R v Weaven
[2011] VSC 508
•12 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2010 0169
| THE QUEEN |
| v |
| GLENN MATTHEW WEAVEN |
JUDGE: | WEINBERG JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 27 & 28 July, 2-5, 8-12 & 15-18 August 2011 | |
DATE OF PLEA: | 5 October 2011 | |
DATE OF SENTENCE: | 12 October 2011 | |
CASE MAY BE CITED AS: | R v Weaven | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 508 | |
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CRIMINAL LAW – Sentence – Murder – Female victim stabbed in neck – Body burnt to conceal offending – Whether aggravating factor –– Weight to be given to evidence of prior good character in light of offender being willing participant in criminality as part of ‘scenario’ operation – Combination of physical and mental ailments – Consequences of imprisonment more burdensome for offender – Sentence 20 years’ imprisonment – Non-parole period of 16 years fixed
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC with Mr B L Sonnett (trial) | Mr C Hyland, Solicitor for Public Prosecutions |
| Mr G J C Silbert SC with Mr B L Sonnett (plea) | ||
| For the Accused | Mr G F Meredith with Mr N Goodenough | Leanne Warren & Associates |
HIS HONOUR:
Glenn Matthew Weaven. After a trial lasting some three weeks, you were found guilty of the murder of Mary Lou Cook at Narre Warren on 14 December 2008.
The circumstances surrounding the commission of that offence may be briefly stated.
On Sunday 14 December 2008, shortly before 1:00 a.m, Ms Cook was stabbed to death at her home in Darling Way, Narre Warren. The premises were subsequently set on fire. You had had a longstanding relationship with the deceased. Within a few days, you were suspected by police of having been involved in her murder.
On 18 December 2008, you willingly participated in an interview with Sergeant Ronald Iddles of the Homicide Squad. You denied any involvement in the murder. You claimed to have been at your parents’ home, some two kilometres from the scene of the crime, at the relevant time. Sergeant Iddles considered that, although you were a suspect, there was insufficient evidence to charge you with murder at that stage.
The investigation continued for some months. Eventually, in July 2009, the police began a covert operation, using what is colloquially termed a ‘scenario’ method of investigation. Between July and September 2009, you met with undercover police on a number of occasions. Throughout that period, you took part in some 17 different ‘scenarios’, a number of them involving what you were led to believe was criminal activity. Your belief was that you were participating in the activities of an organised criminal gang, and that you were being groomed for possible membership of that gang. You were paid various amounts of money for your assistance in these ‘criminal’ activities, and were led to believe that there was opportunity to earn a great deal more.
On 18 September 2009, you met a man whom you knew as ‘Gary’ (in fact, an undercover police operative) in a room at Crown Towers Hotel. You believed that Gary was the ‘Mr Big’ of the organisation. Gary told you that you were on the verge of being accepted as a member of the gang, but that there was a problem. Gary said that he understood that you were a suspect in relation to Ms Cook’s murder, and that you had been informed that the police investigation into that matter was continuing.
Gary said that he could ‘fix’ the problem, but only if you told him the entire truth about your involvement in Ms Cook’s death. He made it plain to you that your membership of the gang was dependent upon you being completely truthful with him about that matter.
You then made a series of incriminating admissions, the details of which I need summarise only briefly. You first implied that Ms Cook had been killed by her elder daughter Kayla, and claimed that your only involvement in her murder had been as an accessory to that crime. Essentially, you implied that you had had something to do with the disposal of the weapon. You said that, although the police were looking for a screwdriver, you thought the weapon was a steak knife with a broken blade, which Kayla had with her at some time in the days following Ms Cook’s death.
Gary made it plain that he did not believe this account, and urged you to be truthful.
You then gave a second version of what happened on the night in question. This involved an elaborate and obviously spurious story. You now said that you had attended Ms Cook’s home on the Saturday night, having arranged at an earlier stage to meet a man known as ‘Sean’ there. Sean was said to be a drug dealer. Sean’s purpose in attending that night was to supply Ms Cook with drugs, and to obtain payment in relation to that sale. You described yourself as the ‘middle man’ in relation to that transaction.
According to this second version, it was Sean who had stabbed Ms Cook. He had used a steak knife. A piece of the blade of the knife that Sean had used had broken off when Sean had ‘pushed it in’. You now said that after you saw what Sean had done you had panicked, and that you had ‘finished it off’. You said that you picked up a screwdriver and stabbed the deceased in the stomach with it. You said that you had then set fire to the mattress upon which the deceased was lying. You told Gary that you had subsequently disposed of the knife (including the broken piece) and the screwdriver. You said the you had buried the knife a foot under the soil, and thrown the screwdriver into a drain overgrown with weeds.
You said that after you left Ms Cook’s house on the night in question, you went to the home of your friend ‘Dave’. You said that Sean was staying with Dave at the time.
According to this second version, you had, shortly after the murder of the deceased, arranged for Dave to kill Sean. You said that you asked Dave to do this as a favour, and claimed that you had not given Dave any explanation as to why Sean needed to be killed. You said that Dave had taken Sean deer hunting, and had shot him with a 303 rifle. You told Gary that Dave had then put Sean’s body through a meat mincer and that he had fed the body parts to his dogs.
Once again, Gary made it clear that he did not accept this version, describing it as ‘fantasy land’. That was hardly surprising. On two occasions, while recounting the story, you mistakenly referred to Sean as ‘Stewart’.
Gary told you that if you wanted to join the ‘gang’, you would have to be completely honest, and stop telling lies. He arranged for you to go off and have a discussion with several other members of the ‘gang’ whom you trusted (and who were, in fact, and unbeknown to you, undercover operatives). After a while, you returned to Gary’s room and gave a third version of your actions on the night in question.
The third version may be described as the ‘scenario confession’. Basically, it consisted of a repetition of the second version, without the introduction of either Sean or Dave (neither of whom, you now admitted, had had any involvement in the death of Ms Cook).
You now told Gary that on the night of Ms Cook’s murder, you had gone to her home in order to have a smoke with her. You said that you had walked the two kilometres from your parents’ home to her house. You said that after you arrived, a dispute had broken out. It arose out of Ms Cook having failed to pay for drugs that had been supplied to her by a third party, in circumstances where you had assured that person that Ms Cook’s credit was good. Put simply, you told Gary that you had grabbed a steak knife from the kitchen and, while she was in the lounge room, stabbed Ms Cook in the neck ‘for no reason’. You told Gary that, in the course of the stabbing, the knife had broken.
You went on to say that after you had stabbed Ms Cook, you panicked. You agreed with Gary’s suggestion that you had ‘just wanted to finish it’. You said that you had picked up a screwdriver that had been in the lounge room and stabbed Ms Cook in the stomach. You had then set fire to the mattress on which she lay in order to conceal, as best you could, what you had done.
You then repeated what you had earlier told Gary, namely that you had disposed of the steak knife (including the broken piece) by burying it in the ground (this time, you said it was buried a foot to a foot and a half deep), at a location that you could specifically recall. You said that you had tossed the screwdriver into a drain and that it might be difficult to locate.
Gary then questioned you in some detail about your movements before and after the killing. You told Gary that you had been wearing an orange top on the night in question. You said that you had burnt the shoes and clothing that you had been wearing, save for the orange top. You said that the top had been washed repeatedly since.
Gary then arranged for you to accompany several other members of the ‘gang’ to the locations where you had said that the knife had been buried, and the screwdriver thrown. You did so. However, it was getting dark at that stage, and no search of the area could be carried out. All that occurred was that the locations that you identified were marked.
Later that evening, you were arrested in the vicinity of Crown Towers Hotel, and then formally interviewed. You denied any involvement in Ms Cook’s death, and claimed that you had been at your parents’ home at the time she was killed. You were then charged with murder.
On the following morning, police carried out a thorough search of both locations identified by you the previous day. They found a steak knife embedded in the earth, at almost exactly the spot you had indicated you had disposed of it. The blade of the knife was intact, but a piece of the handle was missing. No screwdriver was located.
The pathologist’s evidence at trial was that Ms Cook was stabbed once in the neck. The wound penetrated downwards into her lung, and would have been fatal within a very short period of time. There was no evidence of any stab wound to the stomach of the kind that you described to Gary. However, very little of her stomach area survived the fire, and no conclusion could be drawn from the absence of any such wound.
There was a small amount of soot in the lung which suggested that Ms Cook may have survived the stabbing for a few moments.
Your counsel submitted on the plea that your offending should be characterised as midway on the spectrum of gravity for the crime of murder. The Crown submitted that it should be viewed more seriously than that, and argued that, at the very least, it fell within the higher bracket of the mid-range for that offence.
Whatever conclusion one might arrive at in relation to questions of that kind, your offending was, on any view, a serious example of what is, after all, the most serious offence known to our law. I accept that there is no suggestion that Ms Cook’s murder was pre-meditated. On the basis of your confession to Gary, you appear to have acted on impulse, during the course of a dispute that arose suddenly. Nonetheless, the fact remains that when you stabbed Ms Cook, you intended to kill her, as is evidenced by your own admissions to Gary.
In addition, there is, in my view, an aggravating feature of this case to which I must accord some weight. I refer to the fact that, in an unsuccessful attempt to make it look as though Ms Cook had died accidentally, you set fire to the mattress upon which her body lay after you had stabbed her.
There is authority for the proposition that conduct of that kind can constitute a circumstance of aggravation.[1]
[1]DPP (Vic) v England [1999] 2 VR 258; R v Kellisar [2001] VSCA 224.
I accept your counsel’s submission that there is nothing in the evidence to suggest that you were aware at the time that you lit the fire that Ms Cook might still be alive, (though just barely so). Had you been so aware, your actions in setting fire to her body would have amounted to even more of an aggravating circumstance. I also accept that, in your case, unlike some of the others that deal with disposing of bodies after death, there is nothing to suggest that you intended to defile her body. Your actions were directed at concealment, and nothing more.
Of course, in assessing the gravity of your offending, I must have regard to the nature of your actions, and your motivation for having done what you did. On your own account, you gave way to anger in the course of an argument that arose out of a drug debt that the deceased owed to a third party. That is hardly an explanation, still less any justification, for what was, in the end, an atrocious crime.
Turning to your personal circumstances, you are now 38 years of age. You were raised in a loving and caring family, and you have a close relationship with your father and mother, and with your two brothers and their partners. Prior to your arrest, you were residing at your parents’ house in Narre Warren. You lived separately from your parents between 1998 and 2002 when you lived with your girlfriend at the time, in both Western Australia and Melbourne. You had a daughter, Micayla, who is now aged 10 and a half. You had had unlimited contact with her until her mother was informed that you were a suspect in Ms Cook’s murder. You have had no contact with Micayla since. You feel the loss of contact with Micayla very deeply. Your parents and older brother frequently visit you in prison, as did your younger brother before he moved interstate.
Your schooling appears to have been difficult. You had difficulty with your hearing at a young and formative age, and potentially underachieved at primary school. You were bullied at secondary school. Your parents withdrew you and your siblings from that school, and you continued your schooling at Endeavour Hills Tech which you attended to year 10 level. You completed but did not pass year 11.
After leaving school, you engaged in a truck body building apprenticeship where you were the subject of bullying. This included sexual abuse and on one occasion being burned with hot welding rods. You then attended Doveton Tech for approximately six months, before obtaining employment with your father in the roller door industry. You worked in that job for eight and a half years, which included the completion of a four year traineeship. When you relocated to Perth you undertook roller door installation work for 18 months. You continued in that line of work after your return to Melbourne. You later worked as a sheet metal worker until 2009, when you injured your wrist at work. You commenced light duties upon your return but, after being harassed by your employer, lasted only one day. You were arrested three weeks later.
Although you admitted several prior convictions, none of them are in any way relevant for present purposes.
There was an impressive body of character evidence placed before me on the plea. In general terms, those who provided these references all spoke of your kind and generous nature, your love for your young daughter, the support you receive from your family, and your non-violent and gentle disposition. Without exception, they all say that your actions on the night in question were entirely out of character.
This evidence of good character is, of course, to be given due weight. It suggests that you have good prospects of rehabilitation. It also suggests that specific deterrence need not feature as a dominant sentencing consideration in your case.
On the other hand I must bear in mind that throughout the entire scenario process, you showed yourself to be a willing participant in what you believed to be serious criminality. Your willingness to engage in such criminality detracts somewhat from the weight that might otherwise be accorded to your prior good character.
You did not plead guilty, and you have not acknowledged your guilt. That was, and is, your right. It means, however, that you cannot call in aid remorse as a mitigating factor.
You are, however, entitled to rely upon a body of evidence that was placed before me on your plea concerning your current physical state, and your current mental and emotional condition. I have had regard to reports from Jeffrey Cummins, consulting clinical and forensic psychologist, and Professor Paul Komesaroff, Professor of Medicine.
That evidence establishes that you suffer from a number of physical ailments, as well as various forms of emotional difficulty. From a very early age, your hearing had been significantly impaired. In addition, while working as a welder, you suffered injury to both eyes.
You experience discomfort when you sit because of a complex pilonidal cyst between your buttocks. You have problems with skin rashes which sometime weep and bleed. You have been told that that condition is eczema, but you do not accept that diagnosis. You last saw a dermatologist in July 2010. You have reportedly been waiting months to again see a dermatologist.
In 2009, you fractured the radius bone in your wrist when you fell at work. You suffered further injury to your wrist during the course of your arrest. After carpal tunnel surgery earlier this year, you now have difficulty manipulating your right thumb and two of your fingers on your right hand. Performing simple actions, such as writing your name, causes you significant pain. The range of movement in that hand is greatly diminished. You have numbness and pins and needles across the entire hand (which improved a little after the surgery this year). The clinical condition of your right hand appeared to Professor Komesaroff, at the time of his report in July this year, as being consistent with complex regional pain syndrome Type I. It is unclear from the evidence before me whether this diagnosis was subsequently confirmed.
You have been ‘yeast intolerant’ since age 14. Your symptoms are prevented by avoiding bread, and by using gluten free products. I understand that since being on remand, you have lost approximately 23 kilograms, and now weigh only about 50 kilograms. You now basically eat only salads. You cannot eat the full range of foods that the prison provides to others.
In 2007 you had a basal cell carcinoma excised. You are concerned that other moles on your back may become cancerous. In fact, Mr Cummins reports that you present as being obsessed with what you perceive to be your deteriorating physical health.
Mr Cummins described you in his report as presenting as a ‘depressed and anxious man’. He assessed you as suffering from a major depressive disorder (in relation to Ms Cook’s death and your associated legal position), of moderate severity. You reported to Mr Cummins that you have chronic sleeping difficulties and chronic fatigue. Mr Cummins concludes that he expects your mental health to deteriorate whilst serving any sentence imposed, and recommends that you receive ongoing mental health treatment.
I also note that you have been assaulted within the prison system, and are now held within the protective stream. Your counsel submitted on the plea that this means you have less freedom and less yard time, and are restricted more generally, compared with a mainstream prisoner. I have already noted that you were bullied at school and at work. It seems to me that the prison environment has the potential to give rise to similar difficulties.
The Crown conceded that this combination of physical ailments, and your depressed condition, meant that imprisonment would be more burdensome for you than for an ordinary prisoner. That in turn meant that what is sometimes described as the second limb of Verdins[2] could appropriately be invoked. That concession was, in my view, appropriate. The sentence that I am about to impose will reflect the additionally burdensome nature that imprisonment will have upon you.
[2]R v Verdins (2007) 16 VR 269.
There is little else that can be said by way of mitigation. I accept that given the close bonds that had existed between you and your daughter Micayla, the loss of contact with her has affected you profoundly. I have had careful regard to the support provided to you by your family. They appear to be good and decent people. No doubt this trial, and the jury’s verdict, have weighed greatly upon them.
I have taken into account the two Victim Impact Statements that were tendered before me. They reveal what I would have expected, namely that Ms Cook was loved by her daughter, and regarded by her as a devoted mother. Her death has also had, and will continue to have a profound effect upon other members of her family.
It is now my task to pass sentence upon you. For the murder of Mary Lou Cook, I sentence you to a term of 20 years’ imprisonment. I fix a non-parole period of 16 years.
You have been in custody since 18 September 2009, and I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have already served 754 days in custody, not including today. I direct that the fact that this declaration was made and its details be noted in the records of the court.
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CERTIFICATE
I certify that this and the 10 preceding pages are a true copy of the reasons for Judgment of Justice Weinberg of the Supreme Court of Victoria delivered on 2011.
DATED this twenty fifth day of 2011.
Associate
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