R v Crosbie [2003] VSC 69

8. You had commenced a relationship with Melissa Maahs during the year 2000 and during that year you and she commenced to live together at your father's residence in Morwell.

11. Subsequently, and between 5 November 2000 and April 2001, you and Melissa lived together in a Ministry of Housing home at 2 Buna Street, Morwell. On 8 April 2001, the pair of you went to live with Melissa's mother, Kaye Maahs, at 22 Dayble Street, Morwell. There, you and Melissa occupied a second bedroom. There is nothing before me to say that the relationship that you had with both your victims up until the night of the murders was anything other than close, in the case of Melissa, and cordial and affectionate, in the case of her mother.

14. At approximately 3.00 a.m. on Saturday 18 August 2001, you and Melissa occupied a double bed in the second bedroom of 22 Dayble Street, Morwell. Melissa was asleep, lying face down on your right-hand side. You were watching a movie. You were wearing a pair of corduroy pants and attached to the front of the pants was a scabbard containing a skinning knife. The knife in question had a curved blade approximately 80 millimetres in length. Whilst watching the movie you looked down at Melissa and whilst she was asleep you removed the knife from the scabbard. You held the knife in your right hand, and using a downward motion, stabbed her three times in the head. Your victim, Melissa, was woken by these blows and began to scream.

17. You then took hold of the back of her head with your left hand, and with the knife held in your right hand, repeatedly inflicted stab wounds to her throat. It is clear that Melissa attempted to defend herself by pushing you away. In the course of this action she suffered cuts to her hands. After receiving several stab wounds, your victim, Melissa, managed to move away from you and sat in an upright position on the bed with her back resting against the wall. Her knees were bent up and her hands were raised in front of her face. In the course of this savage attack on Melissa you lost your grip on the knife handle and cut your own right hand on the blade of the knife. You then alighted from the bed and commenced to walk towards Kaye Maahs bedroom. You told police that your intention at that time was to stab Kaye Maahs. As you entered the hallway of the premises, Kaye Maahs was walking towards the bedroom occupied by you and her daughter, Melissa. You saw her silhouette in the dark hallway, switched on the light and then inflicted a stab wound to the right side of Kaye Maahs' throat. You inflicted further multiple stabbing injuries to her head, neck and upper back. These injuries caused her to fall to the floor in the bedroom doorway. It is apparent from injuries to her hands that Kaye Maahs attempted to resist you. You told police that she pushed her hands towards you and that as she did so you were "stabbing, slashing, cutting" her. You said you were trying to kill her. At about this time she said, "Melissa, call an ambulance. I think I am dying."

20. You then re-entered the bedroom and inflicted further multiple stabbing injuries to the throat and upper body of Melissa who at this time was on the floor beside the bed. Having done this, you returned to Kaye Maahs and further stabbed her in the throat, back and upper body. You then returned to Melissa and inflicted further stabbing injuries to her throat, upper body and back. You told police that during this time she screamed at you, "What are you doing?" You said, "I am sorry but I have to " and you then proceeded to grab her by the hair and stab her in the "other side of the neck". During the course of stabbing Melissa the tip of the knife, measuring approximately 10 millimetres, broke off and was left embedded in Melissa's skull. You paused for a period of time and entered the lounge room where you vomited on the floor. However, you then returned to the bedroom and continued to stab Kaye Maahs. At one point you thrust the knife directly into Kaye Maahs' throat and pulled it across her throat in a slashing motion.

23. You then approached Melissa Maahs, felt her stomach with your left hand and when you felt no movement you formed the belief that she was deceased. However, because you could hear Kaye Maahs moaning, you believed she was still alive. Accordingly, you entered the hallway and took hold of a Chinese style ceramic ornament from the hall table. This ornament was one of a matching pair. You struck Kaye Maahs once across her head causing the ornament to shatter. You then took hold of the second Chinese ornament, and whilst holding that in your left hand, struck several further blows across Kaye Maahs head. These caused this ornament also to shatter. Because Kaye Maahs was still making some noise you believed she was alive and you went to the kitchen where you obtained a frying pan from the stove. You returned to her and struck her several times across the head with the frying pan. However, you held a belief that she was still alive and you went to look for another object with which to strike her. You obtained a clothes iron from the laundry cabinet and returned to her and thrust the pointed end of the iron into her face several times until you were satisfied she was dead.

26. You then ransacked the house in an attempt to simulate a burglary. In the course of this, you found Kaye Maahs' handbag and removed her telephone and $90 from her purse. You then re-entered the bedroom, approached the body of Melissa and moved her body over to the bed. You positioned her upper body face down on the side of the bed, placed lubricant upon her anus and vagina and on your penis and then performed acts of anal and vaginal intercourse on her body. As you did so, you placed pornographic magazines on her back to arouse yourself sexually. You told police that you ejaculated on two occasions over a period of approximately half an hour. Having performed these sexual acts on the body of Melissa, you then removed your clothes in the lounge room and had a shower. You obtained a bandage from the bathroom cabinet and dressed the wound you had sustained to your right hand to stop the bleeding. You then packed some clothing, cooking utensils, toiletries and bandages and several pornographic magazines in a back pack and left the house.

29. You caught a taxi to Morwell Railway Station, travelled to Melbourne and purchased a train ticket to Wangaratta. Whilst in possession of Kaye Maahs' mobile phone, you used it to make several telephone calls to your bank and to adult fantasy chat lines. Upon arrival in Wangaratta you contacted your father and arranged to stay with him. On the way from the railway station to your father's house you threw the telephone belonging to Kaye Maahs into a creek. The following day you disposed of the knife and scabbard which had been used to murder your victims in the same creek.

32. In the early hours of Monday 20 August 2001, homicide investigators attended at your father's premises and you were apprehended and conveyed to the Wangaratta Police Station. You were interviewed by police that day and made full and comprehensive admissions to the murders of Melissa and Kaye Maahs. The knife and mobile phone disposed of by you in the creek at Wangaratta were recovered as a result of these admissions.

35. The post mortem reports and the photographs tendered with the depositions, demonstrate the brutal and frenzied nature of your attack upon both women. The terror suffered by them in the course of your brutal attack can only be imagined. Your victims knew you well and, clearly, Kaye Maahs trusted you to share her house with her and her daughter. Melissa Maahs trusted you to share her room and bed with her. There is not a scintilla of evidence to suggest that either of your victims had given you any cause or provocation or reason for anger which could in any way explain your murderous behaviour towards them. The depravity with which you treated the body of your victim Melissa after her death is not only an aggravating factor but it demonstrates a total lack of remorse by you at that time. These murders were not committed by you in anger or rage, or in the course of interpersonal friction, or whilst your faculties were in any way affected by drugs or alcohol. You have provided no explanation to police, or to those who have examined you, for the murders. The prosecution, in these circumstances, submits that you killed for the sheer pleasure of killing.

38. It is appropriate to consider some of your background. You were born in Wangaratta on 16 April 1982. You are the youngest of a family of five children. Your parents had a difficult relationship, often marred by violence. This relationship broke down when you were about five years of age. Your father had problems with alcohol abuse and your mother has suffered from significant psychiatric problems throughout her life. Your childhood was marked by frequent changes, both of those people who were caring for you, and of your location. You had several periods in foster care following the break-up of your parents' marriage and you were placed intermittently with one or other parent and with other family members. You changed schools frequently. Professor Mullen, who prepared a psychiatric report dated 31 January 2003, at my request, considers that you suffered a "disorganised home life and often an environment of frank neglect". You were bullied and excluded at school and did not cope well in that environment. You left school at the age of 15 and have never obtained employment. It would appear that the disorganised nature of your childhood was to some extent ameliorated by the presence of your two older brothers. In your early adolescence you were introduced by your older brothers to a variety of behaviours related to violence, including watching violent videos and the killing and torturing of animals. Discussions of violence and taking revenge on those whom you and your brothers believed had misused or abused you took place. Professor Mullen has stated that as a result you spent your "formative years as part of a closed, distressed group who sought in violent videos, violent fantasies and violent acts, some sense of protection and control over a world they jointly experienced as rejecting and abusive".

41. Both your older brothers have been involved in various kinds of offending as adolescents and both have committed serious acts of violence as adults. Your oldest brother is currently an in-patient at the State's secure psychiatric hospital following having apparently been found not guilty on a charge of murder because of mental impairment. The younger of your two older brothers is serving a sentence for attempted murder.

44. The depositions contain evidence of an event which took place in August 2000 and which gives a chilling insight into your state of mind at that time. On 15 August 2000, Morwell Police were called to the premises then occupied by you. You had been "smashing up" the premises and police were called by neighbours. The police placed you in a divisional van and you were taken to the Latrobe Regional Hospital. You informed the doctor that you wanted to "slit everybody's throats and rip their faces off". As a result of this, a psychiatrist was called. You told the psychiatrist that you missed your two brothers who were both in prison, that you wanted to kill people and that you would do that by slashing their throats or putting a knife in their temple. You said that knives were your favourite weapon because they could be concealed easily. You told the doctor that your oldest brother had killed someone at the age of 20 and that your other brother did what he did at the age of 20, and you had "a couple of years" to plan what you were going to do. The doctor concerned was unable to observe any psychotic features but he considered you to be an angry man who had difficulties complying with the rules of society at large.

47. The senior constable who took you to the hospital on that occasion made the following note: "Listening to Crosbie he was a very angry and disturbed person. He feels like the world is against him. He has a deep hatred for all those that have caused him grief in the past. I believe that he could cause serious injury to someone in the future. He appeared fixated with the idea of killing someone in an effort to be reunited with his two brothers. All members (no doubt referring to members of the police force) should be made aware of his thoughts and treat Crosbie with extreme caution."

50. Regrettably, as the events which bring you before this court prove, those words were prophetic indeed.

53. Subsequent to the murders which bring you before this Court you were examined by two psychiatrists, principally in relation to the question of whether you were fit to plead to the two counts of murder.

56. Dr Grant Lester, a consultant psychiatrist with the Victorian Institute of Forensic Mental Health, examined you at the Melbourne Assessment Prison on 18 February 2002 and provided a report to your solicitors dated 20 February 2002. You told him that you have felt depressed and angry your whole life and have always been fascinated by "death, destruction and sex". You told Dr Lester that your school years were marked with a history of petty pilfering and burglary, vandalism of homes and shops and indiscriminate killing and torturing of animals. You described to him your anger and alienation from everybody around you. Dr Lester was unable to find any evidence of formal thought disorder, delusions, hallucinations or delusions of possession. You did tell Dr Lester that since the age of four you had experienced the hearing of voices and that in the months leading up to the alleged offences these voices were telling you that your girlfriend and her mother were conspiring to trap you. However, you also informed Dr Lester that on the night of the alleged offence there were no voices at all. Dr Lester formed the view that you were fit to plead.

59. Subsequently, your solicitors obtained a report dated 27 May 2002 from Dr J. Barry-Walsh, a consultant forensic psychiatrist who examined your in prison in May of 2002. Dr Barry-Walsh obtained from you a "lifelong history of obtaining pleasure, including sexual pleasures out of acts of violence and cruelty". You described to Dr Barry-Walsh how you, together with your brothers, had frequently caught and killed cats and dogs and other animals. You acknowledged that you "often fantasised about such violence and became aroused by acts of violence and had masturbated and had sexual intercourse to fantasies of violence". Dr Barry-Walsh noted that you "became more animated and excited during the interview when you reflected on these episodes and your responses to them". Dr Barry-Walsh said:

"Mr Crosbie is alleged to have committed a particularly violent and extraordinary crime. The summary given by the police suggests a significant sexual element in these offences. When such offences occur that seem so much beyond the realms of normal or even understandable human behaviour ... it is reasonable to consider whether such a person may have a psychiatric illness. However on the basis of my assessment it is my opinion that Mr Crosbie was not at the time suffering from a significant psychiatric illness, particularly that he would not have available to him a psychiatric defence that is, one of mental impairment, to the offences. He does give a lifelong history of hallucinations, but there is no other history that he gives or anything on interview with me that suggests he may be psychotic. I note that he has given a rather somewhat different history more suggestive of psychosis to Dr Lester and also to other psychiatrists. However, he has been inconsistent in his accounts of this, and there has been no corroborative evidence to support the history that he gave. Further it is the opinion of his treating psychiatrists at the (Acute Assessment Unit) that he did not have a psychotic illness."

"The offences themselves seem to be consistent with excitement that he experiences and the pleasure that he gains from violence. I would note that he tells me that at various times he has thought of harming or killing most people that he has been in contact with including members of his family. It was also notable on interview that he genuinely appeared to become more excited and interested when he talked about violent acts. Even in discussions of the offences themselves, he acknowledges feelings of happiness and excitement when he thinks about his actions coupled together with feelings of sadness and remorse. In other words this man appears to have developed sexual sadism and the offences can be understood as being a product of this sadism. Although sexual sadism is profoundly disturbed psychological behaviour, it does not represent nor is it the product of a psychiatric illness."

67. As both the reports of Dr Lester and Dr J. Barry-Walsh were prepared with the specific issue in mind of whether or not you were fit to plead, and because of the nature of your crimes I considered it appropriate after your plea in this matter to obtain a further pre-sentence psychiatric report. I requested that such report be provided by Professor Paul Mullen, the Professor of Forensic Psychiatry at Monash University and the Clinical Director of the Victorian Institute of Forensic Mental Health. Professor Mullen's report of 31 January 2003 contains the following passage:

"The crimes for which Mr Crosbie has (sic) been convicted are of an appalling nature. If Mr Crosbie is to be believed there was a tragic inevitability about the killings which were proceeded (sic) by increasingly violent fantasies. Mr Crosbie states that his relationship with Melissa Maahs was the closest and most personally rewarding relationship of his life. Similarly he describes his prior relationship with the mother, Mrs Kaye Maahs as one of affection and closeness. The dreadful killings appear to have emerged not out of anger, resentment or jealousy, but in the context of a fear of increasing closeness and a fear that he would inevitably lose these relationships which he valued. The killings themselves would appear to have elements not just of extreme brutality but of active sadism involving sexual excitement linked to the murderous acts."

71. Accordingly, and having considered each of the psychiatric reports before me, I am driven to the conclusion, as submitted by the prosecution, that you derived sexual excitement and perverted pleasure from killing your victims in a sadistic manner. No other explanation appears on the evidence to be available.

74. Both of these crimes, and the circumstances in which they occurred are grave, serious and heinous. You abused the trust of your partner and her mother by murdering them in circumstances of immense brutality and callousness. Both of them, on any view of the evidence must have suffered grievously before death overcame them. The victim impact statements tendered before me demonstrate the tragic effect that the loss of his wife and daughter have had upon the husband of Kaye Maahs who although estranged from her, had a good relationship with her and a loving relationship with his daughter, Melissa. Kaye Maahs' son-in-law, who discovered the bodies of your victims, has and no doubt will continue to suffer immensely from the trauma, as will each of her surviving daughters. The loss of their mother and their sister in such horrendous circumstances is almost unbearable for them and will no doubt significantly and deleteriously affect their future lives.

77. There are however, a number of matters which, notwithstanding the appalling nature of your crimes, are required by me to be taken into account in terms of mitigation. The first of these matters is that you have pleaded guilty to each of the offences. Whilst there can be no doubt that the Crown case against you is overwhelming, your plea of guilty has avoided the necessity for a trial and has avoided the necessity for victims of your crime to give evidence against you and to experience the traumatic nature of a contested trial. However, beyond that I am unable to say that your plea of guilty reflects any significant degree of remorse on your part. There is nothing in the material before me which leads me to a conclusion that you suffer remorse in any meaningful way for your actions. In this regard, I have carefully looked at and listened to the video tape of your record of interview conducted on 20 August 2001. It is true that at one point you became upset and said in answer to a question from police about your intention in stabbing Melissa:

"I don't know. I don't. I just did and I've been thinking about it ever since fucking Saturday morning. Wouldn't have a clue ... It's got me thinking all this time, about what normal reason she's the only girl that's ever loved me. Why the fuck would I wanna hurt her?"

81. However, apart from a loss of composure by you in the course of the interview at and around the time of this answer, I am unable to find any statement or other evidence of remorse in the record of interview. Indeed, the cold manner in which you described the shocking events which occurred is most disturbing. The description by you of your defilement of the body of Melissa on the video tape of the record of interview in a matter of fact and cold tone is chilling indeed.[1]

84. The only suggestion of remorse that I can find in the material before me appears in the report provided by Dr J. Barry-Walsh on 27 May 2002. In that report Dr Barry-Walsh stated:

"In relation to the alleged offences, he has good recall for the offences. He described no symptoms suggestive of psychiatric disorder around the time of the offences. He described a mixture of emotions in thinking about the offences, including sadness and regret for the loss of his girlfriend and her mother but also a sense of pleasure and excitement in relation to the violence that he perpetrated at that time."

88. This appears to me to be well short of an expression of frank remorse for your horrendous crimes. It demonstrates that you are yet to achieve any understanding of the enormity of the nature of your criminal conduct.

91. It is true, as submitted by your counsel, that you provided full and frank co-operation with the investigating officers. That co-operation is borne out in your record of interview and the sequence of events which I have set out above is revealed by your record of interview.

94. Although you have prior convictions in the Children's Court for burglary, theft, damaging property, and recklessly causing injury, there is no great relevance in relation to those convictions and the crimes to which you have pleaded guilty and I do not take them into account other than as evidence of your unsettled adolescence.

97. You are a young man. You were aged 19 years of age at the time that the offences to which you have pleaded guilty took place. You are now 20 years of age.

100. I have taken into account the unhappy family background and the deprived environment in which you grew up. It does appear that the most constant feature of your childhood was your relationship with your two older brothers, neither of whom can be said in any way to have provided you with an appropriate role model. Indeed, the contrary appears to be the case by reason of their inclusion of you in their aberrant behaviour.

103. You acquired minimal education and no qualifications from your schooling. It would appear that you were treated by teachers in your school as a child of low academic ability. I note, however, that Professor Mullens considers you to be an articulate man of good intelligence. My viewing of the video taped record of interview confirms in my mind that you are indeed articulate and intelligent. Professor Mullens noted that at some time during your early teens you began to take what he called refuge in reading and that as a result you have acquired a wide vocabulary and demonstrate a considerable fluency in the use of language. I accept that you present before the court as a grossly disturbed and distressed young man, much of which may be related to your early life experiences.

106. The Prosecution submits that by reason of the gravity and seriousness of your crimes the maximum sentence of life imprisonment should be imposed. I have given careful consideration to the appropriate sentence to be imposed upon you. It is a grave step to pass a sentence of life imprisonment on a young offender for the obvious reason that the younger the offender, the more severe that sentence will generally be.[2] As Brooking JA said in R v DJH:[3]

"The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration."

110. Particularly relevant in the consideration of an appropriate sentence, as I have said, are your pleas of guilty and your co-operation with police. However, even in the case of a young offender there are occasions when such important factors as youth, a plea of guilty, and co-operation with police, must give way to the achievement of other objectives of the criminal law. As Brooking JA said in R.v DJH:

"It is not to be thought that a plea of guilty will necessarily and in all circumstances save a murderer from life imprisonment."

114. The two murders to which you plead guilty before me were particularly callous and brutal. Your victims must have suffered painful and terrifying deaths. The only explanation for your behaviour is that the killings took place in a context of sadism involving sexual excitement linked to the murderous acts to which you subjected your victims. There is the aggravating circumstance of your defilement of the body of Melissa. Furthermore, it must be remembered that not one but two, decent members of our community have lost their lives at your hands.

117. Accordingly, and notwithstanding the matters of mitigation which do arise in your case, I conclude that a term of life imprisonment is the appropriate head sentence in relation to each of the murders to which you have pleaded guilty. The sanctity of human life must be protected by this Court and in my view the dreadful and depraved nature of your crimes calls for severe punishment. Clearly, the issue of general deterrence is particularly important in the circumstances of crimes such as these. Furthermore, there can be no doubt that you remain a serious danger to the community and that subject to the principle of proportionality, the protection of the community is relevant indeed. Furthermore in that context and for that reason specific deterrence is of real application to you.

120. In this regard, neither of the medical reports produced before me on your plea suggests that your profoundly disturbed psychological condition might abate or be capable of being treated in the future. However, this matter has received the attention of Professor Mullens in the course of his pre-sentence report provided to the Court. He states as follows -

"Mr Crosbie is a seriously disturbed young man. The crimes which he committed are appalling. Mr Crosbie is, however, not a man without redeeming features and positive qualities. A childhood of neglect and a virtual absence of effective education in someone with good intelligence and the potential to learn and to develop. His psychological and emotional problems, though considerable, are in part at least problems which are likely to ameliorate with age and problems which are open to modification and improvement given an appropriate environment and therapy. Despite the severity of Mr Crosbie's psychological and emotional disturbances and the nature of his offending, it would be my opinion that long term there is a prospect that this man could develop personally and intellectually into someone who might eventually return to the community as a safe and reasonable citizen."

124. Section 11(1) of the Sentencing Act 1991 provides that a minimum term before eligibility for parole must be set, unless the Court considers that the nature of the offence or the past history of the offender make the fixing of a minimum term inappropriate.

127. I have considered carefully the issues raised this case in the light of recent decisions of the Court of Appeal of the Supreme Court of Victoria dealing with the principles applicable to fixing a non-parole period in circumstances such as these.[4] In my view, in all the circumstances, I am bound by the relevant authorities to determine the period which justice requires be served as a minimum period, notwithstanding the fact that it cannot now be said with any confidence that at some future time you will be rehabilitated to a point that the community will not be at risk if you are released. As Southwell J said in R v Denyer[5]:

"It must steadily be borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the non-parole period. ... If upon all the evidence available to it at the time, the Board forms the view that the protection of the community demands the continued incarceration of a prisoner, then it would not grant release on parole."

131. Accordingly, and notwithstanding the gravity of your crimes and the necessity in my view to fix a head sentence of life imprisonment, I consider I am bound by reason of your age in particular, together with your plea of guilty, your co-operation with police, and the possibility that you may be capable of being rehabilitated at some time in the future, to fix a minimum term of imprisonment to be served by you before you become eligible for parole. Such a minimum term would enable you, if the Adult Parole Board is satisfied of your rehabilitation, to be placed on conditional release at some stage in the future.

134. In my view, the appropriate minimum term before you might become eligible for parole in the whole of the circumstances of this case is 30 years. You are accordingly convicted on each count of murder and sentenced to life imprisonment on each count. I fix 30 years as the period to be served before you might become eligible for parole. Pursuant to s.18 of the Sentencing Act I declare that the time that you have spent in custody in relation to these proceedings is 568 days and I direct that be reckoned as a period of imprisonment already served under the sentence. Furthermore, and pursuant to s.464Z(FB)(2) of the Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by you on 20 August 2001 be retained for placement on the data base. Having considered the seriousness of the circumstances of the offences to which you have pleaded guilty, I am satisfied that in all the circumstances the making of the order is justified both by reason of such circumstances and by reason of the public interest. I note that this order is made by consent.

[2] See R v Lowe [1997] 2 VR 465; The Queen v "DJH" [1998] VSCA 108; DPP v SJK and GAS [2002] VSCA 131; and R v PDJ [2002] VSCA 211.

[4] R v Denyer [1995] VicRp 12; [1995] 1 VR 186; R v Lowe [1997] 2 VR 465; R v Coulston [1997] 2 VR 446; The Queen v DJH; DPP v Adagian [1999] VSCA 105; and R v Camilleri [2001] VSCA 14.

[5] [1995] VicRp 12; [1995] 1 VR 186 at 196.