Supreme Court of Victoria|1999-05-28|Before: Cummins J.

DPP v Paul Anthony McKee and Tracey Joan McKee [1999] VSC 207 (28 May 1999)

Criminal law - sentencing - murder - accessory pursuant to s.325 Crimes Act 1958 - post-mortem dismemberment and mistreatment of body of deceased - considerations applicable.

Mr McKee, you have been found guilty by a jury of the murder on 24 December 1997 at Frankston North of Mr Brett Andrew Harrop.

At the time of his death Mr Harrop was 40 years of age. You were 32 years of age. Some eight years earlier you had had a relationship with your co-accused Tracey Joan O'Neill as she then was, now your wife. There was a child born of that relationship, Matthew, on 25 October 1991. You and Ms O'Neill separated and went your different ways; Matthew remained with his mother.

Tracey O'Neill had previously had a relationship with Mr Harrop and after you, Mr McKee, and she separated she again then had a long relationship with Mr Harrop by which a daughter, Rhiannon, had been born on 27 April 1989. Mr Harrop, on a number of occasions during that period, spent time in gaol. He and Ms O'Neill and the children lived at numerous addresses, including interstate. Throughout 1997 they lived at 53 Forest Drive, Frankston North. Mr Harrop and Ms O'Neill were both users of heroin and other drugs as were you.

On 4 December 1997 police attended at 53 Forrest Drive looking for Mr Harrop. He was not there. However, because of evidence of neglect of the two children the Department of Human Services took immediate court proceedings to have the children removed and placed in care and protection, which they were.

The next day, following court proceedings concerning the children who thereafter remained in official care until 19 January, Tracey O'Neill, under the influence of heroin, was by chance seen by you at a bus stop in Frankston. You and she had had no contact for some eight years. You and she spoke; she attended your home nearby at 48 Anthony Street, Langwarrin and she and you immediately thereafter recommenced your relationship from years ago. She did not return to live at Forest Drive.

You both married on 31 January 1998. I shall hereafter refer to her as Mrs McKee.

Mr Harrop was found by the police and was bailed. One of the bail terms was that he report to the Frankston Police Station regularly. He so reported on the morning of Christmas Eve, 24 December 1997, the day of his death.

From the moment that you and Mrs McKee met again on 5 December 1997, Mr McKee, you were besotted by her. You sought to obtain and retain her affection. You had in the intervening years at times made substantial efforts to wean yourself off heroin including in 1997. In December 1997 you sought to achieve the same positive end for Mrs McKee. You were indeed attempting to build a positive and constructive future for you both.

On the afternoon of 24 December 1997 you, she and another person, Mr Brown, to whom I shall later refer, drove to Forest Drive to collect some of Mrs McKee's belongings. You had done so previously. Mrs McKee went to the front door with her keys. To your surprise, Mr Harrop opened the door. Mrs McKee had assured you that he was not living there. You were disturbed and disappointed for you concluded that she had not been truthful to you.

You, she and Mr Brown returned to your premises at Langwarrin. You and she discussed the matter. Then that night at about 8.00 p.m. the three of you returned to Forest Drive. You took with you a pen pistol. When you arrived there you all went round the back. You all entered the premises and after a violent but brief struggle between you and Mr Harrop, you shot Mr Harrop once through the head, killing him instantly. You all left the premises and returned some hours later. An attempt to clean the blood from the premises was made. You and Mr Brown took the body to a car and then you all returned to Langwarrin.

Thereafter, over the next day and night you dismembered and mistreated the body, burnt its parts in a family barbecue at your premises and, ultimately, on Boxing Night the remains were sunk in a dam at Somers, near Westernport Bay.

Mr McKee, you had no long standing plan to kill Mr Harrop. On the contrary, your only plan was to devote yourself to Mrs McKee. When you went to Forest Drive on the afternoon of 24 December 1997 it was for legitimate and lawful purposes - to obtain Mrs McKee's belongings. But after you saw that Mr Harrop was there, you lost confidence in Mrs McKee's truthfulness to you about him and you formed the plan to kill him. You had always disliked and feared him. You knew him previously and of his repute. Thus, although there was no long term plan or premeditation by you, nonetheless, the killing was deliberate, wholly without justification, and of a person in his home. Thereafter you subjected the body to terrible mistreatment. You stood over and threatened the life of Mr Brown to ensure he remained loyal to you and you threatened the lives of all the persons involved. When the police interviewed you on 13 February 1998, you lied about the relevant events and pretended that the deceased was still alive. All those matters, particularly the deliberate and unjustified killing of a person in his home, are especially serious. You gave two lots of untrue evidence before the jury.

You are now 34 years of age, having been born on 15 January 1965. You had a most difficult upbringing which is set out in the report of Mr T. Watson-Munro, psychologist, of 26 May 1999, Exhibit 2P before me on the plea, and which I shall not repeat in this sentence. It is contained in that report. In a comprehensive and helpful report, Mr Watson-Munro traces your history and concludes, as he did in his evidence before me, that you suffer significantly from depression and anxiety.

A report of Dr L.J. Chester, psychiatrist of 24 May 1999, Exhibit 1P, supports that conclusion over time - from September 1992 to February 1998.

You are quite an intelligent person. You have been a multi drug abuser, especially of heroin. You have had a number of prior convictions from 1984 to 1994 but they are for minor offences in comparison with the matter which brings you before me. You have had, and still have, a plain and obvious devotion to your wife. Indeed, that was the primary reason for your committing this offence. You also had, however, other motivations, in particular a hate and fear of the deceased. None of your mixed motivations justified what you did.

In your favour, Mr McKee, you have in the past made significant attempts at personal rehabilitation. You had done so in 1997. I believe you do have genuine prospects for rehabilitation. Those prospects are reflected, along with the other relevant sentencing principles, in the term of imprisonment I shall impose upon you, including the longer than usual period available to you for parole.

You have served 458 days in pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991 I declare that period as already served under the sentence I impose and I so certify. That means, Mr McKee, that that period will be deducted from the sentence I announce. Before doing so, I shall first deal with Mrs McKee.

Mrs Tracey McKee, you have been found guilty by a jury of being an accessory after the murder of Mr Harrop. You were presented before the jury upon a charge of the murder of Mr Harrop, the prosecution alleging not that you killed the deceased but that you were a knowing party to the killing by acting in concert with or aiding and abetting the killer. The jury found you not guilty of that charge. I therefore sentence you solely for committing the crime of being an accessory after the murder, sometimes called assisting the offender, not for any other crime, for you have not been convicted of any other crime.

Mrs McKee, you had for many years lived in a stormy relationship with the deceased. As I have already stated, and I shall not repeat it all, you had a child by the deceased. In December 1997 you and the deceased were living with Matthew and Rhiannon at Forest Drive. On 3 November 1997 case workers of the Frankston office of the Department of Human Services observed the unsupervised and dangerous behaviour of Matthew, who had then just turned six years of age. A number of attendances by case workers at your house at Forest Drive followed.

Ultimately, on 4 December 1997, a protection application was initiated by the Department concerning the two children who were then taken into care on 5 December 1997. Interim orders were made by the Melbourne Magistrates' Court to that end. You, Mrs McKee, attended the court; affected by heroin, you returned to Frankston; and by chance met your co-accused Mr McKee at the bus stop as I have already stated.

That day you moved in with him at his home at 48 Anthony Street, Langwarrin and there you stayed. You married him on 31 January 1998.

As I have already stated, you attended at Forest Drive on the afternoon of 24 December 1997 as you had done before to collect belongings. You did not expect Mr Harrop to be there. You and he had an argument and you told him to leave. You then left. That night you were present when Mr McKee killed the deceased. You are not guilty of that crime. After the killing you, Mr McKee and Mr Brown left but later that night you all returned to Forest Drive.

The offence with which you, Mrs McKee, have been found guilty is constituted by the following factual matters, of each of which, in sentencing you, I am satisfied beyond reasonable doubt. First, on Christmas Eve at night when Mr McKee, Mr Brown and you returned to Forest Drive after the killing, you busied yourself in attempting to clean the blood from the premises at Forest Drive. Indeed, when the two men took the body to the car, you remained alone in the house finishing up the cleaning and they waited for you in the car for you to leave the house and join them.

Next, on Christmas night in the garage back at Anthony Street, Langwarrin you took part, Mrs McKee, in the destruction of the body of the deceased. You took a tomahawk, attacked the severed head of the deceased, hit it numerous times and virtually destroyed it. As you did so, you said: "This is for this, this is for that", referring to previous incidents between yourself and the deceased. You remained in the garage and when Mr McKee was putting the deceased's body parts into a pillow case, you sat in a vehicle observing what he was doing. You were smiling at what you saw and at what you had done.

You had previously said to Mr McKee you wanted to have your fun with the severed head. When hitting the head, you were making loud noises as though you were having an orgasm. Mr McKee had to tell you to quieten down. You told Ms Milbourne that you had cut the testicles of the deceased from his body and that you had enjoyed doing that.

Next, when on Christmas night the Fire Brigade attended the premises, you sought to put out the barbecue in which the body parts had been placed by Mr McKee so that what was in the barbecue was not discovered by the officers attending. When the body parts were placed in the dam at Somers by the others, not by you, you took no part in that placement other than being there.

Next, when Homicide officers interviewed you on 13 February 1998, you sought, Mrs McKee, to lay a false trail to cover up the killing. You told a series of lies to the police, including that you had gone to an ATM with Mr Harrop when in fact he was dead and you were stealing his money. Your demeanour on the video of your interview by the Homicide officers was one of complete confidence and self-assurance. It was a virtuoso performance.

Your assisting the offender thus was active, substantial, over time and a full participation by you.

In reaching the factual conclusions I have stated, I have had the advantage of observing the evidence of Mr Brown, Ms Milbourne and of yourself. Your evidence, Mrs McKee, before the jury was carefully crafted by you to avoid any liability for the crime of which you have been convicted. I accept as truthful and accurate the evidence of Mr Brown and Ms Milbourne concerning you. Both were clear, responsible witnesses. Ms Milbourne in particular was an impressive witness, firm, fair and truthful.

Mrs McKee, you are now 35 years of age, having been born on 12 December 1963. You married Mr McKee, your co-accused, on 31 January 1998, five weeks after the offence. When you acted as you did on 24, 25 and 26 December 1997, in your marriage on 31 January 1998, and in the Homicide interview on 13 February 1998, you were well in control of what you were doing. You were in no fear of your co-accused. Rather, he was, and he remains, besotted by you.

Mrs McKee, you have a number of minor prior convictions, which are not to be held against you in any way, and which were consequent upon your long term heroin addiction. As is demonstrated by the reports exhibited before me on your plea, particularly Exhibit 2T, a report of Mr V. Doquile, drug counsellor, dated 26 May 1999, you have now made substantial efforts at drug rehabilitation. You are, Mrs McKee, an intelligent person. Apparently you had previously suffered from Bipolar Affective Disorder, having previously been described lithium, but you are now not so suffering nor were you at the time of the offence for which you have been convicted.

I take into account, Mrs McKee, the especial burden upon you of being separated from your two children, who were returned to you on 19 January 1998. That burden in particular has caused me to reduce the sentence of imprisonment otherwise I would have imposed upon you. However, your criminal conduct was active, voluntary, substantial and over time. Your treatment of the body of the deceased has an especial impact upon the living victims of the offence, the family of the deceased, by significantly adding to their suffering.

Your case is quite different from that of Mr Brown. Mr Brown was, to use the expression of the learned trial prosecutor, Mr McKee's "gopher". Mr Brown was in thrall to Mr McKee; you were not. The significant differences between your case and that of Mr Brown are these: First, Mr Brown was deeply troubled by what had occurred and his part in it; you were not. Second, as soon as Mr Brown's mother, to his belief, was available to be contacted in Australia, she having been overseas, on 25 February 1998 Mr Brown contacted her and the next day with his mother he went to the police and truthfully confessed his offence. Next, Mr Brown at no stage sought an indemnity and, indeed, rejected the idea of one. Next, Mr Brown did not seek to obtain legal advice but went straight to the Homicide police. Next, Mr Brown has been prepared to give truthful evidence about the matters. Next, Mr Brown pleaded guilty at the earliest opportunity.

Although you offered, Mrs McKee, to plead guilty to the crime of accessory prior to the trial, at the trial you gave evidence that, and contended that, you were not guilty of it. For those reasons your case is quite different from that of Mr Brown.

Mrs McKee, you have served on account of this matter the period of 259 days in pre-sentence detention. Pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that period of 259 days as already served of the sentence I now impose and I so certify. Mrs McKee, for being an accessory after the murder of the deceased I sentence you to six years' imprisonment. I direct that you serve a minimum term of four years' imprisonment before being eligible for parole.

Mr McKee, for the murder of Brett Andrew Harrop I sentence you to a period of 21 years' imprisonment. I direct that you serve a period of 16 years' imprisonment before you are eligible for parole.

DPP v Paul Anthony McKee and Tracey Joan McKee [1999] VSC 207

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Judgment (39 paragraphs)

DPP v Paul Anthony McKee and Tracey Joan McKee [1999] VSC 207 (28 May 1999)

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