R v McMahon
[2002] VSC 244
•20 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BALLARAT
CRIMINAL DIVISION
No. 1530 of 2000
| THE QUEEN |
| v |
| LISTER CAMERON McMAHON |
---
JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-7, 10-14 September, 20 December 2001, 21 February & 17 June 2002 | |
DATE OF SENTENCE: | 20 June 2002 | |
CASE MAY BE CITED AS: | R v McMahon | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 244 | |
---
CRIMINAL LAW – Sentencing – Murder/Arson – Plea of not guilty – Mental illness – No defence based on illness – Relevance of general deterrence – Arson followed murder – Concurrent sentences – 17/14; 3/1
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Leckie | Solicitor for Public Prosecutions |
| For the Accused | Mr G J C Silbert | Susanne & Alister McKenzie Pty Ltd |
HIS HONOUR:
Lister Cameron McMahon, on 14 September 2001 you were convicted by a jury at Ballarat of one count of murdering Grant Plier and one count of arson in respect of damage to a home unit in which you were living, owned by the Office of Housing. It is now my duty to sentence you according to law.
Since at least 1990 you have suffered from a severe psychiatric illness, variously referred to as schizophreniform psychosis or a schizomanic-type schizoaffective psychosis. This condition has been exacerbated from time to time by your abuse of various therapeutic and non-therapeutic drugs. It has necessitated your in‑patient treatment on various occasions, on some of which at least, you were an involuntary patient. The depositions upon which you were committed for trial contain some 70 pages of material emanating from the Grampians Psychiatric Services documenting your psychiatric history. It paints a picture of a severely disturbed man subject to hallucinatory episodes as well as episodes of violence. At different times you were regarded as being at risk of suicide. For the most part you have little insight into your illness which means that you have only a limited understanding of the existence of that illness and its effect upon you.
You were born and raised in Ballarat, the second youngest of six children of parents who divorced when you were about ten years old. You had an apparently uneventful, if ordinary, education. You have no family history of psychosis and the only relevant psychiatric family history was that of a single admission of your father to Lakeside Psychiatric Hospital with an unknown diagnosis on an unknown date.
Like many people in your position your work history has been erratic. However you are fortunate in that you have some family support as evidenced by your brother's concern for you prior to and during your trial.
Accommodation for psychiatric patients who are regarded as being able to live in the community is currently provided by various community based psychiatric support services largely funded by government. Such organisations typically supervise the accommodation of patients in government or private rental accommodation, usually flats or units.
At the time of the events with which the Court is concerned in this case Centacare, the social welfare arm of the Catholic Diocese of Ballarat, was responsible for the accommodation of psychiatric patients in units situated at 517 Ripon Street South, Ballarat. One of those units, Unit 2, was lawfully occupied by Grant Plier, another schizophrenic with a history of marijuana use and episodic excessive consumption of alcohol. About six weeks prior to 6 April 2000 you commenced living in Plier's unit with him. Although Centacare was apparently aware of this arrangement it was, at least technically, illegal as you were not authorised by it to occupy Plier's unit with him. The other unit on the site, Unit 1, appears to have also been occupied in similar manner by one or two other psychiatric patients.
The evidence suggests that whilst you lived with Plier the daily routine of both of you involved little or no useful activity but did include the consumption of large to very large amounts of alcohol.
On Thursday, 6 April 2000 you, Plier and another occupant of the same units, one Daniel Griffin, bought a quantity of alcohol and drank it in Unit 1. In fact the three of you had also spent most of the previous day drinking. In the late afternoon or early evening of the Thursday night Griffin left Unit 1 and returned to his unit next door. Like you and Plier he was on medication, and he claimed that a combination of the medication and heavy drinking had affected him to such an extent that he just wanted to go to sleep. He said that you did not seem to be really intoxicated when he left.
At about 7.25 p.m. on that Thursday evening a Mr Robert Suter was in his garage which was situated behind the Ripon Street units when he heard a loud "bang". He saw smoke coming from the garage of Unit 1 and called the fire brigade. He approached Unit 1 but his attempts to raise anyone inside were unsuccessful, although whilst he was trying to do so the front door of the unit slammed and the inside lights were extinguished. Someone was clearly moving about inside the unit and, as subsequent events demonstrated, it was not Grant Plier.
In due course, the fire brigade attended and found the body of Grant Plier in a burnt condition in the garage in which a fire had been started, probably using some form of hydrocarbon accelerant.
Although Mr Plier's body was severely affected by the fire, a post mortem examination conducted the following day at the Coronial Services Centre in Melbourne established that the cause of his death was a number of injuries to his head and chest. In particular he had stab wounds to his chest and extensive subarachnoid haemorrhage around the brain. The pathologist who conducted the post mortem considered that Mr Plier was dead before his body was burnt in the fire.
At the time the fire brigade entered the unit in which you and Plier had been living you were not present. In fact you were not found until the following Saturday when you made contact with your brother. Your evidence on this aspect of the case was that you were awoken from sleep by a loud bang at about this time and fled the scene; concerned that your illegal occupation of Plier’s unit might be discovered.
In interviews with the police and in evidence during your trial you consistently denied that you had anything to do with Plier's death. However, on the basis of the Crown case, which included DNA evidence, crime scene analysis, and inferences from some of your own answers to the police, the jury found you guilty of Plier's murder and of having set fire to the garage. Your denial of your involvement in these crimes was supported, you said, by the lack of any apparent motive for your wishing to dispose of Plier. Notwithstanding this, however, your evidence that you last saw Plier alive in the loungeroom of the unit smoking marijuana with two unidentified men before you went to bed in another room must have been rejected by the jury, as must your denials of any involvement in Plier's death and your explanation as to how you had biological material traceable to him on your shoe.
Your defence to these charges rested solely on your denial of your involvement in either of the offences charged. You did not raise any issue of intent or the like which may have been affected by your psychiatric history, the medication you were taking or, indeed, the alcohol you had consumed.
Due to the wishes of your legal advisors to obtain psychiatric evidence on your behalf and court commitments elsewhere I was unable to commence hearing your plea in this case until 20 December 2001. Before doing so, however, I had my associate draw your solicitors' attention specifically to Part 5 of the Sentencing Act 1991 which contains provisions enabling a court, in appropriate cases, to make sentencing orders which commit people suffering from certain psychiatric illnesses to hospital rather than to prison. However, on the day the plea commenced your solicitor made no submission to the effect that you should be the subject of a hospital order, relying instead upon psychiatric reports of Dr Lester Walton of 12 October 2000 and 13 November 2001. Dr Walton considered the treatment for your psychiatric condition could be " … minimally adequately provided in a custodial context." Your solicitor took the view that the doctor being of that opinion precluded you from seeking such an order.
Concerned that proper attention might not have been given to the provisions of Part 5 of the Sentencing Act 1991, I adjourned the hearing of your plea to enable your legal representatives to undertake further research into your case in terms of that part of the Sentencing Act.
Your plea was listed again on 21 February 2002 when counsel on your behalf submitted that the enquiries which needed to be made to see whether the provisions of Part 5 could be activated in this case could not be effected by your legal advisers. As it was clear that no progress was going to be made in this regard unless the Court made an appropriate order, I ordered that a pre-sentence report be obtained pursuant to s.96 of the Sentencing Act 1991, such report to be specifically directed to the matters referred to in s.93 of the Act with a view to determining the suitability of your being henceforth detained pursuant to a hospital order under Part 5 of the Act. Eventually, a pre-sentence report dated 27 May 2002 was received by the Court, followed by a psychiatric report dated 12 June 2002 from Dr J. Barry-Walsh of Forensicare addressing the issues to which the order of 21 February was directed. I have taken both of those reports, as well as those of Dr Walton, into account in fixing your sentence.
I set out the above history to explain the inordinate and regretable delay which has occurred between your being found guilty of these offences and your being sentenced.
In his report, Dr Barry-Walsh concluded that, when he assessed you for the purposes of writing that report, he found little evidence of active psychiatric illness. He considered that you would not be an appropriate candidate for a disposition pursuant to s.93 of the Sentencing Act 1991 in that, although you do have a mental illness and treatment could be obtained by admission to hospital, you do not need to be admitted and detained for treatment as an involuntary patient. He also noted that if your mental state was to deteriorate you could be transferred to the Thomas Embling Hospital pursuant to appropriate statutory provisions found in the Mental Health Act.
In light of the above I must now sentence you to a term of imprisonment. I am unable to make a hospital order. Your psychiatric illness is relevant only insofar as it impinges upon the ordinary considerations a court must take into account in reaching an appropriate sentence for the crimes of which you have been found guilty.
The law requires me to consider whether, in the circumstances in which you killed Plier there is a clear connection between that offence (and the arson of which you were also convicted) and your psychiatric illness. If there is such a connection the issue of general deterrence will be of lesser importance in your case than it might be where there is no such connection. Such a relationship is difficult to see in your case although common sense suggests that it must exist, particularly perhaps in the absence of any ascertainable motive. In the circumstances I consider it appropriate that the principle of general deterrence be sensibly moderated in fixing sentences for the crimes of which you have been convicted. However, your mental illness does not eliminate entirely the need for the sentence imposed upon you to reflect some degree of general deterrence.
The medical reports of Dr Walton and Dr Barry-Walsh to which I have referred simply repeat what is already well documented in the files of the Grampians Psychiatric Service: that you are suffering from a major mental illness. In all probability that situation will not change. When that fact is combined with your denial of responsibility for Mr Plier's death and the subsequent arson, your lack of overt remorse is entirely understandable. Your counsel puts it that notwithstanding that lack of remorse you are sorry that your friend is dead. I accept that that is about the highest this aspect of your case can be put.
Victim impact statements filed in this case by Mr Plier's mother, Mrs Barbara Plier and his sister, Ms Vikki Tainsh attest to the effect that this crime has had upon those closest to the primary victim. Not surprisingly, Grant Plier's death has been devastating from their point of view.
The principal sentencing considerations in this case must be those of specific deterrence, the denunciation by the Court, and hence the community, of these dreadful crimes, the protection of the community, and the establishment of conditions which are most likely to lead to your rehabilitation. As already discussed the principle of general deterrence is somewhat less important. So far as rehabilitation is concerned I note that you have successfully completed some prison educational activities whilst you have been on remand thus, at least, suggesting a capacity for rehabilitation. Protection of the community will be effected by the imposition of a long term of imprisonment by the end of which you will have matured somewhat, if for no other reason than the passage of time. As far as denunciation of your crime is concerned, it must also be recognised that this sentencing principle also carries less weight where an offender is suffering from a mental illness, particularly one as severe as yours appears to be, at least episodically.
I am mindful of the fact that you have been convicted of two offences and a sentence must be imposed in respect of each of them. However, it was conceded by the Crown that the arson which followed the murder in this case was more an attempt to destroy the murder evidence than it was an independent criminal act. Accordingly it is not inappropriate that there be total concurrency in respect of the two sentences.
It is the sentence of the Court that on the charge of murder in Count 1 you be imprisoned for 17 years. It is further ordered that you serve a minimum of 14 years before being eligible for parole. On the charge of arson in Count 2 you will be imprisoned for 3 years, with a minimum of 1 year before being eligible for parole, such sentence to be totally concurrent with the sentence imposed on Count 1, making a total effective sentence of 17 years with 14 years minimum. I declare the period of 746 days as the period of pre-sentence detention already served in respect of these sentences and I order that this declaration and its effect be entered in the records of the Court.
---
0
0
0