R v Oswell
[2004] VSC 399
•15 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1497 of 2004
| THE QUEEN |
| v |
| MARK JOHN OSWELL |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 DECEMBER 2004 | |
DATE OF SENTENCE: | 15 DECEMBER 2004 | |
CASE MAY BE CITED AS: | R v OSWELL | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 399 | |
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Sentence – Murder – Rape – Plea of guilty.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Kay Robertson, Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Dixon | Victoria Legal Aid |
HIS HONOUR:
Mark John Oswell, you have pleaded guilty to the murder of Rachael Lorraine Lawton at Cannons Creek on 21 February 2004. You have also pleaded guilty to one count of rape of Ms Lawton at Cranbourne on the same date.
At the time of these offences you were aged 26 and the deceased was aged 19. You had met her socially on a number of occasions but had no pre-existing relationship with her of any intimacy.
On Friday 20 February 2004 the deceased attended Kellys Motor Club Hotel in High Street, Cranbourne at about 9.00 p.m. During the course of the evening she met and talked to a man named Dixon to whom it seems she was attracted. He, however, left the hotel without her at about 12.30 p.m. At approximately 1.00 a.m. the hotel staff commenced closing the hotel and Ms Lawton then left the hotel with you and walked to your car. You had been drinking at the hotel for some time prior to this and had spoken to her during the course of the evening.
After going to your car you drove Ms Lawton to your parents' home where no one else was present at the time. According to your record of interview you then had a drink with her and kissed and cuddled.
You wanted to have sex with Ms Lawton and initially believed her to be willing, but she did not agree and asked to be driven to Frankston. You said you would not do this and an argument ensued. At A.736 of your record of interview you say:
"Well, to start – at the night, the way it was going, we were going to … that's why she asked me 'can you take me home, can you do this, can you drive me to Frankston', everything else. And yeah, after I said I wasn't driving her to Frankston, she snapped. She just turned on me, 'nuh, don't want to know you, piss off', grabbed me, and that was half way through everything else. So, she just wanted me … to drive her to Frankston, and she would have gone off with whoever she wanted to."
It seems that this was not the first occasion on which the deceased had rejected your advances at the end of a night, and that on this occasion you felt you were being used for transport and were not going to put up with it.[1] In the course of the argument the deceased grabbed and squeezed you in the genital area. She then got up to leave. You then "snapped" and grabbed her around the neck with your right hand and in your own words "squeezed like crazy". The deceased struggled with you and the two of you then fell to the floor. You held the deceased down and deliberately blocked her nose and mouth with your left hand to obstruct her airways until she stopped struggling. You did this, you say in your record of interview, because you were "pissed off with her". It appears that Ms Lawton may have temporarily lost consciousness but when you removed your hand from her mouth she said to you "I suppose you're going to rape me" and you responded "Yep just for the hell of it."
[1]A.864-870
You then proceeded to rape her while she was in what you describe as a semi-conscious state. Subsequently, she tried to get up and leave but you again subdued her and held her until she appeared to be unconscious. You told police you did this because you feared she would go to the police station. You then carried her to your car and drove from Cranbourne to Cannons Creek. You told police that initially you had just wanted to dump her not to kill her, seemingly in response to your perception that on other occasions she had "ditched you" at the end of the night after you had driven her to Frankston. Whilst you were travelling down Cannons Creek Road, however, Ms Lawton regained consciousness and began what you call squealing. She asked you where you were going. You told her she was going where you were taking her. You then drove down to the boat launching ramp at the end of Cannons Creek Road arriving there at about 2.00 a.m. When the vehicle stopped Ms Lawton opened the passenger door and began to run away but found she was facing the water. She then turned back up the boat ramp to be confronted by you holding a serrated edged knife. At this point Ms Lawton was screaming.
You grabbed hold of her from behind and while attempting to stop her screaming with your left hand, cut her throat with the knife held in your right hand. You describe this as "slitting her throat". In the course of this she bit your left thumb and you then stabbed her repeatedly in the stomach and chest inflicting some 15 discrete incised wounds to the neck and front of the torso. There were also a series of defensive wounds to her hands and forearms.
There is no doubt that as you told police you intended to kill her.
After you had stabbed her repeatedly you placed Ms Lawton's body in the water and pushed it out into Rutherford Inlet. You then drove off and dropped some of her belongings from your car in order to dispose of them. The next morning you returned to the scene feeling a mixture of emotions.
You were subsequently arrested on Tuesday 24 February 2004 at approximately 8.00 p.m. After initially denying your involvement you made full admissions with respect to the rape and killing of Ms Lawton. Post-mortem examination confirmed the injuries she suffered were generally consistent with the account you gave to the police.
I accept that the account you give in your record of interview is essentially reliable as to the matters you admit. I do so for the following reasons:
(a)it is stated to be prompted by remorse and acknowledges and describes your victim's suffering;
(b)it is circumstantial and corrects details misstated by you in your initial answers; and
(c)it admits matters such as the lack of Ms Lawton's consent to sexual intercourse and your actual intent to kill, which a person seeking to minimise his guilt would not admit.
The maximum penalty for murder is life imprisonment and for rape imprisonment for 25 years.
As Ms Dixon put to the Court in the course of the plea there is no readily apparent explanation for the savagery of your behaviour.
·You have no prior convictions.
·You have enjoyed stable relationships with girlfriends and have had a range of friendships with other women which suggest no obvious defect in your personality.
·You have been raised by loving parents and have had the support of an extended family.
·Despite little success at school you have been in relatively steady employment since the age of 15 and it appears you have substantial facility in repairing small engines and working with your hands generally. References from employers confirm that you are a good worker. At the time of the offence you were working as a contract fencer.
·You had no more than a casual prior relationship with your unfortunate victim.
Dr Walton, who was called to give evidence on your behalf, noted the following matters:
·You do not suffer from any mental illness.
·You were at the time of the offence under strain as a result of a series of matters involving financial difficulties (associated with gambling), tension at home between your parents, and a failure to obtain ongoing employment in Queensland. Evidence from your aunt and uncle corroborates these matters.
·The demeanour you have adopted while in custody avoids disclosing emotion, but you did express some remorse to Dr Walton.
·You are given to drinking heavily and alcohol played a part in the events of the evening.
·It is Dr Walton's opinion that you suppress and store up anger at frustration but are then prone to occasional outbursts. On this occasion the outburst was of an horrific nature and it seems from the evidence of another witness that on at least one prior occasion you were involved in an act of violence towards a woman.
Dr Walton's opinion is generally consistent with that of Mr Joblin. His report tendered to me also records that in his view you have a serious problem with alcohol and have suffered frustration in relation to problems with gambling, alcohol and family difficulties. It is Mr Joblin's opinion that you transferred deep frustration with your life onto Ms Lawton when you "snapped" after being refused a sexual relationship.
Based upon the above matters Ms Dixon submitted that the horrifying nature of your course of conduct must be acknowledged but that the following matters should be taken into account as tending to mitigate the penalty that might otherwise be imposed:
(a)your relative youth, your lack of prior convictions, your general work record and your lack of demonstrable mental illness. All of which may be said to bear on your prospects of rehabilitation;
(b)the fact that the offences were not premeditated; but were the result of impulsive behaviour which appears to have escalated after the initial assault in a tragic and disproportionate way;
(c)the fact that you were affected by alcohol; and
(d)the fact that there was a basis for underlying frustration and pent up anger in your life which you appear to have transferred to your unfortunate victim;
(e)your remorse; and
(f)your plea of guilty; and lastly
(g)the fact that you are being held in protective custody.
On the other hand, Mr Gyorffy submitted and suggested through cross-examination:
(a)that your offences were particularly serious because of the intent with which they were committed and in particular the ultimate deliberate intent to kill;
(b)you subjected your victim to an extended and brutal sequence of conduct, each of the offences constituting significant episodes in themselves;
(c)there was no underlying relationship with the deceased which might render your conduct explicable in some way;
(d)your remorse is limited only.
There are some aspects of counsel's submissions which are self-evident and others which require further evaluation. In the former category are your lack of prior convictions on the one hand and the gravity and deliberate savagery of your offences on the other.
There are, however, a number of other matters which give rise to more complex considerations which affect or qualify the weight they can be given as part of the sentencing process. In the latter category I note in particular the following:
(a)Although relatively young, you were and had been an adult for a number of years at the time of your offence. You had demonstrated some maturity both as a worker and in your competence as a fisherman. Your frustrations were adult frustrations albeit they were not handled in a mature manner.
(b)Although it is apparent you did drink over much of the night in question, you were still able to drive Ms Lawton to Cannons Creek and to return from that location. You were able to give a coherent and relatively detailed account of what occurred on that night. Furthermore, and in any event, the consumption of alcohol on that night could not justify your conduct in any underlying sense;
(c)I accept that you were affected by underlying depression and frustration at the time of the offence because of financial failure, problems in your parents' relationship and loneliness. I also accept as probably correct the transferral mechanism put forward by Mr Joblin and Dr Walton as the likely explanation in part for your disproportionately savage conduct. Nevertheless it must be said that objectively speaking nothing done by your victim could be regarded as provoking conduct of the kind in which you engaged while conversely it is clear from your record of interview that you decided you were not going to put up with Ms Lawton's conduct and acted in direct response to it;
(d)Although I accept your offences were not pre-planned both the rape and the murder involved a calculated and deliberate escalation of violence towards your victim.
(e)In reaching the above conclusions I have proceeded on the accepted basis that I must be satisfied beyond reasonable doubt of matters adverse to you but may take into account in your favour matters established on the balance of probabilities.
There remain three other matters advanced on your behalf which require specific mention:
(a)I am satisfied that despite the limited terms in which you have expressed remorse to Mr Joblin and Dr Walton, you did feel remorse at the time you confessed to police and your pleas of guilty thereafter involve a full acceptance of responsibility for the crimes charged;
(b)your pleas of guilty have spared Ms Lawton's family the pain and trauma of a contested trial. They were made at a relatively early stage and you are entitled to the benefit of them. It is this factor which I regard as most significant in reducing the penalty which I would otherwise impose. Nevertheless the weight to be given to the factors of remorse and your pleas of guilty must be muted to some extent given the gravity of your offences.[2]
(c)you are being held in protective custody and I accept that the circumstances of your incarceration are likely to impose a greater burden than normal upon you.
[2]R v Giles [1999] VSCA 208; R v Goodall [2000] VSCA 106
Insofar as relevant sentencing principles are concerned the following matters require emphasis. Firstly because of your age and the circumstances of your offence the penalty imposed upon you must seek to reflect elements of both specific and general deterrence. Secondly it must also reflect the gravity of your offences and the deliberate savagery first, of the rape and second, of the killing of your innocent victim. It must embody a significant and unambiguous denunciation and punishment of your conduct.
Thirdly it is of course also necessary to have regard to the principles of totality and proportionality. But it is clear that the separate and cumulative nature of the offences requires a total sentence which has a significant cumulative element.[3]
[3]Ibid and R v O'Rourke [1997] 1 VR 246
Fourthly on the other hand, having regard to your age and the other factors which I have mentioned, namely your lack of prior convictions, your general work record and your lack of mental illness, the Court should fix a non-parole period which facilitates the possibility of rehabilitation.
Mr Oswell, the life that you took was young and vibrant. You acted in a totally self-centred and brutal fashion and subjected Ms Lawton successively to a violent rape and vicious murder. You first debased and humiliated her and then after a period of considered conduct overpowered and savagely stabbed her. The circumstances in which she died could scarcely have been more terrifying or sickening.
As a consequence you have not only caused the loss of Ms Lawton's life in horrific circumstances but you have also caused deep and continuing emotional pain and hurt to Ms Lawton's family as the victim impact statements filed in this matter amply demonstrate. You have violated the sanctity of human life and the common humanity which we all share.
Mr Oswell, having regard to the above matters and the considerations set out in s.5 of the Sentencing Act 1991, I sentence you to 19 years' imprisonment for the murder of Ms Lawton and I sentence you to 8 years' imprisonment for her rape. I direct that 4 years of the latter sentence be served cumulatively upon the sentence for murder resulting in a total effective sentence of 23 years. I fix a non-parole period of 18 years and I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 294 days in custody.
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