R v Rendle
[2004] VSC 201
•27 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1457of 2003
| THE QUEEN |
| v |
| MATTHEW CHARLES RENDLE |
---
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 April 2004 | |
DATE OF SENTENCE: | 27 April 2004 | |
CASE MAY BE CITED AS: | R v Rendle | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 201 | |
---
CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Relevance of intellectual and cognitive impairment to issue of general deterrence - Sentence of 14 years with a non-parole period of 11 years’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gamble | Office of Public Prosecutions |
| For the Accused | Mr B. Bourke | Victoria Legal Aid |
HIS HONOUR:
You can be seated, Mr Rendle. Before I turn to the sentence in this matter, I refer to the application made by the prosecution on the occasion of your plea for an order pursuant to s.464ZF(b) of the Crimes Act 1958, that application being that the forensic sample previously obtained from you and any related material and information obtained from that sample be retained on the forensic database. I make the order sought. In so doing, I have taken into account the seriousness of the circumstances of the offence and the fact that I am satisfied that in all the circumstances, including the nature of the offence, the particular circumstances of the offence itself, and the fact that you through your counsel do not oppose the making of the order. I am satisfied that the making of the order is justified in the public interest and I direct that the solicitor for the Office of Public Prosecutions cause a copy the order and the reasons for making the order to be served upon your solicitors within 21 days of today.
I note that on the occasion of your plea I made a disposal order pursuant to s.78(1) of the Confiscation Act 1997 and a forfeiture order pursuant to s.33(1) of the same Act.
You Matthew Charles Rendle have pleaded guilty before me to the murder of Craig William Bohn. The maximum penalty for the crime of murder is life imprisonment.
This crime arises out of circumstances which took place at Ashwood in Victoria on the evening of Friday 26 July 2002. You and the deceased had known each other, and indeed were friends, for a period of approximately three years leading up to July of 2002. He was a regular user of drugs, as were you.
On Thursday 25 July 2002 the deceased man and three others by the names of Andrew Johnson, Wayne Jewell, and Adrian Kilner met up with you at the unit where you lived in Ashwood. There an amount of cannabis which had been purchased previously by one of your visitors was weighed on small electronic scales owned by you. The cannabis was then smoked by all five of you in a bong belonging to you.
That afternoon you found that your electronic scales had gone missing. It is obvious from the materials before me that this was a matter of concern to you.
The next day you were visited by a friend, Andrew Webster. In the course of speaking to Webster you became angry and you told Webster that you believed that the deceased man had stolen your electronic scales and that there was only one way to deal with the deceased. You showed Webster a black satchel containing detachable knife blades. You selected the largest of the knife blades from the satchel and threatened to use it on the deceased. You said, "This is going to do the job. This is the only thing that is going to fix it".
During the afternoon and the early evening of that Friday you made a number of phone calls to Webster and to another friend, Chris Lee. During these phone calls you angrily repeated your belief that the deceased man had stolen your electronic scales. However, at some stage during that evening you came to entertain a belief that it may have been Wayne Jewell who had stolen your scales. You attended upon his home. His mother came to the door whereupon you asked for her son. She told you that he was not at home. You said something to her about somebody taking your belongings. She asked you to elaborate. You said, "I'll show you what I mean, I don't carry this for nothing". You pulled a long bladed knife with an orange handle from your coat. Mrs Jewell observed that at the time you appeared to be very agitated and she considered "that you were making little sense". She suggested to you that you should call the police if you had concerns about stolen property. Upon her saying this you pulled out a mobile phone from your pocket and appeared to call police. Mrs Jewell then called the police herself. They arrived soon afterwards, by which time you had left her premises.
Subsequent to your attendance upon the home of Mrs Jewell, however, Andrew Johnson told you that it was, in fact, the deceased who had stolen your scales and that as well, he had stolen your anti-epilepsy medication. Upon being told this you, in company with Andrew Johnson, attended at the rear bungalow of 1 Jona Court, Ashwood where the deceased was then living. He was not at home. You waited for him to return, which he did soon after your arrival. Upon his doing so you walked into the bungalow and confronted him. You demanded the return of your scales and then produced the knife from inside your jacket pocket. You slashed his face as he tried to stand up from a sitting position on his bed. You then made further demands for the return of your scales. The deceased man admitted stealing your scales, but said he could not return them as he no longer had them. You then jumped on top of the deceased man and started stabbing him. Johnson who was present described you as "going ballistic". You then left the premises. Police and ambulance officers were then called and the deceased man died soon afterwards. You were arrested at your home at approximately 7.10 a.m. the next morning and you were interviewed by police at 11.15 a.m.
Post-mortem examination of the deceased revealed three stab wounds to the abdomen, as well as four such wounds to the legs, and at least three stab wounds to the upper limbs. The stab wounds to the abdomen caused haemorrhage and perforation of the bowel. One of the stab wounds to the leg divided the left femoral artery and vein. The cause of death was found by the forensic pathologist to be haemorrhage and multiple stab wounds.
That a person should lose his life over such a relatively insignificant matter is disturbing indeed. It is apparent that for many hours prior to your attack upon the deceased man you had ruminated over the theft of the scales. At least an hour, if not more, before the happening of the incident, you took a knife from your place of residence with you when you left to find the person responsible for the theft. Clearly you were prepared to use the knife if necessary. The incident which led to the death of the deceased cannot in such circumstances be said to be a spontaneous eruption of emotion. You had an opportunity to consider the possible consequence of your actions, but you continued with your chosen course of conduct to obtain recovery of the scales, if necessary by the use of violence.
Victim impact statements have been filed by the father and by two sisters of your victim. The father of your victim expressed his anger and frustration at the manner of the death of his son. Your victim's sisters each movingly expressed the effect that the loss of their brother has had upon them. Each of them has suffered significant trauma, anxiety and stress at his death. His loss will affect both of them for the rest of their lives.
A former partner Maree Kofoed has filed a victim impact statement which expresses her loss at the death of the deceased.
It is apparent that the death of the deceased occurred because of your inability over a considerable period of time to control your rage about the fact that your electronic scales had been stolen.
As has been pointed out by your counsel Mr Bourke, however, there are a number of mitigating factors of significance. Most significantly you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. I accept that it is a most significant matter to plead guilty to a charge of murder. The community has by your plea been spared the time and the cost of a trial. Furthermore, and of more significance, witnesses and relatives and friends of the deceased have been spared the trauma and the unhappiness and the stress of a full trial.
I take it into account in your favour that you have never intended to contest the basic facts of what occurred on the night in question. The committal proceedings took place by way of hand-up brief in September 2003 at which stage you reserved your plea. Although you did not plead guilty to the charge of murder until January of this year, there was a lengthy period during which issues of mental impairment were investigated by your advisors between the date of the charges being laid and that time.
In this regard I have referred to and considered the record of interview which was conducted by police with you the day after the incident. I observe that in the course of that interview you admitted the basic circumstances of the offence in question. Although your statements to police cannot be said to be fulsome statements of remorse, it should be noted that you told police that you had “gone and killed someone” who “should not have been killed”.
You are now aged 40 years of age. At the time of the offence you were 38 years of age. You have one prior matter for unlawful assault which I observe was found proven without conviction at Box Hill Magistrates' Court in October 1995. You were fined $125 in relation to this matter, as I have said, without conviction. I do not regard that matter as being of any relevance to the matter now before me.
Evidence has been led before me on your behalf. I heard evidence from your father, who in addition to giving evidence before me prepared a statement which was tendered before me. The statement establishes that difficulties with your behaviour became apparent at the time that you attended at pre-school. You failed to make any significant progress at primary school and in due course you were moved to Rossbourne House in Hawthorn which school provided for children with learning difficulties and disabilities of various types. Although you subsequently returned to primary school and in due course attended Diamond Creek Technical School, you made no significant progress at either school.
You suffered from a convulsion when you were about nine months of age and during your later years of schooling you suffered a number of epileptic seizures. You were treated by a number of psychiatrists during your childhood, but no diagnosis of any psychiatric condition was made at that time.
You have never been in employment, although for a brief period when you were about 16 years of age you helped out in a panel beating workshop in Clifton Hill. It also appears from the material before me that at some stage you made hula hoops in a toy shop. In your adult years you were admitted several times to the Larundal/Mont Park group of hospitals, usually in consequence of an overdose of barbiturates which were part of your epilepsy medication. For many years you have been on a disability support pension by reason of epilepsy.
Your mother who cared for you daily died of cancer in November 2002. It is apparent from the material before me that she was suffering from her illness at the time of the offence and that that was a cause of considerable stress to you. Your Uncle Myles Maxwell gave evidence before me and, in addition, produced a prepared statement which has been tendered before me. Your mother was the sister of Mr Maxwell. He informed me of the difficulties which he observed with your behaviour throughout your childhood and of the stress that the evident abnormality of your personality and behaviour caused your mother and other members of the family.
He gave evidence that he had seen you some weeks before the offence in question. He said that on 12 July 2002, and at the request of your mother, he attended upon your flat in Ashwood. He had been informed by your mother that she had received a phone call from you, that you were panicked, that you had no food in the house and no money to buy any. Upon Mr Maxwell's arrival at your flat he found a person from St Vincent de Paul delivering a box of food. He found that there was enough food in the refrigerator for you to have made a meal, but the house was in "an indescribable mess". He described you as being hysterical and "even weirder than usual". He said, "He was in a state of evident disintegration. We were very worried about him, but did not realise just how worried we should have been.".
In addition, I heard evidence from a clinical neuropsychologist Mr Martin Jackson who examined you on 22 March 2004. Mr Jackson had available to him a number of reports. Those reports demonstrate that you have had a history of epilepsy, as I have said, from an early age. You reported to Mr Jackson a long history of substance abuse. You told Mr Jackson that in your teenage years you would "use anything I could get my hands on".
In relation to this matter it is apparent that you were a user of drugs in the period of time leading up to the death of the deceased. Apart from the evidence that you used cannabis on the day of the death of the deceased, the statement of Andrew Johnson refers to an apparently unsuccessful attempt by you to buy “speed” that evening. Physical examination of you by a forensic physician on the afternoon of 27 July 2002 revealed green bruising on the forearms which the forensic physician associated with needle track marks. The medical reports enclosed with the depositions and those tendered by your counsel have numerous references to your abuse of alcohol, cannabis and the use of amphetamines over many years.
Having obtained the history of abuse of substances from you, Mr Jackson conducted a number of neuropsychological tests, WAIS testing in particular revealed a verbal IQ of 66, a performance IQ of 67, and a full scale IQ of 64. Mr Jackson said that to obtain an IQ score of 64 on the WAIS test means that you are functioning "around the .5 percentile"; in other words, it would be expected that 99.5 per cent of the members of our community would obtain a higher IQ score on that test.
Mr Jackson described these scores as being consistent with mild intellectual disability. In terms of planning and organisational skills, testing revealed disorganised, concrete and inflexible thinking. Mr Jackson concluded that the assessment reveals that you are, and I quote:
"A man of estimated borderline pre-morbid intellectual skills who demonstrates relatively intact basic intellectual functions, but also demonstrates acquired impairments in the areas of attention skills, working memory, new learning and memory abilities and executive functions. These latter functions are generally within the extremely low range. He is slow to process information, he cannot process two tasks simultaneously, he has a limited processing capacity, he has severe difficulties holding and manipulating information in his mind, he has difficulty learning new information, he forgets some information that he has learned, he has poor organisational skills and his thinking is concrete and inflexible."
He said further:
"Whilst it is possible that Mr Rendle's substance abuse has contributed to his neuro-psychological profile, it seems far more likely that he has sustained a brain injury related to his epilepsy. His profile is consistent with what is seen in hypoxic brain injuries and people with poorly controlled epilepsy (and drug overdoses) are at risk of sustaining such brain injuries. Therefore, the most plausible diagnosis is that Mr Rendle has suffered a hypoxic acquired brain injury on top of low pre-morbid intellectual skills."
In addition to the evidence given before me a number of reports were tendered before me by consent. Some of those reports relate to matters involving your treatment between 1980 and 1995. They demonstrate that you were seen in the casualty department of the Austin Hospital on 18 August 1979 after having suffered a fit. You were just 16 years of age at that time. A report apparently from the Austin Hospital in relation to a referral to the Royal Talbot Sheltered Workshop dated 5 March 1984 contains the following history:
"This young man was referred from the Austin Hospital for rehabilitation advice. A history was given of intermittent epileptic seizures during the previous four years which were described as well controlled if Matthew consistently complied with his medication. He also has a history of demonstrated behavioural problems (aggression, school truancy) and his mother has found it extremely difficult to cope with him at home ... His epilepsy began at the age of 16 to 17. The epilepsy is probably of the ... grand mal variety."
The opinion was expressed by the author of the report, a rehabilitation consultant in neuro-psychiatry, that you suffered from congenital mental deficiency in the mild range and that you would never achieve continuing open employment, but that you functioned at a level which would make you well suited to sheltered workshop employment. That opinion has proved to be correct by the years which have followed.
A clinical discharge summary from the Austin Hospital dated 20 August 1984 reveals that you were admitted to the psychiatric ward of that hospital on 26 August 1984 suffering from depression. Shortly prior to admission you had tried to slash your wrists and then taken an overdose of tablets. A diagnosis of "chronic personality disorder with poor impulse control and mild depression" was made at that time.
A discharge summary from Lurundel Hospital dated 2 April 1990 reveals that on 7 March 1990 you were found collapsed in the toilet of a local hotel and taken to the Monash Medical Centre. There you claimed you were depressed and suicidal and the records state that you became aggressive and violent with a flick knife. You were then certified to the Royal Park Psychiatric Hospital. Two days later you experienced a grand mal fit which was observed and recorded in the records. Although on admission you were at first thought to be psychotic, this condition, if it existed, resolved without specific treatment. The records of the Monash Medical Centre indicate that you were seen by that hospital on several occasions in 1998, 1999 and 2000 when you had taken overdoses of medication. During 2001 and 2002 you were admitted to the Austin Hospital following seizures. It was stated upon your admission that you had been consuming large amounts of alcohol and illicit drugs including cannabis and amphetamines at the time.
Of particular relevance is the fact that you were admitted to the Austin Hospital on 27 June 2002. The admission record notes that you were admitted with "odd behaviour" and "seizures" related to "non-compliance", which I infer to be non‑compliance with your epilepsy medication regime and "drug abuse". It appears that you remained in hospital until 4 July 2002. You were seen by Associate Professor Clarke, a psychiatrist, on 8 July 2002, less than three weeks before the death of the deceased[1]. His findings after two hours of interview are particularly relevant to establishing your condition in the weeks leading up to the murder. His findings on mental state examination were as follows:
"Matthew was co-operative through two hour long interviews. He seemed able to concentrate and attend fairly well and the conversation was reciprocal. His speech was fluent. There was no psychomotor retardation or agitation. At times the thought was a little hard to follow but there was no evidence of thought blocking or any specific tangential thinking. His affect was not particularly 'warm', but he did not demonstrate overt irritation or anger and co-operated with brief cognitive testing. There was no unusual behaviour and no evidence of hallucinations. The thought content did not have any particular persecutory or grandiose themes and there were no delusions apparent. He did not indicate any thoughts of suicide or homicide. He was clearly alert during the interview. On testing, his immediate recall was not perfect (2 out of 3, needing two rehearsals). He seemed grossly oriented in all ways although did not know the date and was wrong by one day on knowledge of what day it was. Obeying three part commands was completed satisfactorily, including ones involving left-right discrimination. His copy of two overlapping pentagons was impaired. His general knowledge (of people and recent events) was good. At the end of testing he could not remember the three objects."
[1]See report dated 8 August 2002 at p.327-329 of Depositions.
He said further:
"I accept that Matthew has epilepsy. In addition, or in parallel with that he has had difficulties throughout his life. This was confirmed by his father. These difficulties include schooling difficulties, drug use, and an inability to establish steady occupation and steady relationships. He does admit that he is under some stress at the moment. However, I did not conclude that there had been a major shift in his mental state, and he did not show signs of a discrete depressive illness or signs of a psychotic illness. His cognitive impairment is significant, though not severe and he would need more detailed neuro-psychological testing to clearly elucidate this.”
Professor Clarke concluded with the opinion that you do not suffer from a treatable psychiatric disorder such as depression or psychosis.
Subsequent to your arrest you have been examined by well qualified psychiatrists on a number of occasions. Dr Lester Walton, a consultant psychiatrist, examined you at Port Phillip Prison on 6 April 2003. He could find no evidence of psychotic disturbance, nor was he able to diagnose any specific personality disorder. A further report from Dr Walton dated 26 August 2003 after consideration of a number of reports which had been provided to him by Victoria Legal Aid, relating to observations made of you by Professor David Clarke and a Dr Grabau led Dr Walton to conclude that at the time of the attack upon the deceased you were not deprived of a capacity to distinguish right from wrong.
A psychiatric report from consultant psychiatric Dr Douglas Bell dated 21 September 2003 was tendered before me. Dr Bell concluded that although you have a history of many episodes of deliberately inflicted self-harm, and have attempted suicide over much of your adult life, and have had at least one previous psychiatric admission for what may have been a psychotic illness, the evidence that you suffer from any form of mental illness is minimal. He observed that in the record of interview you gave a coherent and detailed account of the events as you recalled them in a way which demonstrated a detailed awareness of the nature of your behaviour.
Accordingly, and having considered the voluminous medical material before me, and although there is no evidence of established psychiatric illness, I accept that you have throughout your life suffered a number of significant difficulties. Notwithstanding the love and support bestowed upon you, particularly and perhaps obsessively, by your mother, you have been unable to achieve steady employment or indeed any significant stability in your life.
I accept that you commenced to suffer from the effects of epilepsy in your early teenage years and that that condition has affected you seriously throughout your life. The medical reports produced before me demonstrate that the medical control of your epilepsy has varied over the years since your teenage years. Although there are established to be significant periods when you were seizure free, it is apparent that you have been admitted to hospitals on numerous occasions because of overdoses of medication, seizures and on some occasions apparent depression. It is apparent from the material before me that at least some of these admissions are related to alcohol and drug abuse. The medical evidence before me is clearly to the effect that you have suffered poor impulse control throughout your adult life. I accept the evidence of Mr Jackson that your pre-morbid intelligence was borderline and that you have acquired impairments in a number of areas, and that your thinking by reason thereof is concrete and inflexible. I accept his evidence that although substance abuse may have contributed to such acquired impairment, it is probable that you have suffered some hypoxic brain damage by reason of your poorly controlled epilepsy.
Your counsel Mr Bourke submits that your intellectual impairments, your plea of guilty, together with the fact that for nearly all of your life you have by reason of your limited intellectual ability, and your epilepsy together with other personal deficits, lacked an ability to cope with your life, are relevant indeed to the sentence. He submits that such factors call for the imposition of the lowest possible minimum term for the sentence of murder and indeed he submits below that imposed by the Court of Appeal in R v Donnelly[2]. He submits that you have had "a tragic and hopeless existence" and while he concedes that the circumstances of your case are not such that it comes within the strict principles of R v Anderson[3], he submits that a person in your position who has suffered life long illnesses is entitled to different considerations than those that might be regarded as usual, particularly in relation to such matters as are relevant to the issues of general and specific deterrence.
[2](1997) 91 A Crim R 550.
[3][1981] VR 155.
The concession made by your counsel in relation to the non-applicability of the principles established by Anderson's case in the circumstances before me is clearly appropriate. Neither Dr Walton nor Dr Bell, both of whom I accept are highly experienced forensic psychiatrists, have made any diagnosis of psychiatric or mental disorder. Professor Clarke reached a similar conclusion upon his examination of you some three weeks before the happening of the murder. Neither Dr Walton nor Dr Bell nor, as I read it, Professor Clarke suggest that you suffer from a serious definable psychiatric illness. However, that said, there is a basis to say that notwithstanding the evidence before me, that at the time of the offence you were able to distinguish right from wrong, and further the evidence before me is that upon subsequent examination no formal thought disorder or other disorganisation of thinking was exhibited, your pre-existing intellectual and neuro-psychological disability is of relevance. In R v Yaldiz[4] Batt JA said:
". . . General deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap."
[4][1998] 2 VR 376 at 381.
Whilst the severity of the intellectual handicap from which you suffer may be the subject of some debate, the conclusion of Mr Jackson being that you function in the mild intellectual disability range, some aspects of your intellectual function are nevertheless significantly and severely impaired. In particular, and although upon testing you demonstrated to Mr Jackson that you have "relatively intact basic intellectual functioning", it is established by such testing that you suffer from acquired impairments which render you "slow to process information" and cause you "severe difficulties in holding and manipulating information". As stated above, Mr Jackson concludes that your thinking is concrete and inflexible.
I accept that there is established by the evidence some association between these latter impairments and your conduct on the night of the offence. The evidence establishes that on the day of the offence you were preoccupied with the issue of the theft of your electronic scales. Your behaviour whilst so preoccupied was on any objective view an excessive response to the insult from which you believed you had suffered. Your behaviour in attending at the home of Wayne Jewell in the course of the evening and producing a knife to his mother demonstrates, as she observed, considerable agitation. The use of your mobile phone to call police to complain of the theft whilst at Mrs Jewell's house, and shortly after producing a knife to her and then departing before they arrived, is at the least reflective of a considerable lack of consequential thinking. I accept that this behaviour is an example of the concrete and inflexible thinking processes which are a consequence of the acquired deficits which Mr Jackson considers have become superimposed over a low pre-morbid intellectual level. In such circumstances I conclude that whilst general deterrence remains a relevant factor in the sentencing process, it should be sensibly moderated. Furthermore, the issue of specific deterrence is not without significance, notwithstanding your established deficits in some areas. It is quite apparent from the medical material before me that you have sufficient cognitive ability to understand the necessity not to engage in violent behaviour. In this regard Dr Bell's conclusion that the record of interview shows a preserved capacity for moral reasoning is not without significance.
The issue of rehabilitation is likewise a matter of some significance. Although there is no evidence before me that you were significantly effected by the use of drugs on the evening in question, the evidence before me establishes clearly that for many years prior thereto you have been an illicit drug user. Although it is likely as Mr Jackson concludes, that you have suffered some hypoxic brain injury by reason of your poorly controlled epilepsy, it is inarguable that your use of illicit drugs makes your condition more complex and more difficult to control. Thus an opportunity to partake in drug education and rehabilitation is a relevant matter. Furthermore, I am called upon by the Sentencing Act to impose generally a just punishment. There is, in the circumstances before me, no alternative but to impose a term of imprisonment, but the maximum sentence and the non-parole period I propose to fix reflect, in my view, the significance of your plea of guilty, the suitably reduced moral culpability by reason of your mental disability and the fact that by reason of your cognitive impairments and your personal background of relationships that you may find prison more difficult to endure than might otherwise be the case.
I sentence you to 14 years' imprisonment. I direct that you not be eligible for parole until you have served a period of 11 years imprisonment.
Pursuant to s.18(1) of the Sentencing Act 1991 I declare that the period of 641 days is the period reckoned as a period of imprisonment already served under the sentence and I direct that the same be noted in the records of the court.
Remove the prisoner.
---
0
0
0