DPP v Makin [2004] VSC 485

Supreme Court of Victoria|2004-11-17|Before: CUMMINS J

Criminal law - sentencing - murder - plea of guilty after conviction at first trial set aside on appeal - at first trial accused gave false evidence - considerations applicable to re-sentencing in that circumstance.

Mr Makin, you have pleaded guilty to the murder, at Preston on 8 March 1998, the Labour Day long weekend, of Mr Brian Freake. Mr Freake was 51 years of age and was in poor health by reason of cancer of the mouth which caused him very substantial personal difficulty. At the time you were 31 years of age, having been born on 1 November 1966. You are now 38 years of age.

The offence was six and a half years ago and the reason that the matter has taken so long to come now to sentence is this. After you had committed the murder, you laid a false trail at the premises of the deceased by making it appear that there had been a ransacking and robbery gone wrong. You then left the scene, went down to the Yarra River at Fairfield, and disposed of the iron bar that you had taken with you to the deceased's premises, the knife that you had obtained at the deceased's premises, and your bloodied shirt by placing them in a bag with a rock and which you then threw into the Yarra River. You and numerous others were interviewed by the Homicide Squad in the weeks thereafter. You denied involvement and the matter remained an unsolved killing.

Then on 30 August 2000, you attended at the Darwin Police Station in circumstances to which I shall come, and reported yourself to the police as having killed Mr Freake. You were then interviewed, first by Darwin police and then by Victorian police, notably Detective Senior Sergeant Collins, the original investigating officer from Melbourne, and were charged with the murder of the deceased, that charge being laid on 1 September 2000.

A committal proceeding in the Melbourne Magistrates' Court was held for two days in March 2001. On 17 July 2001, before Teague J, in this Court, you pleaded not guilty to the charge of murder. A trial was held before Gillard J and a jury, of 12 days' duration in March 2002, and on 20 March 2002, you were found guilty by verdict of the jury. You were sentenced by Gillard J on 26 March 2002 for the murder and the learned sentencing Judge imposed upon you a sentence of 19 years' imprisonment with a minimum term before eligibility for parole of 15 years' imprisonment.

You appealed to the Court of Appeal and ultimately, on 18 May 2004, on grounds which were added two years after the verdict and during the conduct of the appeal, you obtained a re-trial. Then, last month when your re-trial was imminent, you informed your solicitors that you wished to plead guilty to the charge of murder.

That explains the lengthy history of this matter of some six and a half years from the date of the offence until today's sentence.

The crime you committed, Mr Makin, was a terrible crime. Mr Freake was 51 years of age. He was 179 centimetres in height and weighed 58 kilograms. As I have said, he was a sufferer of cancer of the mouth. The victim impact statement of his mother, father and daughter, each made on 21 March 2002, are most moving and impressive documents. I take those victim impact statements centrally into account in imposing sentence upon you.

An autopsy by Dr Shelley Robertson was held on 10 March 1998, she having attended the premises on 9 March and inspected the area where the deceased had been killed by you, noting the splatters of blood on the wall near the deceased's head. The autopsy revealed that the cause of death was incised injuries to the neck. There was no underlying bone injury and no underlying brain injury. There were multiple head injuries involving the face and the scalp, but they were essentially bruising and breaking of the skin by reason of the attack you imposed upon the deceased with your iron bar. The pathologist found that none of those injuries with the iron bar would have contributed directly to death and that the cause of the death was not those, but was the slitting of the neck of the deceased, which incised injuries from the knife involved vital structures including the major blood vessels, the larynx and the oesophagus.

I have viewed the video of the scene, Exhibit B, examined the photographs and read the evidence from the trial before Gillard J in its relevant respects.

You attended the premises of the deceased on the Labour Day weekend during the afternoon, to deal with a requirement by the deceased that you pay him $50 you had owed him for purchase of amphetamines. The deceased was a small-time local drug dealer. It is not apparent from your interviews with the police, to which I shall come, precisely why else, beyond that which I have stated, you attended at the premises of the deceased, but certainly it was partly in relation to his requirement that you pay him the money you owed him. You attended there with an iron bar, which you had carried with you over some period of time previously. You did not take a knife with you to the premises. It is apparent that when you went to the premises you had no intention of killing the deceased by stabbing him in the throat or slitting his throat.

An argument occurred between you and the deceased, and then a fight occurred between you both. You rapidly subdued him and when he was knocked back by you into his chair in the lounge room, being the front room of his premises, you hit him repeatedly around the head with the iron bar up to some 20 times. At that stage, things were grievous; but you should have then left, as you well know. Unfortunately, you then went into Mr Freake's kitchen, obtained a knife which was Mr Freake's kitchen knife, returned and when Mr Freake was unconscious or semi-conscious, you slit his throat thereby killing him.

You later told police in Darwin that you had slit his throat to make sure he was dead, because you realised you had gone too far in your attack upon him with the iron bar. You then, although you did not mention this to the police in Darwin, laid a false trail at the premises by opening drawers, moving the deceased and ensuring you left no fingerprints. You then took the iron bar and the knife and decamped from the scene and, as I say, went down to the Yarra River at Fairfield and put those items in a bag with a rock and threw them into the middle of the river. You then returned home and when you were interviewed shortly thereafter, as many people were about this matter, you denied all knowledge of it and were not charged.

I have listened to the audio tapes of your phone call to the Darwin Police Station when you first rang on 30 August 2000, and I have listened to the audios and viewed all the videos of your interviews at the Darwin Police Station on 30 August, 31 August and 1 September 2000, culminating in your being charged with murder on 1 September 2000. I have also viewed the video of the re-enactment, you having been flown back to Melbourne, of your movements outside Mr Freake's house including the disposing of the knife and bar.

There were some aspects of your statements to the police upon which I consider you were not wholly truthful. However, Mr Makin, I consider that what you said to the police very substantially was true, and further and importantly for purposes of this sentence, I consider that you came forward to the police through a true and genuine sense of remorse and guilt for your actions. You did not come forward to advantage yourself, but you came forward through the proper and good motive of guilt and remorse for what you did. That is apparent from the very first telephone conversation when you were outside the Darwin Police Station on Tuesday 30 August 2000 at 11.49 p.m. and you telephoned the Station. The operator, having answered the phone, said, "What's the problem, sir?" You replied, "I've got a crime I've done." Operator: "What have you done?" Answer: "I murdered somebody." And shortly thereafter you said, "He assaulted me, I assaulted him back. I killed him and I just can't live with the guilt."

Then you were interviewed by local Darwin police officers. At the very commencement of the interview, which was at 24 minutes past midnight on the next morning, Wednesday 31 August 2000, you were asked (D.227): "Can you tell me why you came here, Steve?" Answer: "Full of guilt". You said a little later (D.232): "I've got a lot of guilt. I just want to be fair to youse, I just want to tell youse this, that I done it and I don't want any more ...". You went on (D.233): "I'm sick of wandering through life..... I've killed somebody and want to be punished for it". A little later you said (D.240): "I could be hanging from a tree but I'm here to tell the truth".

I do not consider your flat affect, that is to say your quiet method of describing things in those interviews, shows callousness. On the contrary, I think it shows shame and guilt. Further, it is notable in the interviews that you were slow to reveal that you had cut the throat of the deceased. In the first interview you did not initially refer to it but later did so; in the second interview you did not refer to it and had to be reminded of it; and in the third interview with the Victorian Police you stated it in factual sequence. Again, I do not consider that that slowness in referring to the slitting of the throat was untruthfulness on your behalf. Rather, I consider that recalcitrance indicated shame by you as to the fatal final act you committed. So, Mr Makin, I do consider that in the important respects your interview with police was substantially true and indicated true and genuine remorse in Darwin in 2000.

Unfortunately, the pressure was too much for you to continue to face the seriousness of what you had done and its likely penalty and you fell back on a story of blaming someone else - "Mick", as you called him at the trial. You gave false evidence before the Court in the jury trial in March 2002. That certainly detracts from the benefit of the remorse that you showed in Darwin in August and September 2000.

However, you have now come before the Court and pleaded guilty.

The position thus is, Mr Makin, that there are two very significant acts of remorse by you. First, the voluntarily giving up of yourself in Darwin in August 2000; and now, in November 2004, pleading guilty to the charge. Detracting from that benefit is the false evidence you gave before the jury, but that does not eliminate wholly the benefit of the other two matters I have stated. In particular, what is of significance, and your false evidence does not take away from this, is that it you gave yourself up not because anyone had found you or found proof of your guilt, but from a sense of remorse. That giving yourself up voluntarily and fully from a sense of remorse significantly stands in your favour on sentence, Mr Makin.

At the time of the offence you were 31 years of age. You are now 38 years of age. You had a difficult upbringing which I do not need to rehearse today. You have 11 prior convictions sustained on 5 occasions from July 1986 to October 1993. However none was for serious violence except a set of 5 convictions sustained at the Moe Magistrates' Court on 6 April 1993 including making a threat to kill and making a threat to inflict serious injury. In your interview with the police in Darwin, you explained the circumstance of those offences, which was a very unhappy situation you found yourself in domestically and which was not of your own making. The Court reflected that difficulty you found yourself in by imposing upon you a Community Based Order for 12 months with community work. Unfortunately, on 10 February 1994 you breached the Order and were sentenced to three months' imprisonment on each charge to be served concurrently and which were suspended for 12 months. However, you do not have, Mr Makin, a significant criminal history and you do not have a history of substantial violence.

Dr Walton, an eminent psychiatrist, gave evidence before me and a report of his of 11 November 2004 was tendered which referred to examinations of you of 25 October 2000 and 9 November 2004. Dr Walton found that you were suffering over time from a chronic depressive disorder. He stated (p.4):

"When I first assessed Mr Makin [2000] remorse was striking by its absence but he does now make statements indicative of his regret and expresses some empathy towards the family members of the deceased."

With every respect to the knowledgable Dr Walton, I am far more affirmatively satisfied of your remorse than apparently Dr Walton is, but perhaps that is understandable in view of what you had previously said to him in October 2000.

This is an unusual case, Mr Makin, in that another Judge has previously sentenced you for this offence. The normal principles on re-sentence[1] are that, first, the sentencing Judge, in this case the second sentencing judge, must impose the sentence which he or she thinks is proper in all the circumstances. Second, normally a limitation is placed upon that discretion because the courts say that if the first trial was attended by some legal error which a Court of Appeal later perceives, then the accused should not suffer the double jeopardy of a heavier sentence later. However, in my view, that restrictive consideration does not apply in the present case because the only reason you were granted a re-trial is that the Court of Appeal perceived an error of law in the first trial which error of law was based solely upon your perjured evidence. Accordingly, the benefit does not apply to you of the consequence of the risk of double jeopardy. Next, the ordinary restrictive limitation of delay does not apply to you, again because whilst normally on a re-sentence the Court takes into account the burden on an accused of delay, in this case that burden on you of delay is caused solely by your perjurious evidence in the first instance. So those limitations upon sentence do not apply to you.

However, in re-sentencing there is an overarching principle of consistency of sentences in that it is desirable that sentences are consistent where reasonably that can be achieved.

So, having said all of that, Mr Makin, the conclusion I have reached is that but for your plea of guilty before me, the proper sentence to be imposed upon you for the murder of Mr Freake would be at least 19 years' imprisonment. The question which then that arises is, what reduction should be applied to that sentence, by reason of your plea of guilty?

I do consider your plea of guilty is of real significance. The ordinary benefits reflected in reduced sentence by the saving of persons the trauma of giving evidence and the saving of the administration of justice of having a re-trial are deflected in your case because of your perjured evidence in the first instance. However, a plea of guilty is also significant if it betokens genuine remorse and is not simply a utilitarian accommodation by an accused seeking to obtain a lower sentence. In your case I am fully satisfied that your plea of guilty derives from your sense of remorse and not for some utilitarian gain and that, therefore, stands substantially in your favour. That benefit is strengthened where remorse is also a harbinger of rehabilitation, as I consider it is in your case, Mr Makin.

Further, that benefit of remorse by your plea of guilty is enhanced and increased by your coming forward to the police in Darwin in 2000 and coming forward by reason of your sense of guilt. Gillard J, on the first occasion, as appears at paragraphs 66 and 67 of his reasons for sentence, did take into account the benefit to you of coming forward to the police at Darwin. However, on that occasion, that benefit was not fully able to be given to you by reason of the conduct of the trial. Now, before me, I consider that the benefit to you for coming forward in Darwin can, in its fully emancipated character, be given to you. That is not double counting, as your counsel acknowledged, but rather is giving full emancipation to the longitudinal benefit of guilt and acting according to guilt over time by you, first by coming into the police at Darwin and solving the crime and later by pleading guilty before me.

Further, your family now is fully supportive of you. Mrs Karen Cavanagh, nurse, and being your elder sister, gave evidence before me. She was a very impressive woman. The circumstance that your family is supporting you bodes well for your rehabilitation. I accept as entirely genuine your desire to seek in the future meeting again with your two boys, who are now aged 14 and 12 and, again, that bodes well for your rehabilitation. Accordingly, Mr Makin, I consider that you do have good prospects by reason of those very good family signs, your sister's evidence and your hopes for your children all pointing towards a good prospect of rehabilitation.

You have served 1,541 days in pre-sentence detention and I declare pursuant to s.18(4) Sentencing Act 1991, that period of 1,541 days as already served under the sentence I impose and I so certify.

Mr Makin, for the murder of Brian Freake, I sentence you to 17 years' imprisonment. I direct that you serve a minimum term before eligibility for parole of 13 years' imprisonment.

I certify that this and the 8 preceding pages are a true copy of the reasons for Sentence of Cummins J of the Supreme Court of Victoria delivered on 17 November 2004.

[1] See R v. Bedford (1986) 5 NSWLR 711 at 714 per Street CJ in whose judgment Slattery CJ at C.L. and Brownie J agreed, Williams v R (No 2) (1982) WAR 281 at 283 per Burt CJ in whose judgment Wickham J on this point and Kennedy J agreed, and R v Chen [1993] VicRp 64; (1993) 2 VR 139 at 158 per curiam and citing with approval R v Emery (Full Court, unreported, 11 April 1979). See also R v DLM [1999] VSCA 6; (1999) 2 VR 98 at 102 per Phillips CJ, at 107-108 per Ormiston JA and at 112 per Batt JA.

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