R v Mizon
[2002] VSC 115
•17 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1448 of 2001
| THE QUEEN |
| V |
| DAVID VANCE MIZON |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30, 31 January, 1, 4 – 7 February 2002 | |
DATE OF SENTENCE: | 17 April 2002 | |
CASE MAY BE CITED AS: | R v Mizon | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 115 | |
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Criminal law – Sentencing – Plea of not guilty – No remorse – Victim pregnant.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | W. Morgan-Payler QC Mr. D. Hallowes | Office of Public Prosecutions |
| For the Accused | Mr. R. F. Punshon SC Mr. R. Marron | Andrew George Solicitors |
HIS HONOUR:
David Vance Mizon on 8 February 2002 you were convicted by a jury of having murdered Lucille Rosalie May at Highett on 10 September 2000. It is now my duty to sentence you according to law.
The body of Lucille Rosalie May, commonly referred to by her friends and family as Lucy, was found by her sister Caroline Walker and her mother, Patricia May, at about 10 p.m. on Monday 11 September 2000 on the floor of the living room at her home at 11 Middleton Street Highett. The two women had gone to Lucy’s home because, during the course of that day, her mother had made a number of attempts to contact her on the telephone without success, arousing concern that there may have been something amiss.
Upon arrival at Lucy May’s house the two women found that the front security door was ajar but the front door was locked. They used a key to gain entry to the house and found the deceased’s body on the rear living room floor. A near by sliding door was open, a television set had been moved and a video cassette recorder was missing. The room was in a state of some disarray. Lights in the house were on and the deceased’s car was parked in the driveway. There was blood, not only in the area of the deceased’s body, but also in the kitchen and bathroom.
The pathologist who conducted an autopsy on the body of Lucy May determined that the cause of death was incised injuries to the neck; in other words, stab wounds. She found 11 stab wounds to the left side of the neck and 5 on the right anterior aspect of the neck. She was also of the opinion that an attempt had been made to strangle Ms May.
At the time of her death Lucy May had just turned 40 and she was about seven months pregnant with your child.
You first met Lucy May in 1995 when you were both involved in the Save Albert Park Organisation, a voluntary community association formed to oppose the holding of the Australian Grand Prix on a race track to be constructed in Albert Park. Your connection with the organisation was through your union activities to which I shall refer shortly. By that time you had had two marriages each of which had ended in divorce. You had two sons aged about 13 and 10 years respectively by the first of those marriages.
Shortly after meeting Lucy May a sexual relationship developed between you which persisted for some time until, in about 1997, you formed a simultaneous relationship with the woman with whom you were living at the time you committed this murder, April Bragg. In about mid 1997 you ended your relationship with the deceased and had no contact with her until about September 1999 by which time you were living with April Bragg. You recommenced your sexual relationship, unknown to April Bragg, but ceased it again in late January or early February 2000. Your cessation of the relationship affected Ms May badly.
During late February or early March 2000 Lucy May visited you at your workplace. She told you she was pregnant and that you were the father. There was a discussion about paternity and maintenance. No resolution of those issues was effected either then, or at any time before your subsequent criminal actions rendered any such resolution unnecessary.
On Saturday 9 September 2000 you went to the home of your first wife, Jane Stephens, in Murrumbeena to pick up your son, John, for the purpose of a contact visit due to last until Sunday evening. It appears that you exchanged words with Ms Stephens concerning child support payments and the fact that she said they were going to increase by about $3,000 per annum. You took the boy and remained with him throughout Saturday and Sunday.
At about 4.00 pm on Sunday you and your son visited your mother at her home in Mackinnon. She told you that she had had a conversation with Lucy May on that day in which Lucy May had said that she was pregnant. You were infuriated that this conversation had occurred. You incorrectly inferred that the deceased had initiated the phone call and had done so in order to place pressure on you. In fact your mother had initiated the telephone call which lasted for about an hour and a quarter.
At about 6.00 pm you took your son back to his home. You argued again with your first wife and then returned to your mother’s home. At about 9.00 pm you telephoned the deceased and spoke to her for just over eight minutes. You left your mother’s home at about 11.30 pm driving your maroon Ford sedan. You went directly to the deceased’s home and killed her, after which you drove to your home in Footscray where you made an ineffectual attempt to dispose of some of the evidence which might link you to the crime. You then went to bed.
By Tuesday 12 September police investigating Lucy May’s death were led to you by documents found at her home. You were interviewed, during which interview you told the first of a series of lies designed to allay police suspicion so far as you were concerned. The most significant of these initial lies was that you had not gone to the deceased’s home after leaving your mother on the Sunday night. Other lies involved explanations concerning your footwear and cuts to your hand.
After you were first interviewed no charges were laid and you returned home. However, realising that the lies that you had told would soon be found out you decided to contact the police investigators and offer further information. This you did in the form of an interview which occurred in the early hours of Wednesday 13 September.
During this second interview you said that, as a result of being informed that Lucy May had telephoned your mother, you telephoned her and arranged to visit her later in the evening. You said that you left your mother’s home around 11.30 pm and went to Lucy May’s home where you found the front wire door open and the main door ajar. You said your knocking produced no response but that you stood at the front door for 10 minutes before going to the back door which you also found open. You said that you then saw the deceased on the floor of the room in a pool of blood. You attempted to explain blood on your boots by telling investigators that when you moved the deceased’s head, blood had “pumped out” of her neck and onto your boots and hands. You claimed that an injury to your finger had occurred whilst working under your home on the previous Sunday and denied that it had occurred whilst you were at the deceased’s house.
In the course of the police investigation your blood was detected at the deceased’s home; on a bench which separates the kitchen and family room, on the bathroom floor, on the family room floor and on a tea towel found in a large carry bag on the floor of the deceased’s living room.
Although you gave evidence during your trial denying your guilt the jury were satisfied beyond reasonable doubt that you murdered the deceased. The likely motive for that murder appears to have been the financial and social inconvenience to you of her pregnancy.
You were born on 9 May 1959. You are accordingly almost 43 years of age. You are the only child of hardworking parents. Your mother was a French polisher and your father a Tramways and building trades worker. You apparently inherited an interest in left wing union politics from your father and have spent much of your adult life engaged in the union movement.
Your counsel has outlined to the Court your adult work history in some detail. Although not sworn to, this history has not been contested by the Crown, and is not inherently improbable. Accordingly, it is not inappropriate that I should accept it as true.
You are undoubtedly of above average intelligence as attested by your educational attainments, which culminated in a science degree from Monash University. You then worked for a short period in a medical scientific field until you were retrenched. You found re-employment difficult, perhaps, as you assert, because of your involvement in trade union politics. Eventually, however, you obtained work as a storeman and then, in 1986, commenced work in the petrochemical industry where you remained. You progressed rapidly in this employment until, by the time you committed this offence, you were probably earning in the region of $80,000 per year. I have heard evidence, in the course of your plea, from two of your fellow workers who spoke highly not only of your work capacity but also of your concern to better the employment conditions of those engaged in the industry. You were a union delegate. Your counsel submitted, without demur from the Crown, that you were a worthwhile, socially active and hardworking member of the community prior to the events of September 2000. I accept this submission.
Doctor Jeremy Smith, a lecturer at the University of Ballarat, told the Court that he had known you for some 15 years and that he had met you through political and trade union activity. He described you as a thoughtful person who was extremely committed to the union movement in respect of which you put in long hours of unpaid work. He described you as being committed to your mother and to your children. Another academic, Ms Sarah Palmer, gave similar evidence.
I have already noted that you were married twice. The first marriage subsisted for some 10 years or so; the second for only a few months. Your relationship with April Bragg which was subsisting at the time of this offence has, it would appear, now ceased. Your mother has returned to live in Scotland and your father died last year whilst you were on remand. Your counsel has said that you have no relatives with whom you have contact in Australia and accordingly you face your life in prison without any significant outside support.
So far as the offence of which you have been convicted is concerned it is difficult, on the evidence, to evaluate the extent of your culpability. The jury verdict establishes that you killed Lucille May with the requisite murderous intent. Beyond that, however, I am unable to determine the degree or extent of pre-meditation involved in the offence. Whether you went to Lucy May’s home with the intention of killing her or whether that intention was formed only after you arrived there, perhaps only in the seconds before you acted, it is impossible to say. As no weapon was ever found or identified it is impossible to say whether you were armed when you went to your victim's house and whether you used a weapon, such as a kitchen knife, which you found there. I mention these matters as, before the Court can take into account any aggravating factor in the sentencing process it must be satisfied of the existence of that factor beyond reasonable doubt. Accordingly, in this instance, you will be sentenced without any aggravation attributable to premeditation beyond that necessarily implied in a verdict of murder by a jury.
Your counsel has submitted that it would be reasonable to infer that following some confrontation between you and the deceased an explosive event occurred which led to a loss of control on your part. Such a finding would, in my opinion, involve impermissible speculation. Although the pathology suggests a frenzied attack, such an attack does not necessarily imply a loss of control in the sense contended for. You undoubtedly intended to kill the deceased. It is on that basis that you will be sentenced.
Remorse as a mitigating factor in the sentencing process has no place in this case. As your counsel has properly conceded, your continued denial of your involvement in the death of Lucy May deprives you of any benefit which might have been extended to you had you admitted your guilt at any stage of the judicial process.
The most significant aggravating factor so far as sentencing in this case is concerned is the fact that at the time you killed her, Lucy May was pregnant. She was accordingly extremely vulnerable. From time immemorial society has regarded pregnant women with particular solicitude. That this is appropriate is beyond argument. It needs no elaboration. I regard Lucy May's pregnancy as a significant aggravating factor in this case.
The deceased, Lucille May, was clearly much loved within the circles in which she moved. The eloquent victim impact statements filed in this case by those closest to her attest to that. Their loss is immeasurable and whilst that is not an aggravating factor for sentencing purposes, the taking of any human life in the offence of murder normally merits condign punishment. It is therefore appropriate that the Court acknowledge the suffering inflicted by your actions upon a wide circle of innocent people. Their restraint with respect to your position is admirable. It deserves commendation.
You have no prior convictions and, as I have already noted, you have lived an unremarkable life which has involved service to your fellow citizens. You are entitled to have these matters taken into account.
The principal sentencing considerations in a case such as this are those of general deterrence and denunciation by the Court and the community of the behaviour in which you engaged. So far as rehabilitation is concerned there would appear to be no reason to believe that you would differ from almost all other murderers in your position in never offending in this way a second time. Similarly, the question of protection of the community will be adequately addressed by the imposition of a sentence which takes into account the sentencing principles to which I have referred.
It is the sentence of the Court that you be imprisoned for 21 years. It is further ordered that you serve a minimum of 17 years before being eligible for parole.
I declare the period of 522 days as the period already served under this sentence by way of pre-sentence detention and I direct that the fact that this declaration was made and its details be entered into the records of the Court.
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