R v Watson
[2009] VSC 403
•23 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1440 of 2008
| THE QUEEN |
| v |
| JODIE ANNE WATSON |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2009 | |
DATE OF SENTENCE: | 23 September 2009 | |
CASE MAY BE CITED AS: | R v Watson | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 403 | |
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CRIMINAL LAW – Murder – Sentence – Guilty plea on basis of extended common purpose – Admissions – Prospects for rehabilitation – Lesser culpability than principal offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson | Solicitor for Public Prosecutions |
| For the Accused | Mr D Dann | Pica Criminal Lawyers |
HIS HONOUR:
Jodie Anne Watson, you have pleaded guilty to the murder of Stephen John Witham at Mirboo East on 13 August 2006.
In July 2008, one of your co-offenders, Michael Patrick Flaherty, also pleaded guilty to the murder of Mr Witham. Mr Flaherty was then your boyfriend. At the time of the offence, Flaherty had been living at Flat 2/30 Van Der Haar Avenue, Berwick. You stayed at those premises from time to time with your seven year old son, Brock. Approximately two months before the offence, Flaherty met with Witham, and invited him to stay at the flat at Van Der Haar Avenue.
Shortly after Mr Witham moved into the unit, the relationship between him and the other occupants of the flat, including Flaherty and yourself, began to sour. Witham was drinking heavily and he became aggressive and, on occasions, violent when doing so. He began to take over the occupation of the flat, and was standing over the other occupants of it, threatening to harm them. On one occasion, he had a fist fight with Flaherty at the premises. On another occasion, at about the beginning of August 2006, Witham assaulted you by striking you to the face, and then proceeded to threaten your son. A struggle ensued between yourself and Witham, in the course of which Witham continued to threaten you. Following that incident, you attended at the Narre Warren Police Station to make a complaint about Witham residing at the address, but the police could not intervene, because you did not own it.
Ultimately, Flaherty requested Witham to leave the flat, but he declined to do so. Five days before his death, a further altercation occurred between Flaherty and Witham. Flaherty contacted the Narre Warren Police, requesting their assistance to evict Witham from the flat. However, when the police attended, they were advised that they were no longer required, and accordingly they took no action.
Following that incident, you never went back to the flat yourself. Flaherty only returned to the unit on one occasion, and then he also left it.
By Saturday 12 August 2006, Flaherty, and another person, Clinton McRae, had devised a plan to kill Witham, so that he could no longer cause you or Flaherty any further trouble. On that day, Flaherty requested you to drive McRae and him to the unit at Van Der Haar Avenue, in order that Witham would be assaulted and incapacitated, and thus removed from the unit. Flaherty did not specifically discuss with you his plan to kill Witham.
As the deceased was a man of large and strong build, it was decided to enlist the assistance of other associates, in order to overpower and subdue him. For that purpose, you contacted an associate, Michelle Churchill, and asked her to recruit some large males to assist in an initial assault upon Witham, and to assist in having him placed in the boot of your car. Churchill agreed to carry out your request.
Shortly after midnight on the following day, 13 August 2006, Flaherty, McRae and you drove to the unit in your vehicle. Michelle Churchill attended with two other colleagues, Adrian McGillivray and Darren Whittaker. Churchill and you went into the kitchen area. In the meantime, Flaherty, McRae, McGillivray and Whittaker entered Witham’s bedroom where he was asleep. They assaulted and incapacitated Witham. His hands and arms were tied, and he was bound up in a doona. Churchill, McGillivray and Whittaker then left the premises, not knowing that Flaherty and McRae intended to murder Witham. By then, Witham was in severe pain as a result of the assault. Flaherty carried him to your vehicle, and placed him in the boot.
You then drove your vehicle from that address, accompanied by Flaherty and McRae. You drove several hours to the area of Turton’s Creek. During the trip telephone contact was made with an associate of McRae’s called Adrian Connally. McRae asked Connally whether your group could attend Connally’s property to go shooting, and sought his directions to the property. At one point during the trip to Turton’s Creek, Witham tried to extract himself from the boot of the vehicle. You responded by slamming on the brakes of your vehicle, so that Witham would fall back into the boot. He made a further attempt to escape on foot, but Flaherty recaptured him and returned him to the boot of the car.
When you arrived at Connally’s property at Turton’s Creek, you drove the vehicle to a shed at the rear of the property. Connally greeted your group, in the belief that it was intending to go shooting. Flaherty requested a shotgun, and Connally returned to the house to retrieve it. At that stage, Connally led you inside the house, and introduced you to his partner. You then remained inside the house.
By the time Connally returned to the shed, the doona, containing Witham, had been placed in the rear of Connally’s four wheel drive Landcruiser. At Flaherty’s behest, Connally drove the vehicle, accompanied by Flaherty and McRae. After 15 to 20 minutes, Connally was directed by Flaherty to stop the vehicle. Connally walked away from the area, leaving McRae and Flaherty alone with Witham. Flaherty removed Witham from the vehicle, and, after sharing a last beer with him, pushed him down a slope, and shot him to the back of the head with the shotgun, thereby killing him. Connally, Flaherty and McRae then returned to the house, where they burnt the doona in Connally’s incinerator.
In the meantime, you had been left in Connally’s house with Connally’s girlfriend. During the absence of Flaherty and McRae, you had fallen asleep. After they returned to the house, you were awoken. You returned to your vehicle, and drove Flaherty and McRae back to Berwick. Later the same day, Flaherty and you cleaned the boot of the vehicle with soapy water and petrol to remove blood stains, which had been left there as a result of Witham’s injuries.
After his death, Mr Witham’s daughter and former partner became concerned by their lack of contact with him. Ultimately, in April 2007 a person attended at the Frankston Police Station to report the murder of a man named “Steve”. An investigation was conducted by the Homicide Squad over several months. A listening device was placed in a house in Pakenham then occupied by Flaherty. You used to visit Flaherty at that address and would stay there overnight. On 4 November 2007, Flaherty and you were overheard discussing Witham’s death with another person called Gary. You described the trip to Turton’s Creek, and said that the deceased had been rolling around in the boot of your car. You described how Witham tried to get out of the boot at one stage, which caused you to slam on the brakes of your car, so that he would fall back into the boot.
Accordingly, on 8 November 2007 Homicide Squad investigators arrested Flaherty and yourself. During a record of interview with police, you made admissions to providing assistance in relation to the murder of Witham. In particular, you admitted recruiting Churchill to assist in the initial assault of the deceased. You also admitted to driving your vehicle north with the deceased bound in the boot. You stated that you had been part of a plan to take him away in the boot, because of what Witham had done to Flaherty and you.
It is common ground that you have pleaded guilty on the basis that although you had not specifically discussed, or agreed to, the plan to kill Witham, you were aware, and foresaw, that it was possible that, in carrying out the plan to remove Witham from your unit and from your lives, Flaherty and McRae might intentionally kill Witham or cause him really serious injury. In technical terms, you have thus pleaded guilty to the crime of murder on the basis of the principle of “extended common purpose”, and you are to be sentenced on that basis.
It is appropriate that I make some specific findings concerning the circumstances and extent of your participation in the murder of Witham. As I have stated, you first become involved in the events, which led to the death of Mr Witham, on the previous day, that is, 12 August. I accept that on that day you did not know, or realise, that Witham might be murdered by Flaherty. I also accept that, on 12 August, when Flaherty first discussed with you his plan to remove Witham from the unit by forcibly overcoming him and driving him to another location, you initially refused to participate. Flaherty responded by berating you in strong terms, and you gave in. I interpolate that there is evidence that, in your relationship with him, Flaherty was the dominant partner, and that on occasions he was quite aggressive towards you.
In the course of sentencing submissions, there was some debate as to the precise stage at which you first became aware of the possibility that Witham might be killed in the course of the removal of him from Flaherty’s unit. Mr Gibson, the Crown prosecutor, submitted that I should conclude that you foresaw that possibility when you saw Witham, trussed up and in pain, being placed forcibly in the boot of your vehicle, covered by a doona. On the other hand, your counsel, Mr Dann, contended that you first realised that Witham might be murdered, while you were driving your vehicle to Turton’s Creek. The difference between the two views is, in the final analysis, of only minor moment. On either view, you had ample opportunity to withdraw from participation in the plan to dispose of Witham, by refusing to drive further, and returning to Melbourne. Indeed, had you done so, you would probably have brought Flaherty’s plans to an end. While, as I have stated, the issue is not of major consequence, I am satisfied beyond reasonable doubt that you foresaw the possibility that Witham might be killed, when you observed him incapacitated and in substantial pain, being placed into the boot of your vehicle. In my view, the only reasonable inference, which could be drawn, from the observations made by you of Witham in that state, was that it was then that you realised that Flaherty’s plan to dispose of Witham might involve his death. That view is, in my view, supported by the tenor and contents of the intercepted discussion between yourself, Flaherty and Gary Ross on 4 November 2007.
Your role in driving the vehicle, with Witham in the boot, to Turton’s Creek, was not entirely a passive role. On two occasions, you have described assisting to prevent the escape of Witham from the vehicle, once by slamming the brakes on so he would fall back into the boot, and on another occasion by stopping so that Flaherty could recover Witham and return him to the boot. On any view, you carried out both those acts foreseeing that, in the course of his plan to get rid of Witham, Flaherty might kill him, or cause him really serious injury.
As I stated, it is on the basis of that foresight or knowledge that you have pleaded guilty to, and properly acknowledged your criminal responsibility for, the murder of Stephen Witham in August 2006. The crime of murder is the most serious offence in our legal system. It involves the intentional taking of the life of another human being. By your participation in Flaherty’s plan, you were criminally responsible for his murder. As I shall discuss later in these remarks, I accept that your role was substantially less serious than Flaherty’s. Nevertheless, at the outset your role included you recruiting others to attack Witham in what should have been the safety of his own place of abode. Further, you participated in the removal of Witham from that place, when he was defenceless and in pain. Your conduct in driving the vehicle, with Witham tied up in the boot, is reprehensible. As you were well aware, he was in pain. Further, as you would no doubt have been well aware, he would have had, at the least, grave fear for what was to ensue. You would no doubt have then appreciated that he was being subjected to what could only have been a terrifying ordeal. While your role came to an end when you arrived at Connally’s residence in Turton’s Creek, it was there that you left Witham, defenceless and at the mercy of Flaherty, with the knowledge that Flaherty might then proceed to kill him or cause him really serious injury. You did not participate at all in the dreadful events of the next twenty minutes or so which culminated in Witham’s death. Thus, you cannot be held directly responsible for the callous, cruel and cowardly way in which Flaherty disposed of Witham. On the other hand, when you arrived at Turton’s Creek, you did know that you were leaving a defenceless man to a possible fate not dissimilar to that which eventuated.
Those, then, are the more serious features of your offending in this case, and of the circumstances in which you came to be criminally involved in the intentional taking of the life of another human being. By your crime, you have been responsible for the loss of Mr Witham’s life. The victim impact statements of Mr Witham’s partner, his daughter, his sister and his niece describe, in tragic terms, the grief and continuing distress occasioned by the murder of Mr Witham, and by the dreadful circumstances in which it occurred. While Mr Witham was the most immediate victim of the crime, his loved ones and his family are also properly regarded as victims of it. The ongoing suffering of Mr Witham’s children, partner, sister and niece are an inevitable consequence of your crime. The victim impact statements, which were tendered on your plea, are an appropriate reminder of the full impact of his murder, in which you were complicit.
As I stated, there are a number of other factors which are also relevant to a proper assessment of the degree of your culpability. First, of course, you did not specifically discuss, or agree to, the plan of Flaherty and McRae to kill Witham. Rather, your complicity in the murder arose from your awareness that it was possible that, in carrying out the plan to remove Witham from your unit and from your lives, Flaherty and McRae might intentionally kill Witham or cause him really serious injury. Secondly, I accept that initially you were reluctant to participate in the part of the plan of which you were at first aware, namely, the plan to forcibly remove Witham from Flaherty’s unit. Thirdly, I accept that on the night of the offence, you were substantially affected by the ingestion of drugs. As Mr Dann correctly acknowledged, that circumstance provides no legitimate excuse for your criminal actions. However, it is clear that, during the evening in question, you were substantially affected by drugs. Your statement, in the record of interview, to that effect, is supported by the independent evidence of Mr Connally, and of his partner, Ms Kirk. I accept therefore that your better judgment, and your capacity to detach yourself from Flaherty’s plans, were, to some degree, compromised by your drug affected state. That factor is relevant to a proper assessment of your subjective culpability.
I turn then to matters pertaining to your background.
You are 40 years of age, having been born in Warragul in October 1968. You come from a good family, and both your parents were in regular employment. Your younger sister is married, with six children.
You were raised in the Cranbourne area. Subject to one matter, you enjoyed a normal and healthy childhood, completing school at Year 9 level. During your younger years, you were active in sport and other outdoor recreations, and have indeed maintained an interest in water skiing. It does appear that, in more recent years, you have revealed that, when you were a small child, you were subjected to abuse by an uncle. It is unclear to what extent that incident has had an effect on your life. However, the reference of your mother, who appears to have a strong insight into your personality, and the report of Ms Lawson, the West CASA Counsellor, each indicate that, understandably, that experience may well have had an adverse impact on your personality, and played some role in how you have lived your life since leaving school.
Initially after you left school, you did well. You had three stints of employment, each of about 12 months, in Clayton, in Mulgrave, and in Moorabbin. However, at about the age of 17 years, you became involved in a relationship with a young man. You moved in with his family. Your partner was a drug user, and you began to experiment with illicit drugs. You soon graduated from marijuana to amphetamines, and then to heroin. Between the ages of 20 and 30 years, you were a significant drug user. You attached yourself to a lifestyle which was typical of others who become addicted to drugs. You were essentially nomadic, and only had intermittent periods of employment. For a person of your background, and abilities, that decade of your life could be aptly described as wasted years.
You then met, and formed a relationship, with a young man called Paul Spry. He was working at a warehouse, and you were both keen water skiers. You had a relationship with Mr Spry for a period of three years, during which you fell pregnant. While you were pregnant, you tried to cease your drug habit. Your son Brock was born in August 1999. After his birth, your life changed, substantially for the better. You obtained part time work at a rose farm in Officer. You ceased using drugs, and were medicated with Suboxone. You also had casual employment at the Dandenong Market for about two years. At that time, it would appear that your life was more settled, and you were enjoying your role as mother to Brock.
However, about four years before Mr Witham’s death, you met, and formed a relationship with, Michael Flaherty. Flaherty was also a heavy drug user. You became enamoured of Flaherty, and your relationship with him marked the return by you to drug use. Although you continued to do your best to look after your son Brock, your lifestyle rapidly went downhill. Your relationship with Michael Flaherty was a difficult one. The two of you only lived together for a short time, but, after you moved out of his unit, you continued to spend a substantial amount of your time with him.
It was in the context of your relationship with Flaherty that you met Mr Witham. I accept that you only became involved in the plan to remove Witham from Flaherty’s unit, because of his physical violence to both yourself and to Flaherty, and particularly because of the threats which Witham made about your son Brock.
After the death of Mr Witham, your lifestyle continued to deteriorate. Flaherty and you continued to be involved in the use of drugs. You did manage to secure some employment. On your plea, a testimonial was tendered on behalf of Barry Bourke, Warragul, with whom you worked between February 2007 and November 2007.
Ultimately, as I stated, you were arrested in relation to Mr Witham’s murder on 8 November 2007, and you have been in custody since. It appears that you have done particularly well during your period of incarceration. The results of random drug testing carried out on you reveal that, except on your entry to imprisonment, you have otherwise been drug free during the period of 22 months since your arrest. You have undertaken a number of programs and courses, designed to address your drug problems, and also to provide you with skills, particularly in the area of hospitality and cooking. You regularly see your son Brock, who is cared for by his father. You have also undergone counselling with Ms Lawson of West CASA, who reports that you are continuing to develop insight, and to understand how your experiences as a child have impacted on your life. The report of Ms Lawson, the character testimonials, and the report of Mr Jeffrey Cummins, clinical psychologist, who saw you on 12 August, all satisfy me that your prospects for rehabilitation are favourable. You are to be commended for the positive steps you have taken since your imprisonment, and it is to your credit that you have so far done so well.
Your background is, I consider, particularly relevant in determining the sentence to be imposed upon you. It provides an explanation as to the circumstances in which you became involved in the offence. Further, as you demonstrated after the birth of Brock, and as you are now demonstrating in jail, you do have the capacity to remove yourself from the illegal use of drugs, and to live a useful life. As I stated, I regard your prospects for rehabilitation as being good. On your plea, I received a large amount of character testimonials from your mother, sister, uncle and a number of friends. You have strong support from family and friends, all of whom hold you in high regard. The testimonials speak of you as being a gentle and good person, and I am satisfied that the type of offending, in which you became involved, was out of character for you. You have three minor previous convictions which are, in my view, irrelevant for these proceedings. Your lack of any serious previous convictions reinforces the impression, which I have from the character references, namely, that your offending in this case was out of character.
There is no suggestion that you displayed any remorse for the murder of Mr Witham before your arrest. Indeed, the tenor and contents of the intercepted discussion of 4 November 2007 are to the contrary. However, it is to your credit that, in the course of your interview with the police, you made full and frank admissions as to your role in the murder of Mr Witham. You pleaded guilty to the murder of Witham on 20 July this year. Your plea of guilty, and your signification of that plea to the Crown, was substantially later than what occurred in the case of Flaherty. However, Flaherty’s admitted role was such that he was clearly, and indisputably, guilty of murder. On the other hand, I accept that the position was not so straightforward in your case. For a period after the committal proceedings, you did not have legal representation. Ultimately, after appropriate discussions between the Crown and your solicitors, there was identified the correct basis upon which you should plead guilty. Thus, while, as a matter of timing, you did not plead guilty at an early stage, I do accept that, when the appropriate basis of your criminal liability was identified, you accepted it. In that sense, I accept that your plea of guilty was, in relative terms, made at an appropriate time.
Your guilty plea is an important mitigating circumstance. It has saved Mr Witham’s family and loved ones the trauma of a criminal trial, and spared the community the expense of such a trial. It is also, I consider, an important step in your recognition and acceptance of your wrongdoing, and thus constitutes a positive step in your rehabilitation.
Counsel presented to me some arguments as to how I should compare your offending to that of Flaherty. In July 2008, I sentenced Flaherty to 21 years’ imprisonment, and I fixed a period of 16 years during which he would not be eligible for parole. It is common ground that your role in the murder of Mr Witham was not as serious as that of Flaherty. First, as I stated, you were not a party to the specific plan, formulated between Flaherty and McRae, to murder Witham. Secondly, you did not at any stage form the specific intention to kill Witham or to cause him really serious injury. Thirdly, I accept that you were initially reluctant to participate in your assigned role as driver to Turton’s Creek, and that you only agreed when Flaherty pressured you to do so. Fourthly, of course, your physical role in the murder of Witham ceased when you arrived at Turton’s Creek. While the elements of your involvement, which I have earlier described, make your offending particularly serious, I do accept the submission by Mr Dann that there are substantial differences between your case and Mr Flaherty’s, which should be appropriately reflected in a lesser sentence to be imposed on you than on Flaherty.
In determining your sentence, it is important to ensure that it is appropriate to properly express the community’s and the Court’s condemnation of your criminal conduct, and to vindicate the sanctity of human life in our society. Further, it is necessary that the sentence be sufficiently severe to constitute an appropriate deterrent to others, who might be like minded to indulge in the type of conduct in which you participated in the course of the murder of Mr Witham. Finally, the sentence must be sufficiently stern as to constitute a specific deterrent to you.
On the other hand, I accept the proposition advanced by Mr Dann that, in your case, it is appropriate to structure your sentence so as to allow for a potential parole period which is a little longer than usual. As I have already stated, I consider that your prospects for rehabilitation are good. It is not only in your interest, but is also very much in the community’s interest, that, on your release from prison, you remain subject to appropriate supervision for a reasonably substantial period of time. Your past history indicates that such a period of supervision may well play a positive role in avoiding you re-offending again.
Bearing all those matters in mind, I sentence you as follows. I sentence you to 16 years’ imprisonment. I fix a period of 11 years during which you are not eligible to be released on parole. I declare, pursuant to s 18(4) of the Sentencing Act, the period of 675 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the Court.
As I have stated, I have taken into account your plea of guilt, as a mitigating circumstance. I am bound, by s 6AAA of the Sentencing Act, to state the sentence which I would have imposed on you, if you had not pleaded guilty. That is a difficult task, because of the interrelationship of your plea of guilt with issues such as your admissions, and your rehabilitation. However, doing the best I can, if you had not pleaded guilty, I would have imposed a sentence of 18 years’ imprisonment, with a minimum non-parole period of 13 years.
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