. In the opinion of Dr Lester Walton he is a man of limited intelligence. He has struggled to understand why he elected to participate in the events subsequent to the killing. He expresses remorse and castigates himself for his involvement. I accept on the basis of the evidence as a whole that his remorse is genuine.
It is plain that at the time of the offence he awoke to be confronted with an horrific killing in his own home. At that time both his daughter and his three grandchildren were present within the house. The killing had been committed by a son‑in‑law with whom it appears he had established a fatherly relationship.
The fact that he initially co‑operated with Maddox in disposing of the body and cleaning up the house is perhaps not entirely surprising. In the event however he went far further than this. He assisted Maddox to re‑sink the body in the water channel when it floated to the surface and then when it again surfaced he assisted Maddox at the time of the dismemberment of the body and in the dumping of the torso. He acquiesced in the violation of Mr Woods’ body. He received the tin containing the nail gun and subsequently having ascertained that the gun was within the tin he disposed of the firearm into mud in a water channel.
The offence to which each of the accused has pleaded is a serious one. The maximum penalty fixed by Parliament is 20 years’ imprisonment and current sentencing practice reflects the gravity of the offence. That practice confirms that generally the offence requires a custodial penalty.
This said the sentence which is appropriate will necessarily vary according to the circumstances surrounding the commission of the offence and factors personal to the offender.[3]
[3]R v Stanbury [2003] VSC 93 at [23]; R v Dowdy [2005] VSC 68 at [17] noting this to be a case in which the principal offence was manslaughter.
In the present case each of the charges is a rolled up charge representing multiple acts of assistance to Maddox. In addition the manner of disposal of the body and its subsequent treatment was calculated to produce ongoing suffering and extreme distress to the family of Mr Woods.
Woods was initially missing until his torso was found on 11 December 2007. A funeral was then held with respect to his mutilated body.
His head and feet were not recovered until 30 January 2008. Following this a second funeral was held.
The emotional trauma and shock associated with the horrific circumstances in which Mr Woods met his death, were materially aggravated from the point of view of his family, by reason of the offences to which each of the accused has pleaded guilty. This is particularly true of the protracted concealment in which Donald McKinley took part.
The victim impact statements filed on behalf of Mr Woods’ family express their understandable grief and outrage. It is appropriate to observe that the trauma associated with the event of his death is such that it will remain with them.
It is incumbent upon me to impose penalties which provide for just punishment, public denunciation of your conduct, general deterrence and specific deterrence. As Vincent J observed in R v Culleton:[4]
It is very much against the community’s interest that persons should assist others in the concealment of the commission of very serious crimes, and clearly, as a general proposition, the engagement in such activity has to be deterred.
[4][1999] VSC 478.
As against these matters it is appropriate to take into account your pleas of guilty which were entered at the earliest possible opportunity, the undertakings given by Donald McKinley and Brian Lawrence to give evidence at the trial of Maddox, the horrific scene at the Ford Road house in which you were each initially persuaded to act as you did, your expressions of remorse which I accept as genuine, the lack of prior convictions on behalf of Donna McKinley, the lack of relevant convictions on the part of Donald McKinley and the lack of significant convictions on the part of Brian Lawrence, and the other matters of personal characteristics and circumstances which I have already mentioned.
In each of your cases your pleas of guilty have been entered prior to the determination of the guilt of Maddox of the principal offence and gain added weight by reason of this.
Donna McKinley – I sentence you to 18 months’ imprisonment and I direct that the service of the entirety of that sentence be suspended and that the designated period of suspension be a period of 18 months.
Brian Lawrence – I sentence you to two years’ imprisonment and I direct that the service of the entirety of that sentence be suspended and that the designated period of suspension be a period of two years.
Donald McKinley – I sentence you to two and a half years’ imprisonment and I direct that the service of that sentence be suspended save as to the period of one year and that the designated period of suspension be a period of two and a half years.
I declare that but for your pleas of guilty I would have sentenced Donna McKinley to two and a half years’ imprisonment with a minimum non‑parole period of one year.
I would have sentenced Brian Lawrence to three years’ imprisonment with a minimum non‑parole period of 18 months.
I would have sentenced Donald McKinley to five years’ imprisonment with a minimum non‑parole period of two and a half years.
In determining to suspend your sentences in whole or in part, I have formed the view that the gravity of your offences requires a term of imprisonment to be imposed in all the circumstances of the case, including your personal circumstances.
I have determined to grant suspension in whole or in part of the sentences, having regard to the factors set out in s 27(1A)(a) and (d) of the Sentencing Act 1991.[5] These matters fall to be assessed in the context of the whole of the circumstances of the case.
[5]Sentencing Act 1991, s 27
(1A)In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to—
(a) the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence—
(i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and
(ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and
(iii) reflects the gravity of the offence; and
…
(d) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.
In the case of Donna McKinley I have had particular regard to her prior good character, the circumstances in which she agreed to offend as she did at the scene, the unlikelihood of her further offending during the suspension of her sentence, her relatively young age, her ongoing commitment to the care of her young children (the other parent of whom is in custody), her vulnerability to continuing depression, and her plea of guilty.
In the case of Brian Lawrence I have had particular regard to the fact that he did not take a lead role, has low intelligence, the desirability of maximising his chances of rehabilitation, his plea of guilty, his undertaking to give evidence, the circumstances in which that undertaking was given, the unlikelihood of his re‑offending during the suspended term, and the concessions of the Crown.
In the case of Donald McKinley I have had particular regard to his history of steady work and care for his daughter over her lifetime, the horrific circumstances with which he was initially confronted in his own home, a home which contained his daughter and his grandchildren, his plea of guilty, his undertaking to give evidence and the unlikelihood of his further offending during the term of suspension.
A partly only suspended sentence is appropriate in the case of Donald McKinley, by reason of his significantly more extended offending and relatively greater culpability, the need to provide adequately for denunciation of his conduct, general deterrence and specific deterrence.
I am further required to explain to each of you the high probability that if you commit any further offence punishable by imprisonment, during the course of your suspended sentences, you will lose the benefit of the suspension and be imprisoned for the balance of the terms I have suspended. The suspended sentences will hang over the heads of each of you until they expire.
For the purposes of s 5(2AB) of the Sentencing Act 1991 I announce that the sentence which is imposed upon Lawrence and upon Donald McKinley is a less severe sentence than would otherwise have been imposed, because of their respective undertakings given on oath, to assist the Crown after sentencing in the prosecution of Maddox for the offence of the murder of Mr Woods which he is alleged to have committed, and I direct that there be noted in the Court’s records the fact that the respective undertakings were given and their details.
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