DPP v Porter [1999] VSC 120

Supreme Court of Victoria|1999-04-01|Before: Cummins J.

CRIMINAL LAW - Sentencing - Murder - Post-mortem intercourse - Considerations applicable.

Adrian Douglas Porter, you have pleaded guilty to the murder at Frankston on 23 August 1998 of your grandmother. Your grandmother at the time was 69 years of age, having been born on 24 April 1929. She resided alone, and at the time of her death was in the security of her own home, 6 Deane Street, Frankston. Your grandmother had had four children from her marriage, the second of whom is your mother. Your grandmother had nine grandchildren, including yourself. At the time of her death she was a pensioner.

You, Mr Porter, are 22 years of age, having been born on 23 June 1976, and were 22 years at the time of this offence. You are the elder of two boys born to your parents. At the time of the offence you were living with your mother and family in Pearcedale.

One week before this offence, you and others hired a video film, "Freeway", an Oliver Stone R-rated film. You and others watched it that afternoon and night of Saturday 15 August 1998. The film shows Keifer Sutherland as a psychotic killer who, after killing women, has intercourse with their bodies. In the film, which is loosely based upon the theme of Little Red Riding Hood, the main young female travels across the country in the United States to visit her grandmother. Whilst hitch-hiking, she is picked up by Keifer Sutherland, a serial killer who preys upon his victims. She escapes and injures him. She is gaoled. After she is released she ultimately attends her grandmother's, only to find, in her grandmother's bed, Keifer Sutherland waiting for her. He had killed the young woman's grandmother by strangulation and had had intercourse with her body.

On Saturday 22 August 1998 you, as was your wont at the time, commenced heavily drinking. You went from place to place, on the night to a party at Pearcedale and in the early hours of Sunday morning to the Pelican Bar in Frankston. When that closed at about 3.00 a.m., you went to the 21st Century Nightclub in Frankston. You got into a fight and were ejected. You had been during the evening in the company of your younger brother, but by reason of your conduct on the night your younger brother left with other friends in a taxi and went home. You had left your money on his person and, as a consequence of your behaviour and his leaving, you were in Frankston without money. You then commenced to walk. In a subsequent Homicide interview you said to the Homicide officers it would have taken you over two hours to walk home to Pearcedale. In fact you walked from the nightclub, along Cranbourne Road to Deane Street, which runs off it, and went to your grandmother's home. You did not go home to your own home at Pearcedale on that Sunday.

Your mother, the daughter of the deceased, on the Sunday, went round to your grandmother's at Deane Street, Frankston, to take your grandmother to church. Your mother knocked on the doors and the windows and failed to get a response. She telephoned and got no response.

When she went home, she rang her brother, your Uncle. Numerous telephone calls were made during the day. Just after 3.00 p.m. that Sunday afternoon, you telephoned your mother at Pearcedale, requesting transport home. You told her that you were at the Frankston Railway Station. She drove in to collect you, you having commenced walking along the Frankston/Cranbourne Road, in the direction of Pearcedale to meet her. She met you en route and drove you home to Pearcedale.

At much the same time, shortly after 5.00 p.m. on that Sunday afternoon, your Uncle attended the Deane Street premises, having failed to get any response to telephone calls. He was unable to raise any answer to his knocking and ultimately went around to the rear of the premises and found a window slightly ajar. He climbed through it, called out numerous times, searched through the house and ultimately found the body of his mother, your Grandmother, on her bed.

The Crime Scene examination revealed that both the front and rear doors of the premises were secured from the inside. The only point of entry to the premises was the rear bedroom window, which your Uncle had located ajar and had entered. Various items within that rear room were displaced.

Significantly, and I shall return to this, the rear room was a spare bedroom and in it was a spare bed.

In the lounge room, a large wooden handled knife was located on the arm of a couch next to the coffee table on which the telephone was situated.

Your grandmother was deceased on the double bed of her bedroom, lying on her back, naked with her legs spread apart. Part of her body was covered with the bedclothes and her nightie and pillow case were covering her face. Her throat area was exposed and was badly bruised, as were her eyes.

Two scarves had been tied together in knots to form a long cord. They were wound around your grandmother's throat and the free ends were tied to the rungs of the bed head stretching the scarves tight.

Several similar scarves were situated on a chest of drawers and a mirror in the room.

The small table beside the bed of the deceased had been overturned and the contents were scattered on the floor. Cash and other items of valuables were undisturbed at the premises. The other rooms of the premises appeared to be undisturbed.

Telstra records indicated, as indeed you later said to the police, that at 2.54 p.m. on 23 August 1998, there was a telephone call from the telephone service at Deane Street, Frankston, to your parents' home.

A post-mortem was conducted the next day by Dr Matthew Lynch at the Forensic Science Centre. He found that the deceased had suffered extensive bruising to the neck region, with fractures of the larynx, the hyoid bone and the thyroid cartilage.

The cause of death was ligature strangulation. There was also injuries to the dorsal of the left hand, consistent with defence injuries of the deceased to her attacker.

Examination was conducted of the vaginal area of the deceased and swabs were taken from her vagina for analysis. The pathologist found no evidence of injury internally or externally to the deceased's genitalia, but significant injury to the upper parts of her body.

You were interviewed by the police on 24 August 1998 at the Frankston Police Station and later attended the scene and performed a video re-enactment and were interviewed by officers of the Homicide Squad. You said to the police that there had been an argument at the nightclub and that you had decided to walk to your grandmother's and that you arrived there, you knocked on the front door and window and were unable to wake your grandmother. You sat on the front doorstep, had a cigarette, walked around through the garage into the rear yard, where you found the rear bedroom window slightly ajar. You said you climbed through the window and knocked over some objects as you did so. You said you knew and had known for years that the rear room was a bedroom and that it contained a bed and that you stepped around the bed and proceeded into the rest of the house. You said you did not turn any lights on.

You said that the deceased apparently had got up and bumped into you in the dark in the body of the house, commenced screaming and fled to her bedroom where you pursued her. You said that you knocked her onto the bed, climbed astride her, and manually strangled her in order to stop her screaming. At no time did you identify yourself. At no time did you turn on any light. At no time did you speak to the deceased.

After manually strangling her for several minutes on her bed, your grandmother stopped moving. You climbed off her and then turned on the bedroom light. That was the first time a light had been turned on in the house. Thereupon, your grandmother commenced moving again, and you again climbed astride her, and commenced again strangling her with your hands. During that struggle your grandmother grabbed something off the bedside table and struck you to the head several times. After some minutes the deceased became motionless. You got off the bed. Yet again, your grandmother commenced making noises. You then took some scarves and tied them together using them as a ligature to strangle the deceased and tied them to the rungs of the bed head. You then covered the face of your grandmother and went to the kitchen where you removed a carving knife from a drawer. You said that you considered suicide but could not bring yourself to do so and you left the knife where it was.

You said that you then slept on the couch for some hours in the lounge room before ringing your mother and requesting transport saying that you were at the Frankston Railway Station. Before you left the premises you attempted to wipe away with your T-shirt fingerprints from the telephone and the handle and you left the premises at the point at which you entered.

In the video re-enactment as well as the Homicide interview you displayed a very great recall of specific detail. At no stage did you mention any act of intercourse with the deceased, but in every other respect your recall was precise and detailed.

The forensic biologist examined the vaginal swabs from the deceased and detected the presence of semen. A DNA comparison was then made between that sample and a blood sample obtained from you. The DNA comparison demonstrates that it was your semen that was found on the swabs from the vagina of your grandmother.

The circumstance that there was no internal or external injury to the genitalia of your grandmother but there was significant injury to the higher parts of the body would indicate that you had had sexual intercourse with the body of your grandmother post-mortem.

You thus come before me for sentence on the count of murder. There is no charge of rape because your grandmother was dead at the time.

You are 22 years of age. You suffer no mental illness. You suffer no psychosis. You have for years been an abuser of alcohol and of illicit drugs. You have a normal intelligence within the low or dull range, assessed at an intelligence quotient of 85 by the Psychologist, Mr Healey.

You had some difficulties in your upbringing but not extreme difficulties. You, at the age of three, suffered the separation of your parents. You lived with your mother and stepfather for a number of years at Cranbourne. Your stepfather was strict with you, indeed at times punitive, but never abusive to you. Ultimately at the age of 12 you went to live with your natural father at Werribee and attended the Werribee Tech School, and there again commenced having difficulties with the family. This time with your stepmother who properly, as with your mother later, would not accept your abuse of alcohol and of drugs, sought to support you and guide you, you rejected that support and guidance, and properly they would not accept that rejection by you of that support.

Time and again you were dismissed from work by reason of your abuse of alcohol and drugs, having returned at the age of 16 to your mother's premises. You left school midway through Year 11, moved out to Werribee to live with other young persons and pursued your abuse of alcohol and marijuana and also used amphetamines to a substantial degree. At the age of 20 you had a hospitalisation by result of alcoholic withdrawal, and went back to your mother's at Pearcedale, and in an attempt to guide you she would drive you each day to the Frankston Station to assist you in getting work, but you got sacked from work for the reasons I have stated.

You stole cars more than once and have a number of limited prior convictions. The prior convictions do not involve violence, apart from one matter of a limited sort which I shall refer to shortly. In the end, you stole your mother's car and money and left and went interstate. Ultimately, interstate you were arrested and gaoled and your mother visited you in gaol in Queensland, seeking again to guide you and to say to you that upon the conclusion of your gaol sentence, she would seek to assist you in Victoria. You remained in Queensland for some little time, but eventually came back to Melbourne in March 1998, but a few months before this offence.

You stayed with another family for a period, but yet again, your misbehaviour caused you to leave there and then you returned to your mother's. You obtained a job at a roofing company in Mornington, but because of your abuse of alcohol and drugs you had so much shakes that you could not work on roofs and were placed in a factory. Your conduct deteriorated during that period by reason of your ingestion of substances, leading to the event in question.

Your mother gave evidence before me. I considered her to be a loving, loyal, intelligent, and most impressive woman. What a terrible situation for your family, and for her, to have the grandson on trial for murder of the grandmother. Your family seeks to support you as best they can. Your mother was asked this question and gave this answer, speaking of you: "Does he understand the enormity of the tragedy that he has created in his family?" And she answered: "I don't believe he does; I don't believe any of us do. I don't believe we really know what is going on here." Her loving and loyal answer was not a statement that you did not have remorse, but rather a statement of incomprehension by you and by the family of the enormity of your conduct.

It has been put on behalf of yourself by your counsel that you went to the home of your grandmother that night to sleep because you had no money for a taxi and it was too far to walk home to Pearcedale; and yet when you entered the rear bedroom you knew there was a bed there, you had always known there was a bed there, as the police re-enactment reveals, you knew that night there was a bed there and you carefully stepped around it and went into the premises.

I am satisfied that you did not enter those premises from the rear with the intention of sleeping there. You had knocked on the front door and it may be that at that time you did intend to sleep there if your grandmother had answered the door, or may be it was to ascertain whether your grandmother was likely to wake up.

On the other hand, I do not consider that you went there with any sexual purpose whatsoever. I agree with the psychiatrist, Dr Walton, who said at p.6.6 of his report of 30 November 1998, that that was not your purpose in going there. The most likely purpose, I consider, is that when you entered the rear of the premises you intended to steal from those premises, just as you had from your own family previously. When your grandmother awoke and came forward in the dark, no doubt she was terrified by the intruder. Even if she knew it was you, you having said to Dr Walton you were the black sheep of the family, she may still have been terrified, or (more likely) you believed she would have been terrified even if she saw it was you. But at no point did you identify yourself and on three occasions you attacked her and ultimately killed her.

The relevance of the "Freeway" video is, I consider, that at the back of your mind that seed had been planted, and having killed your grandmother you then had intercourse with her body, but I do not consider that was your purpose in going in, nor do I consider it was in the forefront of your mind.

The re-enactment and your statements to the police were most emotionless, factual and detached, almost dissociated, but at no stage have you admitted or perhaps more likely confronted the fact of what you did to your grandmother after you killed her.

You have a limited number of prior convictions from February 1995 to October 1997 which are primarily drug related and of dishonesty. There is no violence in your prior convictions, other than a limited matter, recklessly causing injury on 10 April 1997 at the Magistrates' Court, Frankston which was part of the theft of a motor car. You have no history whatsoever of cruelty or perversion. You do have a history, as I have said, of abuse of alcohol and of drugs. You have previously served imprisonment on two limited occasions.

The fact that your grandmother was in the security of her own home is a significant aggravating factor in this case. What you did to her after her death was an act of depravity. However, you are a young person, 22 years of age. You have no history of significant violence. You have no history of depravity or of perversion. You have no psychosis and no mental illness. You have significant prospects for rehabilitation, as is evidenced by your commendable efforts in custody, and by your youth, and by your lack of serious prior convictions.

You have served 220 days in pre-sentence detention, and pursuant to s.18(4) Sentencing Act 1991 I declare that period of 220 days as already served under the sentence I impose upon you.

Mr Porter, for the murder of your grandmother, I sentence you to 19 years' imprisonment. I direct that you serve a period of 15 years' before being eligible for parole.

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