R v Culleton [1999] VSC 478

Supreme Court of Victoria|1999-09-06|Before: VINCENT, J.

Mr Culleton, you have pleaded guilty to what is effectively the provision of assistance to your brother who you believed had unlawfully killed, if not murdered, his wife on or about the 6th day of July 1973 at Geelong West in the State of Victoria.

It will be observed that I have employed the current formulation under the criminal law to describe your conduct which, although encompassing it was not the way in which your criminal behaviour would have been defined in 1973. I have adopted this course, which has no practical significance in terms of the result in your case, in order that the nature of your criminality may be perceived in a more familiar context.

What appears to be reasonably clear, however, is that on being confronted with the circumstance that your brother had killed his wife, you assisted him to conceal her body by burying it in a field at Diggers Rest. Thereafter you maintained silence about what had transpired until eventually, many years later, and when as a consequence of the re-opening of the matter at the instigation of one of her children your wife was interviewed, you decided to make a statement about what had happened. It has been asserted by counsel on your behalf and I accept for present purposes that you have long been troubled by a sense of guilt and remorse over your part in the matter but felt unable to bring yourself to disclose what had taken place.

In determining an appropriate sentence to be imposed in the circumstances there are a number of factors, which have to be taken into account. Obviously, inter alia, it is necessary to look at the character of the assistance provided, the relationship that existed between the alleged perpetrator of the initial crime and yourself, and your motivation for providing assistance. It is very much against the community's interest that persons should assist others in the concealment of the commission of very serious crimes, and clearly, as a general proposition, the engagement in such activity has to be deterred.

The unlawful provision of assistance to an offender involving the concealment of both the death and the body of the deceased to the point where her body may never be located must be regarded as extremely serious conduct.

Obviously the personal factors relating to an offender which included in your case the age of the offence and the long history of law-abiding behaviour which has followed its commission and which emphasises its singular place in your life, must be taken into account. The reason that you finally came forward assumes importance also, in this context. There is a very substantial difference between the position of a person who appreciating that the net is closing around them may determine to make what might be called a pre-emptive strike and protect their situation and an individual who, as in your case burdened by conscience and remorse, very quickly comes forward once the moment arrives to accept responsibility for their part.

The preparedness of an offender to enter the witness box and give evidence in the trial of an alleged principal is also a matter which the law takes into account. I have remarked on earlier occasions that there can be a variety of reasons why people might adopt this course. Some of them are not at all attractive. They simply represent their own endeavours to avoid responsibility or minimise their own levels of responsibility. None of those elements appear to be present in the present situation at all and it is highly significant that you have undertaken to give evidence against your brother when, according to the material before the court, you have been concerned to protect him for many years. It cannot have been an easy decision.

As earlier remarked, I have no reservation about accepting the statement by your counsel that you have experienced a considerable measure of remorse and that over the years which have elapsed the matter has rested heavily upon your conscience. In this context it is important that you have conducted yourself as a responsible, hard-working person of good character throughout that long period and that you have never previously appeared before a criminal court. Specific deterrence can assume no significance as a sentencing consideration in your case.

I am conscious of the principles upon which a sentencer must act as set out in the Sentencing Act, without enumerating them, and specifically indicate that I am conscious of the guidelines contained in s.5. I am familiar with the range of penalties which have been imposed upon persons presented before the court over recent years for what are essentially offences of the same character although since the change in the legislative framework which has occurred since the commission of your offence they are defined in different ways.

Bearing in mind the seriousness of the offence itself, I consider that a sentence of imprisonment must be imposed, but having regard to all of those factors to which I have adverted, I am satisfied that the appropriate course to adopt would be to suspend the service of that sentence in its entirety. Accordingly, you are sentenced to imprisonment for a period of 18 months and I direct that the service of the entirety of that sentence be suspended and that the designated period of suspension be a period of two years.

HIS HONOUR: There is no declaration as to time served that is required.

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