DPP v O'Neill [2015] VSC 25

Supreme Court of Victoria|2015-02-11|Before: HOLLINGWORTH J

CRIMINAL LAW - Sentencing - Murder - Arson - Offender spontaneously hit and strangled partner after argument - Some days later, set fire to premises where body was located - Initially pretended that partner had been alive at time of fire - Later confessed - Genuine remorse - Early plea - No prior convictions - Personality and adjustment disorders - Verdins principles applicable - Total effective sentence of 18 years' imprisonment with a non-parole period of 13 years' imprisonment.

1 Michael Anthony O'Neill, you have pleaded guilty to the murder of your partner, Stuart Rattle, and to one charge of arson.

2 You met Mr Rattle in 1997. You soon became partners in life, and later in business too.

3 Mr Rattle was a successful and well-known interior designer, with a reputation for perfectionism. Mr Rattle handled the creative side of the Stuart Rattle Interior Design business. You were responsible for managing the finances, quoting and invoicing, ordering stock, and liaising with clients.

4 You and Mr Rattle shared two homes. For much of the working week, you would stay in a one bedroom apartment on Malvern Road in South Yarra, which was located above the business premises. But you both spent as much time as you could at Musk Farm, near Daylesford. The two of you had bought the former school house at Musk, and spent much time and money transforming the building and the grounds into a magnificent and much-loved country property.

5 A week and a half before the murder, Musk Farm was opened to the public for a charity fundraising event. You and Mr Rattle both worked extraordinarily hard to organise the event, and make the gardens ready to receive thousands of people. Friends have described you both as being utterly exhausted, and at your wits' end, by the end of the weekend.

6 On Tuesday, 3 December 2013, the day before his death, you and Mr Rattle went to your regular Pilates class in the morning. That afternoon, you both visited some clients in Sorrento. This was the last time Mr Rattle was seen by anyone other than you before his death.

7 Around 6.00 am on the Wednesday morning, you and Mr Rattle had an argument. You had had sex the night before. When he tried to initiate sex again that morning, you said "no". He called you "a frigid bitch". You left the room and went to make breakfast. When you came back into the room a few minutes later, to apologise, you had a pan in your hand. He again called you a "frigid bitch" and said you were selfish. Against the background of your relationship, and given your fragile psychological state, this caused you to snap and hit him on the head with the pan. While he was dazed, you picked up a dog lead from the floor and strangled him until he was dead. As you were strangling him, Mr Rattle said "Michael, don't do this." This forms the basis of the murder charge.

8 Once dead, you placed Mr Rattle in a large plastic furniture bag that came up to his shoulders, and placed him on the bed. You said you did this because Mr Rattle hated things to be messy. A few days later, you placed him in an additional furniture bag, as his bleeding had caused a mess.

9 You then cleaned up the room, had a shower, and went to work in the office downstairs around 8.00 am. An employee, Jenny Addie, asked you numerous times where Mr Rattle was; you replied that he was not feeling well and didn't feel up to working. You asked Ms Addie to cancel Mr Rattle's morning appointments. Later that day, you attended an appointment with a client on behalf of Mr Rattle.

10 Over the next few days, you continued to keep various work and social engagements. When friends or clients enquired as to Mr Rattle's whereabouts, you generally responded to the effect that he was tired, or not feeling well, and resting at home.

11 You also made a couple of calls to the company responsible for your security alarm system; in those calls, you identified yourself as Mr Rattle.

12 In the early afternoon of Friday, 6 December you left the Melbourne area, heading towards Musk Farm. On the way, you dropped by the home of some friends who lived in Newlyn, to help them finalise arrangements for a party they were hosting that evening. You later attended the party, but only stayed for a couple of hours. You told your hosts that Mr Rattle was not feeling well, and would not be coming.

13 The next morning, you and Ms Addie exchanged text messages using Mr Rattle's mobile phone. You wrote in such a way as to suggest that it was Mr Rattle who was sending the texts.

14 You spent the rest of the weekend at Musk Farm, and returned to the apartment in the early evening of Sunday, 8 December. You bought a bottle of wine from a nearby bottle shop, and got some take away food from a local Indian restaurant. You bought enough take away for two people, and laid out two plates of food and two glasses of wine. In fact, you had been preparing food and drinks for both of you, and talking to Mr Rattle's body, over the days since his death, as if his death had not happened.

15 Shortly before midnight, you left the apartment and walked to a nearby service station, where you bought a bag of sweets. Before leaving the apartment, you placed a burning candle on the floor of the bedroom, next to the curtains covering the window, and near where Mr Rattle's body was lying on the bed. The curtains and other furnishings quickly caught fire. By the time you returned from the service station, the bedroom was well alight. This forms the basis of the charge of arson.

16 Just after midnight, you and a number of neighbours called 000 to report the fire at the apartment. Emergency services attended shortly thereafter.

17 After the fire had been extinguished, keys to the apartment were located a short distance inside the door. The prosecution says that you deliberately threw the keys inside and shut the apartment door, in order to delay the entry of the fire brigade and give the fire an opportunity to cause further damage. However, eye witness accounts of your behaviour at the time are inconsistent and inconclusive. While you may well have wanted the fire to burn for as long as possible, I am not satisfied beyond reasonable doubt that you deliberately took steps to impede the fire brigade.

18 Once the fire was extinguished, Mr Rattle's body was located lying on the bed. Mr Rattle had suffered burns to 100% of his body. He appeared to be covered in a plastic substance.

19 Based on burn patterns and charring, investigators concluded that one of two candlesticks located in the bedroom was the likely source of the fire, as there was no other ignition source or accelerant found.

20 The prosecution says that you had brought the two candlesticks down from Musk Farm, where they were usually kept, and had done so for the specific purpose of using them to start the fire. There is some evidence from the housekeeper at Musk Farm to support that suggestion. But the evidence is not conclusive as to when the two candlesticks came to be in the apartment, or for what purpose. In the end, probably not much turns on this point. Whether the candlesticks were already in the apartment, or brought down by you on the Sunday night, the fire was something which clearly involved some forethought, in order to make it seem like an accident. It was not a spontaneous act carried out in the heat of the moment.

21 You spoke to the police on the night of the fire, and provided a signed, sworn statement. Your initial statement was full of lies. You told the police that on the night of the fire, you and Mr Rattle were at home with your three dogs, watching DVDs in bed. You said that you had both eaten Indian take-away for dinner, and shared one and half bottles of wine. You said that he was asleep when you went out to buy some sweets. You said that the fire started while you were out.

22 Over the next few days, you continued with the charade that Mr Rattle had been alive when you left to go and buy the sweets. Mr Rattle's family and other friends comforted you, the grieving partner, as you went about the business of arranging his funeral. They had no idea that you had killed him almost five days earlier.

23 When the post-mortem examination was conducted on Mr Rattle's body, your story started to unravel. There was no soot present in Mr Rattle's airways or lungs. His body showed a degree of decomposition, which suggested that he had been dead for some time before the fire. He also had fractures to his skull and one side of his larynx. The homicide squad was notified.

24 You were arrested around 4.30 pm on Wednesday 11 December, and taken to the St Kilda Road police complex. During the car journey, the police told you that they had the autopsy results, and that "it is not all matching up." Despite that, for the first few hours of your police interview, you persisted with the same false version of events that you had previously given. Your account was, at times, quite awkward and unconvincing; you even asked the police whether there was anything they wanted to tell you. Eventually, after being asked some relatively innocuous questions about the text messages sent to Ms Addie's phone over the weekend, you decided to start telling the truth. You subsequently confessed to having killed Mr Rattle on the Wednesday morning.

25 Why did you kill Mr Rattle? The prosecution says that the interior design business was in a precarious financial position, due to your incompetence; they suggest that you killed Mr Rattle as an act of financial self-preservation, in order to cover up the true situation and protect your financial position. I do not accept that to be the case, for the following reasons.

26 You and Mr Rattle socialised with many of your wealthy clients, and enjoyed a first class lifestyle. Although asset rich, you both spent far beyond your means. The spending became even more extravagant after Mr Rattle's parents ceased to have any role in the business, around 2006. Mr Rattle was well aware that the two of you had been mismanaging your joint superannuation account, and delaying paying creditors, in order to fund your lifestyle. As long as he could buy what he wanted, Mr Rattle just expected you to make things happen financially. You had no training for the work you were doing, were disorganised, and not good at details. You often lied to cover up your mistakes. Mr Rattle, your friends and workmates were well aware of your habitual lying; it was something you had been doing since childhood. Even though Mr Rattle was at times frustrated by your incompetence and lies, he knew he could not afford to replace you; he also did not want to trouble himself with the finances, or the mundane aspects of running a business. There was no life insurance for you to benefit from if Mr Rattle died, and it was Mr Rattle who brought all the income into the business. Finally, there is no evidence that things were reaching a crisis point financially, or that the true financial position was being hidden from Mr Rattle.

27 I accept that you killed Mr Rattle in the heat of the moment, without any forethought, for reasons which are deeper and more complicated than those suggested by the prosecution. Your relationship with Mr Rattle was complex, and needs to be understood against the background of your childhood and your own psychological make-up.

28 You are someone who was cut off emotionally from an incredibly young age, who never came to terms with your sexuality, and who was bullied as a child because of it. The coping mechanisms which you learned as a child were avoidance, detachment, and (ultimately) dependence on others.

29 You were born in 1966, in Ireland, the second youngest of five children. When you were about 5, the family moved to Australia and settled in Terang, in country Victoria. Your father worked initially as a dairy farmer, then later as a farm mechanic.

30 Your older sister has autism spectrum disorder and a mild intellectual disability; much of your mother's time was spent focusing on her care, without the support of any extended family.

31 You were not a typical country boy; you were neat and effeminate, and didn't play sport. You were frequently teased and bullied, both at home and at school, for being "girly" or "a poof". Sometimes the bullying was physical, as well as verbal.

32 Even though you identified yourself at an early age as being exclusively homosexual, you had great trouble coming to terms with that fact. In your teens, you had a few short-lived relationships with girls. You spent your 20s having casual encounters with men. You met Mr Rattle when you were about 30; he was your first serious intimate relationship.

33 Sadly, you distanced yourself from your family, due to your shame and failure to accept your own sexuality. In the 16 years that you were in a relationship with Mr Rattle, you never once introduced him to your family, or acknowledged to them the nature of that relationship.

34 Mr Rattle was strong, confident and successful. He also had a dominant, controlling personality; everything had to be done his way, both personally and professionally. No doubt that was part of the key to his professional success. And, because of your own psychological make-up, you felt inadequate; it suited you to be with someone who took control and made all the decisions. But many of your mutual friends have described how Mr Rattle used to demean and belittle you in public. He frequently complained to them that you were not satisfying him sexually. In front of others, he would call you lazy, a parasite; he would threaten to send you back to where you came from. He was critical of your lack of business acumen. There were financial and business pressures on the relationship. In the work context, he treated you like the office boy, not his partner.

35 Although each of you was aware of and tolerated the other's shortcomings, there were tensions simmering beneath the surface. Those tensions seem to have been increasing in the lead up to December 2013.

36 Dr Mathew Barth, a psychologist who has been treating you since you were arrested, diagnosed you as suffering from dependent personality disorder, with prominent features of narcissistic personality disorder. The dependent personality disorder explains why you willingly submitted yourself to Mr Rattle's needs, and allowed him to largely control your life; but it also led to feelings of disempowerment and resentfulness. The narcissistic personality features explain some of your self-aggrandising behaviour, so as to compensate for deep-seated feelings of inadequacy and failure. They explain why you exaggerated your past achievements, and told so many lies, in order to avoid disappointing people and to make them think better of you.

37 You have also been diagnosed as suffering from adjustment disorder with depressed mood. You are socially isolated in prison, cannot imagine a future without Mr Rattle, and are still struggling to come to terms with the enormity of what you have done. After returning to prison at the end of the plea hearing, you used a razor blade to inflict a number of wounds on your arms; that was not the first time you have self-harmed whilst in custody. Dr Barth is concerned about the possibility of future suicide attempts or self-harm. Your depression is a reaction to your current predicament, and played no role in your offending. But it has exacerbated the deep-seated feelings of inadequacy, failure and self-loathing, which you have tried to repress for most of your life. It may be that your depressive symptoms could be alleviated to some extent by anti-depressant medication, an option which you have chosen not to pursue at this time.

38 I accept that your personality and adjustment disorders are such that you are likely to find time in prison more burdensome than for a person not suffering from such disorders, and that prison may itself exacerbate those disorders. Hopefully, you will be able to continue working with Dr Barth, or receive other psychological or psychiatric assistance, whilst in prison.

39 I also accept that your personality disorder played some role in your offending, and operates so as to reduce your moral culpability, and to moderate to some extent the need for general and specific deterrence.

40 I turn to consider your conduct in setting fire to the apartment, almost five days after you killed Mr Rattle. Although the apartment belonged to the company that owned the interior design business, you regarded the apartment as something that would become yours after Mr Rattle's death.

41 If, as the prosecution suggests, you set fire to the apartment for the purpose of covering up your earlier crime, that would be an aggravating feature of the murder.[1] In that case, it would be appropriate to impose a heavier sentence for murder, but to impose a reduced sentence for arson.[2] That is because a person is not to be punished twice for the same actions.

42 On the other hand, if, as your counsel suggests, you set fire to the apartment to try to preserve Mr Rattle's dignity, by making it look like he had died accidentally, then that would justify an increase in the sentence for arson, but no increase in the sentence for murder.

43 All counsel agreed that, having regard to the principle of totality and the need to avoid double punishment, adopting either approach would be likely to result in the same total effective sentence in this case.

44 In your record of interview, you said a number of things about why you lit the fire. When one of the interviewing police said that he thought you had orchestrated the fire to try and remove any evidence that you had murdered Mr Rattle, you said that you supposed that was "a fair assessment." But you immediately went on to qualify that statement. And, at a number of places in the record of interview, you said that you lit the fire because you wanted to make Mr Rattle's death seem more dignified: if it seemed like he had died in some sort of accident, there would be some dignity for him, rather than being found the way he was, "which wasn't particularly nice." While you may well have wanted to cover up your earlier crime, given your psychological make-up your explanation cannot be dismissed as an unreasonable possibility.

45 In all the circumstances, I am not satisfied beyond reasonable doubt that your setting fire to the apartment should be treated as an aggravating feature of the murder. Rather, I shall treat it for sentencing purposes as justifying a separate sentence, with greater cumulation.

46 Murder is a very serious offence, involving as it does the intentional taking of another person's life. A domestic murder is not to be treated as comprising a less serious category of murder, merely because of the relationship between the parties. However, courts often do make allowance for the fact that a murder committed on the spur of the moment, in a domestic environment, as a consequence of a volatile mixture of emotions, may attract a lesser sentence.[3]

47 In this case, you acted on impulse, immediately following an argument that had arisen suddenly. The argument involved a repetition of the controlling and belittling behaviour that had characterised Mr Rattle's relationship with you, in a situation where tensions in the relationship seem to have been increasing. This was certainly not the first time he had called you a "frigid bitch" for refusing his sexual advances. But, this time, you snapped. You felt angry and demeaned, that everything always had to be about what he wanted. You had finally had enough. You killed him in the heat of the moment. You then spent the next five days pretending that it hadn't happened, that you hadn't just killed the man you loved and on whom you were so dependent.

48 Mr Rattle's behaviour in no way justified your killing him. But the circumstances in which you killed Mr Rattle, including the history of the relationship and your fragile psychological state, mean that the sentence to be imposed for murder must be towards the lower end of the range for that offence.

49 To say that is not to ignore the great pain that your actions have caused to those who loved Mr Rattle.

50 Stuart Rattle was born in Melbourne in November 1960. He was one of three children of Jill and Ken Rattle.

51 Victim impact statements were provided to the court by Mr Rattle's mother and his sisters, Katrina Lewin and Dianne Newlands. At first, they and Mr Rattle's father had to cope with the thought that their son and brother had been burned to death in a fire. Naturally, they were devastated. They comforted you in your mutual grief. A few days later came the shocking news that Mr Rattle had died at your hands. Their grief was compounded by an overwhelming sense of betrayal by you.

52 In their statements, they speak of the enormous hole that Stuart's death has left in their lives. They miss his generosity, his enthusiasm, his talent, his encouragement and advice, and the interest that he always took in them and their families.

53 Ken Rattle was also shattered by his son's death. Suffering from a terminal illness, his health continued to decline; he died only eight months after his son. His family had to cope with his illness and death, without the support of Stuart.

54 Stuart's two sisters have also borne the burden of closing down the interior design business, and selling off Musk Farm and its contents. Apart from taking a substantial amount of time, it has been emotionally draining for them to dispose of all the things that Stuart had collected over the years, and which he so adored.

55 I accept that you are now genuinely remorseful for what you have done. After you dropped the initial charade, you made full confessions to the police, including disclosing to them information which was harmful to you and not otherwise known to them. There is plenty of evidence that you are devastated by what you have done, and are still struggling to cope with the prospect of life without the man you loved.

56 At the committal hearing, in September 2014, you pleaded guilty to these charges. This is an early plea.

57 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial of the charges against you. The family and friends of Mr Rattle have been spared what would, undoubtedly, have been a very traumatic trial.

58 You are now 48 years old. You have never been in trouble with the police before. You are of above average intelligence, and have worked throughout your adult life. You are fortunate to have the support of your family and many friends. I accept that you are unlikely to offend again, and there is little need for specific deterrence in this case.

59 Although you have no history of violence or problems with anger management, you have not developed good coping strategies. You deal with stressful situations by strategies such as repression, denial and avoidance, bottling things up rather than dealing with them appropriately. It would be highly desirable for you to be able to engage in appropriate counselling, both in custody and whilst on parole, to improve your conflict resolution skills. I have set a non-parole period that should be sufficient to enable you to address these matters.

60 There also remains a need for general deterrence, denunciation and just punishment.

61 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of murder, I sentence you to 17 years' imprisonment.

62 For the offence of arson, I sentence you to 2 years' imprisonment. I order that 1 year of the sentence imposed for arson be accumulated on the sentence for murder.

63 That makes a total effective sentence of 18 years' imprisonment.

64 I fix a period of 13 years before you become eligible for parole.

65 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 22 years' imprisonment, with a minimum non-parole period of 17 years.

66 Further, I declare that the period to be reckoned as already served under this sentence is 428 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] The prosecution does not suggest that you set fire to the apartment in order to defile Mr Rattle's body; that would have been a more serious aggravating factor.

[2] Reduced both as to actual sentence and the amount of cumulation. The maximum penalty for arson is 15 years' imprisonment.

[3] See for example the Court of Appeal's decision in Felicite v R [2011] VSCA 274 at [19] and the cases referred to in footnote 8 thereto.

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Judgment (71 paragraphs)

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