R v Schaeffer
[2006] VSC 434
•27 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2003
| THE QUEEN |
| v |
| PETER ANTHONY SCHAEFFER |
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JUDGE: | COLDREY J | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 16-26 OCTOBER 2006 | |
DATE OF SENTENCE: | 27 OCTOBER 2006 | |
CASE MAY BE CITED AS: | R v SCHAEFFER | |
MEDIUM NEUTRAL CITATION: | [2020] VSC 434 | |
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Criminal Law - Sentence - Murder - Unplanned killing - Use of baseball bat and knife in response to threats - Considerations applicable to sentencing on retrial - 16 years imprisonment with a non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Solicitor for Public Prosecutions. |
| For the Accused | Mr J. Montgomery | Tony Hannebery Lawyers. |
HIS HONOUR:
Peter Anthony Schaeffer, you have been found guilty by a jury of the murder of Nathan Jon Hanley at Wodonga on 21 June 2003. I must now pass sentence upon you. In order to do so it is necessary to briefly outline the circumstances surrounding the commission of this offence.
The deceased, Nathan Hanley, had, until January 2003, been in a relationship with Kimberley Terlich. Prior to their separation the couple had had a son, Dakota, who was born in September 2003.
Nathan Hanley had an alcohol problem and also one of anger management. These he was attempting to address by way of medication and counselling. He remained, however, prone to outbursts of violence. In February 2003 he damaged some property belonging to Ms Terlich and in March 2003 he assaulted her. Nearer the time of the incident, the subject of this offence, two episodes occurred. At the beginning of May 2003 Mr Hanley attended 143 Brockley Street where he assaulted Ms Terlich, inflicting upon her a black eye and a blood nose. On that occasion your brother, Richard Schaeffer, chased him from the premises whilst wielding a baseball bat. You were not present but you were later informed of this incident.
On 20 May 2003 Mr Hanley sought to enter Ms Terlich's Wodonga home in order to see his son, Dakota. He broke a back window of the property in an attempt to open a door. He desisted after severely cutting himself. On that occasion you were present in the house but you left the premises rather than confront Mr Hanley. Your presence at Ms Terlich's house was as a result of a growing friendship with her. On occasions this friendship had a sexual aspect to it.
As a result of this incident, and on the advice of the Wodonga Police,
Ms Terlich took out an Intervention Order against Nathan Hanley. Nevertheless, the couple continued to communicate and shortly before the night of this offence, following his grandmother's death, Mr Hanley spent the night with Ms Terlich. Thereafter, there were tentative discussions about a reconciliation which Nathan Hanley was keen to effect. The evidence of Ms Terlich suggests that you were not particularly happy with this turn of events. Similarly, Mr Hanley was resentful of your presence in his former partner's life.
On 20 June you and Ms Terlich commenced drinking during the afternoon. You were joined by Richard Schaeffer and his wife, Anna, at 143 Brockley Street, which was the couple's residence. There was further socialising and drinking into the evening. Some time prior to 10 p.m. the four of you went to the Biralee Tavern where more alcohol was consumed. Drinking continued on your return to the Brockley Street premises. The evidence indicates that by the time the inmates of the house decided to go to bed, you were all intoxicated. You were, of course, entitled to consume as much liquor as you wished, particularly in the privacy of the house - you had done nothing unlawful.
In the meantime Nathan Hanley and his friend, Mark Smillie, were also drinking at Mark's residence at Jobe Street, Wodonga. Around midnight,
Mr Hanley, who had expressed happiness at the possibility of reconciliation with Ms Terlich, announced that he wished to go to her home to see his son, Dakota. Given the time and Mr Hanley's state of sobriety, Mark Smillie attempted to dissuade him from leaving his home. In this he was unsuccessful. As fate would have it, the quickest way to Ms Terlich's home was past the Brockley Street premises.
On reaching this house Mr Hanley observed Kimberley Terlich's motor car parked on the naturestrip. There can be little doubt that he was devastated by the knowledge that Ms Terlich and his son, Dakota, were inside the Schaeffer premises. His drunken response was to threaten and abuse both you and Ms Terlich, at times calling for you both to come outside. In addition, Mr Hanley was banging on the roof of Ms Terlich's vehicle. Efforts by Mark Smillie to persuade Nathan Hanley to leave the scene failed, and, according to his evidence, he walked off angry and frustrated at Nathan Hanley's conduct. In a last ditch effort to remove Mr Hanley from the scene before the police inevitably attended, Mr Smillie returned. He did so in time to observe you striking Nathan Hanley to the head with a baseball bat. How did this come about? There is some conflict in the evidence, as to whether you were in bed, or in the kitchen when the aggressive and unwarranted actions of Mr Hanley commenced. What is clear is that you obtained a knife with an eight inch blade from the kitchen, and additionally armed yourself with a baseball bat, previously brandished by your brother, Richard.
Pushing Ms Terlich aside, you rushed into the front yard of the house. The tragedy for both you and Nathan Hanley, and your respective families, is that you could have rung the police, as the neighbours did, using Kimberley Terlich's mobile phone. Given that Mr Hanley was in breach of the intervention order, the expeditious attendance of the police could have been expected.
The precise motivation for your actions can never be known with any certainty. It may well be, however, that fuelled with alcohol and filled with drunken bravado, you wished to prove yourself a hero, and even perhaps outdo your brother's earlier efforts with the baseball bat. Certainly, it can be inferred that you were angry. Again, the precise sequence of the events that occurred in the front yard of 143 Brockley Street, will probably never be known.
It is likely, however, that Mr Hanley was standing on the front lawn drinking from a VB stubbie, of which he had brought an ample supply. Since he had a blood alcohol reading subsequently recorded as .290, more than five times the legal limit for driving, it is possible that his level of awareness and co‑ordination were reduced. You, of course, were not to know that.
Mr Hanley, although a big man, was also unarmed. The events thereafter occurred very quickly. In my view, the jury would have been satisfied that you stabbed Mr Hanley twice while he was standing up on the front lawn. One stab wound, which was 13 centimetres, or about five inches deep, was to the left flank, and the other to the lower chest upper abdominal area, was five centimetres deep. The stab wound to the left flank cut the aorta and both wounds resulted in acute blood loss. Indeed, this acute blood loss was, in the opinion of the pathologist, Dr Malcolm Dodd, the cause of death.
Because the cause of death was blood loss, such wounds would not necessarily have caused the deceased to fall instantaneously. Indeed, given his blood alcohol levels, any pain from the wounds may not have immediately registered.
In the course of the stabbing, the kitchen knife broke, and you discarded the handle on to the lawn. With that hand now free, you commenced to swing the baseball bat with both hands inflicting two lacerations to Mr Hanley's head. These, however, were not fatal blows. It was these blows that Mark Smillie observed, and according to his evidence, he struggled with you to prevent you inflicting further blows. That struggle took both of you on to the roadway.
You were both in that position when you heard Kimberley Terlich screaming. She had left the house to find Nathan Hanley lying on the footpath adjacent to the letterbox. You and Mr Smillie returned to this vicinity, and I am satisfied that you called for an ambulance to be obtained and made an effort to move Mr Hanley in order to get him into Ms Terlich's car. This is when the contact occurred causing Mr Hanley's blood to stain your jeans.
I am also of the view, that the only struggle actually witnessed by the neighbours was between you and Mark Smillie. Certainly the jury rejected any suggestion that the two wounds inflicted on Mr Hanley were sustained during the course of a wrestle by you with him or in your falling or rolling around on the ground with him.
In my view, you were aware at the time of the event, that you had stabbed Mr Hanley. Indeed, you admitted to various persons, including your brother-in-law, Michael Kurrle, that you had done so. Such a realisation is also implicit in your statement to Anna Schaeffer, "I'm fucked, I'm fucked".
Despite that realisation, and perhaps because you could not accept the enormity of what you had done, you initially placed the knife in Mr Hanley's hand in your account to the investigating police. There is no doubt you found it difficult to believe that you were responsible for inflicting these fatal injuries.
In his plea on your behalf, your counsel, Mr Montgomery, urged me to adopt a number of the findings of Justice Cummins, who sentenced you on 21 December 2004 when you were previously convicted of this offence. I agree with His Honour's view, expressed in his reasons for sentence, that the initial situation that night was not of your creation. I also agree that what occurred was spontaneous in the sense that it was not pre-planned or premeditated. It occurred in the heat of the moment, when you were angry and stressed by the preceding events.
I have already indicated my view as to the possible motivation which caused you to leave the security of the house and confront Mr Hanley rather than ring the police.
Given the speed at which events in the front yard unfolded, and given the probable effect of alcohol on your perception and judgment, I am not prepared to conclude that the jury must have found that you intended to kill Mr Hanley, rather than cause him really serious bodily injury. That of course is sufficient murderous intent.
The crime of murder is the most serious offence encountered with any regularity in these courts. The courts, by the sentences they impose, must uphold the sanctity of human life. Such sentences must also reflect the denunciation of the court of the commission of this type of offence. Further, the element of general deterrence must loom large in any sentence imposed.
In particular there is a need to deter people from using weapons such as knives as a problem solving technique. However, like all offences, the circumstances surrounding the crime of murder and the individual who commits it, will vary from case to case. In this regard there are matters personal to you which I must take into account in imposing the sentence.
However, before I refer to them, I want to say something about Nathan Hanley. Nathan Hanley was just 27 years old at the date of his tragic and untimely death. He was a loving and popular member of a close-knit family. He was a loving father to his child, Dakota. Although Nathan had some problems, he was endeavouring to address them. He was anxious to effect a reconciliation with Kimberley Terlich. I have read the Victim Impact Statements provided by Nathan's mother, Jillian Wood, on behalf of her former husband, Dennis and her children; and the statements of Nathan's brother and sister, Bradley and Sheridan; of Bradley's partner, Brooke Terlich and of Kimberley Terlich. I agree with the comments of Justice Cummins that these are moving and impressive documents. Jillian Wood describes the traumatic effect of Nathan's death on all the family members. In her own case she vividly remembers the hours of helpless waiting prior to Nathan's death, at which time a part of her also died. Ms Wood was helping her son confront his problems. In turn, while he was living with her at Wahgunyah, Nathan was providing great assistance in household management.
Bradley Hanley has had to cope with the loss of a person he described as his best mate and with whom he used to go camping, hunting and fishing. Nathan's sister, Sheridan, was also very close to her brother. In fact he lived with her, on and off, for a number of years. She writes of the mutual adoration of Nathan for her children and they for him. She describes Nathan's relationship with her husband, Colin, as being like that of a brother.
Brooke Terlich, Bradley's partner, not only speaks of the devastating effect that the loss of Nathan had upon Bradley, but also the effect on her children of the loss of their Uncle Nathan. This is particularly so for her eldest son, Casey, who idolised him.
Kimberley Terlich has found it extremely difficult to cope with the loss of a man she described as a soul mate, lover and the father of her child and someone who was very much the source of her hopes and dreams.
It is quite obvious to me that those closely associated with Nathan Hanley, will never fully recover from his death.
Peter Schaeffer, you are currently 36 years old, having been born in April 1970. You were aged 33 at the time of this offence. You are the youngest of six children. Your father, who was a mechanical engineer, gave evidence before me. He, like your brothers and sisters, remain loyal and supportive of you.
Your father informed the Court of your essentially trouble-free childhood and good work ethic. Mr Schaeffer senior also spoke of your very great assistance to your mother when she was the subject of home palliative care for a period of eight months when suffering from a brain tumour. Your mother died in January 2003, and I accept that you were devoted to her and devastated by her death.
You grew up in the western suburbs of Melbourne and you were educated at St Albans Primary School and Kealba High School. You were a very average student and left school at Form 3, or Year 9 level. You then worked for a number of years in abattoirs in Melbourne. Thereafter, you were employed in the fly screen industry and after following your father to Wodonga, where he had taken up residence upon his retirement, you again worked in the local abattoirs. Your employment role in these various occupations was that of labourer.
You married Anne Jones in Melbourne and there were three children from that union who are now aged 16, 11 and 8. Although you and your wife have since separated you remain devoted to the children who have had regular contact with you during your incarceration at Barwon Prison.
You have two prior convictions for exceeding .05, the last of which was in June 2002, which suggests that you may have had a problem with alcohol. You have one previous conviction for violence, namely assault by kicking, which occurred in May 1994 when you were aged 24. According to the plea that was presented on the previous occasion, this involved a fight with a local trouble-maker who had parked his car over your driveway and refused to move it when requested. The nature of the offence may be reflected in the fact that the penalty imposed was a fine. In all the circumstances it cannot be said that you have a record of, or propensity for, violence.
In his reasons for sentence Justice Cummins, taking into account your work record, your devotion to your children, your close and supportive family and your relatively insignificant prior offences, found that your prospects of rehabilitation were excellent. Additionally, I am informed that in the period of time you have been in prison you have undertaken fitness courses, and perhaps more importantly, you have become a prison gardener. This is to your credit. Overall I am inclined to agree with Justice Cummins' assessment.
Moreover, given the circumstances surrounding this killing, it is not inappropriate, in my view, that it attract a sentence towards the lower end of the range for such offences. So much was fairly conceded by Mr Gyorffy on behalf of the Crown.
On the prior occasion that you faced the court for sentencing, the penalty imposed by Justice Cummins was imprisonment for 16 years with a non parole period of 12 years. Your counsel Mr Montgomery, has urged me not to increase that sentence. Both counsel drew my attention to several authorities, which state, in effect, that the judge sentencing in a re-trial may, if the circumstances in his judgment warrant it, increase the sentence originally imposed. However, strong grounds would need to exist to justify any such increase. It is not suggested by the Crown that in the present case there is any basis disclosed for increasing the original sentence imposed. Accordingly, I do not propose to do so.[1]
[1]See for example R v Chen [1993] 2 VR 139 and RH McL. v R (2000) 203 CLR 452.
In reaching that conclusion I have been conscious of the need to have regard to the principles enunciated in the Sentencing Act 1991, including punishment, general and specific deterrence and rehabilitation.
I sentence you, Mr Schaeffer, to the same period of imprisonment imposed by Justice Cummins, namely 16 years, with a non-parole period of 12 years. Further, I declare that the period already served under this sentence is 1,225 days, inclusive of today's date. I order that such declaration be noted in the records of the Court.
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