R v Dutton [2010] VSC 107

3 Prior to that, this matter had been thought to have been a consent mental impairment, with the psychiatrist commissioned by the Crown preparing a report indicating that he was of the opinion that you, Mr Dutton, were suffering from a mental impairment at the time of the killing. This did not proceed as a consent mental impairment and the Crown obtained a report of a psychiatrist, from interstate, to support their view that you were not mentally impaired at the time.

4 Ultimately, the matter came on for hearing before me as a trial, commencing on 17 August of 2009. A "voir dire" was being heard in relation to the admissibility of the record of interview, when you indicated to your counsel on the morning of the fourth day of the hearing that you wished to address me directly. It was clear from your counsel's attitude that this was not something in which he wished to be involved, and, it appeared to me, to be against your counsel's advice that you had adopted this course. Be that as it may, it is a matter and was a matter for you, and you indicated to me directly, that you wished to plead guilty to this offence.

5 I need to add, as it is relevant, that in relation to the record of interview that was conducted between yourself and the police officers, whilst in your hospital bed, I did not find on the basis of the material put forward, thus far, that it was admissible. I invited the Crown to persist with the "voir dire", if they wished to establish before me, that I could rely upon it and the Crown indicated that they would not pursue that option. Accordingly, in relation to the material on which I make my decision, your record of interview with the police is not one of those items.

6 The offending to which you have pleaded guilty occurred in the following circumstances.

7 In January of 2006, Angelique Portelli came to work for you, when you were director of Gyrate Developments, a company which coordinated tenancies at shopping centres on behalf of the proprietors. Your main client was, in fact, Centro Properties. Your other directorship related to a company, D & C Design, which was involved in shop fit-out, for which you employed subcontractors. Ms Portelli came to you as the general manager of Gyrate, on a salary of approximately $80,000. She did some work for D & C Design Projects also.

8 Ms Portelli was approximately 31 years of age when she came to work for you, having been born on 21 January 1975. She was married and living with her husband, Dean Portelli. You were then aged approximately 60, having been born on 18 July 1946 and, shortly after her employment, you and Ms Portelli commenced an affair. That relationship, between you and Ms Portelli, continued up until the time of the offending.

9 You had a long-time business partner, a Ms Denby Lewis, who was based in South Australia. She had, at a later stage, become aware of the affair between Ms Portelli and yourself and became concerned about the salary being paid to Ms Portelli and the viability of the company, in supporting that payment. She was equally concerned about the impact upon your work performance, due to your relationship with Ms Portelli. There were significant discussions back and forth between yourself and Ms Lewis, recorded in telephonic and electronic form, wherein she stated consistently that the company could not continue to employ Ms Portelli. She expressed significant concern that the contracts relating to Centro, the main client of Gyrate Developments, were significantly at risk. She placed considerable pressure upon you to, in fact, remove Ms Portelli from her position as general manager of Gyrate. And on 22 June of 2006, your business partner sent you a retrenchment letter, that she had drafted, for you to give to Angelique Portelli.

10 It was clear that Ms Portelli was aware of the possibility of being retrenched from her employment, and she was in fact taking steps to organise other employment, seeking discussions with a former employer by the name of Bowden. It was apparent that Ms Portelli was continually trying to reassure you that even if her employment with you ceased, it would not mean the end of your personal relationship, that was something that would continue.

11 The prosecution in the Crown opening referred to a number of tensions in the relationship and in paragraph 10 of their opening stated:

In addition to the pressures on Mr Dutton and Ms Portelli the evidence indicates that Mr Dutton's feelings for Ms Portelli were deeply conflicted, on the one hand he was reluctant to end Ms Portelli's employment or the affair but he also expressed to a number of people strong mistrust of Ms Portelli.

12 It is clear, from reading the materials provided in the depositions, that you had a grave mistrust of Ms Portelli, which did not appear to be totally reasonable, but did appear to be genuine. I further accept, that you were equally deeply attached to her and, thus, "conflicted" would be a very good description.

13 All of that relates to the background of the offending. It would appear that on Monday, 26 June 2006, you and Angelique Portelli dined together, returned to your flat in Richmond and in the relatively early hours of the evening, went to bed. She getting into her pyjamas, which she kept there and you into yours.

14 For reasons that remain unknown, you woke, you went into the kitchen and you obtained a knife and returned to the bedroom, where you attacked Ms Portelli with the knife. She clearly awoke and fought back. She grabbed hold of the knife and managed to actually stab you twice, in what was referred to as your left flank. In relation to the stab wounds and incised wounds, Dr Burke who performed the autopsy noted, a total of 38 injuries to Ms Portelli, including defensive injuries to her hands, including two stab injuries in the neck area, a stab wound to the right upper chest and a stab wound to the thigh, just below the right buttock. Ms Portelli was also hit at some point with a lampshade, causing blunt force injuries to the head, with broken pieces of the lampshade being found in various areas on Ms Portelli's body. The cause of death, however, was strangulation, using the cord of the bedside lamp. Dr Burke was of the opinion, that the stab injuries occurred prior to strangulation, as did the blunt force injuries to the head, consistent with her being hit with the bedside lamp. The strangulation resulted in bilateral fractures of the larynx. It was estimated, the length of time for strangulation, was up to a minute. The scene in the bedroom, where this occurred, would be described as chaotic.

15 After Ms Portelli was dead, you left the bedroom and took an overdose of Diazepam tablets, which you had for your anxiety disorder. You ultimately composed a text message on your mobile phone, which, at approximately 6.19 in the morning, you forwarded to several persons, including, ultimately, one Alan Thomas, a business associate and a friend. That message read: "Tell to check red computer under personal on kitchen table. It's all there both dead." The spelling indicated quite clearly that you were, by that stage, already affected by the overdose of drugs that you had taken.

16 When Mr Thomas awoke and saw the message, he went to your apartment in Richmond, arriving there approximately at 9.30. Ms Dhanh Huynh, an employee of yours, also attended at approximately the same time. Mr Thomas entered your apartment, through an open sliding door leading into the Master bedroom, where he found you unconscious on the bed and Ms Portelli dead, on the floor beside the bed.

17 The cord, from the broken bedside lamp, was still wrapped around Ms Portelli's neck and a hammer was resting on her hip. You were taken by ambulance to the Alfred Hospital, where you were unconscious for several days, until the 30th of June when you awoke in the ICU and said to the nurse, "I feel terrible I killed Angelique".

18 As I indicated, this was the second trial, the first having been aborted in August of 2008, and the issue in the trial was intended to be, one of mental impairment. After you were arraigned and before the plea, the following statements were made,[1] Mr Van de Wiel stated:

If your Honour pleases its just time to fix the plea hearing date. Unfortunately I'm not in possession of an instructor at the moment but I think the difficulty is going to be to fix a date because even though there is no issue between the Crown and us that Mr Dutton was in a state of depression at the time of the commission of this offence and that there is no issue but that he was certainly very affected by that state. Your Honour might want to hear some evidence about that. For that reason I seek to confer with a psychiatrist or two and I'm not sure when they're available. I'd be obliged if we might put this off for a month.

Your Honour would it assist the court if perhaps Mr Van de Wiel - the Crown concedes that the principles in Verdins case apply. Further I have a letter which is Exhibit 11 on the plea which is from the Office of Public Prosecutions addressed to your instructing solicitor, Ms Daniella Markotic, which states the following in substance:

Thank you for your letter of 19/10/08 containing a "without prejudice" offer on Mr Dutton's part to plead guilty to manslaughter.

The offer is not accepted but we make the following points:

(a) Were Mr Dutton to plead to murder the Crown would agree that the sentencing range should be at the lower end of the spectrum taking into account his plea, absence of priors, his age and the application of the sentencing principles expounded in Verdins and Tsiaris;

(b) The difference between the appropriate sentencing range for "high end" manslaughter and "low end" murder may not be that great and we would be happy to discuss this aspect with you further. Given the recent decision of MacNeil-Brown the Crown could assist the sentencing judge with a submission as to the appropriate sentencing range for murder. "

19 They are relevant matters to the sentencing process that I have to undertake, and I will take the contents of those discussions, and that letter, into account in determining the appropriate sentence. I accept that in certain situations the difference between the two sentences may not be significant.

20 Equally in this case, I have received three victim impact statements, being one from Angelique Portelli's husband, Mr Dean Portelli, one from Robyn D'Agostino and Domenic D'Agostino, Angelique's father.

21 Angelique Portelli was one of three children. She had an older brother Joseph and a younger sister Natalie. On February 14, 2003 her younger sister Natalie died, after a battle with leukaemia, at the age of 24. There is no doubt that the death of Angelique has affected each of her parents, in a dramatic and on-going manner. Both parents were very close to Angelique and the loss of their second, beloved daughter, must be in some aspects, unbearable. No one can ever bring their child back. Nothing I do, in the way of imposing sentence, can assist and whatever sentence I impose upon you, in no way reflects the value or worth of Angelique as a daughter, a sister, a wife or any other role, that she had in this world. I can only hope, that with time her family and loved ones, will remember her with love, for the joy that she brought into their lives, rather than the pain of her going. There is no doubt, that you have caused great grief to her parents and to her husband, by the senseless, pointless taking of her life. This is a factor that I have to take into account and I will take into account, when imposing sentence.

22 In respect of her husband's victim impact statement, I will take it into account, in that, clearly he has lost someone he cared about and whilst she may have been in a relationship with you, at the time, she was still in a relationship and living with her husband, and he had horrendous tasks to perform following her death, things that you wish upon no person at any time of their life.

23 I have a number of reports from psychiatrists, including reports from Dr Anthony Cidoni, Professor Graham Burrows and Dr Lester Walton.. I have read and considered the contents of all the reports that I have received. I will deal with your psychiatric history, to a degree, as I deal with your history as it is intermingled with your personal history.

24 You were born and raised in Adelaide, attending a CBC primary school and then technical school to the age of 15. Your education ceased, as you were injured in an accident and hospitalised for a lengthy period of time, resulting in your missing out on your education. You initially began your employment, with Chrysler Australia, in the spare parts department and you ended up being promoted to the position of buyer, for a period of some years. You then went to work for Harris Scarfe, the retailers, for a period of some 28 years, until it went into liquidation in 2001, and your employment was terminated by the receivers. You had started in a relatively lowly position at Harris Scarfe and you ended up in a senior position, having responsibility in respect of, property and operations management, shop construction and fit-outs, and for store openings across Australia.

25 You married at the age of 21, a woman by the name of Ann Lee and had two sons. You and your wife divorced after five years. You had a three year relationship, subsequent to that, with a woman by the name of Dai and a six year relationship, with a Ms Felton, which ended in approximately 2000 when you were aged 54.

26 Your father had died when you were two years of age. Your mother is still alive and I have received a reference from her, which is an exhibit on the plea.

27 You first received psychiatric treatment from a Dr Taylor in 1987 who diagnosed a mixed depressive illness and prescribed antidepressants, Tophrynol, and the anxiolytic, Alprazolam. You attended on Dr Taylor for approximately three years. This initial episode was triggered by the end of a relationship, according to your psychiatric history. You had relapses in 1992, 1995 and 1997. The 1997 relapse again being triggered by a relationship break-up.

28 As indicated, your employment with Harris Scarfe ceased in 2001 and you attempted suicide at that time; first, by carbon monoxide poisoning and then by asphyxiation with a plastic bag. You were described as being in a depressed mood, suffering social withdrawal, insomnia and reduced appetite. Once again you were prescribed Alprazolam in April of 2001. Your family assisted you, at that stage, in overcoming or reducing your depression and anxiety and, subsequent to that, you moved to Perth. You became the manager of the Perth division of Optim Projects for a period of nine months, until it also went into receivership and you were once again retrenched, in February of 2002. You were described as having a further relapse at that time, suffering from depressed mood, suicidal ideation, withdrawal and panic attacks. You were prescribed Alprazolam, which you took until June of 2002. After you had been retrenched, you entered into a downward spiral of depression and your sister's intervention was required. She sent the police around to your premises, and ultimately, they were able to get you back to Adelaide, where you were treated for your significant depression and anxiety. You ultimately established your own company, started working with the Centro Property Group and relocated to Melbourne. A company office was maintained in Adelaide, with your business partner, to whom I have already referred. The business was, in fact, successful despite your anxiety, that it was continually failing. You were described as, relapsing again in 2006, but continued on without seeking help, as you wished to avoid being prescribed Alprazolam.

29 In respect of your children, you have two boys named Darren and Duane, from your marriage to Ann Lee. When you separated from their mother, the child Darren expressed a desire to live with you which occurred, so that, as a result, Darren lived with you and Duane lived with his mother. The children often spent the weekend together, usually in your company. You have two grandchildren, your son Darren, is a trained fitter and turner, who worked at Mitsubishi for more than 20 years, until it ceased to exist. He retrained as a truck driver and is now a long-distance truck driver. You other son Duane, is completing his studies as a paramedic in the ambulance service.

30 As indicated, earlier in 1996, you commenced a relationship with a woman by the name of Debbie Felton, with whom you became very involved, including involved with her children. That relationship broke up in the year 2000, but she was one of the persons to whom you sent an SMS on the night of this murder.

31 Whilst you were living in Melbourne, you met a Chinese family and you lived for a short time with them, until you obtained your apartment. The daughter of that family, Kathy Prentice, had moved into the apartment to share the apartment with you, staying in the second bedroom, she was a student. The relationship you had was one of friendship. Ms Prentice had moved out of the apartment ,approximately a week before this murder occurred, having previously married. She had a calming influence upon you and could help you to face the day in a calm and organised manner. She and her husband were concerned about you, and discussions were being held, about you moving to share premises with them.

32 Your sister gave evidence on the plea - Judith Eckhard from Pukehina Beach, Bay of Plenty, New Zealand. She told me, that your mother is now 96 years of age and that you have a very close relationship with her. She described how, you would do the best you could, to look after your mother. No matter where you were in Australia, you would fly home every second weekend to see her, take her out, make sure she was comfortable. You took her on trips overseas and throughout Australia. She described your mother, as being the pivot of your life. Your mother still lives on her own and is independent and cooks her own meals.

33 When your father died, you were very young, and your mother took over and ran his business. She gave evidence of the fact that when you were young, you were always very dependent on being close to your mother and near her physically. She remembers you screaming, if you were left in the car, whilst your mother went into the shop. She described you as needy, needing to be approved of and to be cared about. She explained about your children, although being brought up independently of each other, as earlier described, they would be together on the weekends and how you had them involved in surf lifesaving.

34 You were involved in two incidents of serious ill health, the first, being hit by a car while still and school and the second in 1978, when you were involved in attempting to save a woman, who had jumped off a pier in Adelaide. In the course of doing that, you broke both legs and shattered one ankle, extremely badly. You were hospitalised for three months, in respect of that and your sister gave evidence that, you nearly lost one of your legs. An operation to rebuild that ankle, was one that was undertaken via video link from America, as it had not been performed here earlier. You were a long time recuperating after release from hospital and you have had many follow-up operations, in respect of the replacement of your ankle. It was believed that you incurred a staph infection to the ankle and in 1986, after various infections had eaten into the bone and destroyed it, an artificial ankle had to be removed and a new ankle had to be fitted.

35 Your sister indicated that after you had been arrested, she cleaned your apartment and found in various places, some 40 bottles of the medication called "Kalma", which she tipped down the toilet. She talked about your expressed remorse for what you have done to the family of Angelique Portelli, together with your concern about the ordeal that you have been putting them through. You are also concerned about your mother and what you have put her through. Your sister finally indicated that, you seemed to have a clear knowledge of what you had done, not a clear understanding of why you had done it.

36 Professor Burrows gave evidence before me on 13 October 2009, at which stage he said, he believed you were currently psychotic. Mr Jeffrey Cummins, psychologist, also gave evidence at that stage, about him having spoken to you on that day, at the lunch-break and that you were, in his view, hallucinating. Ultimately, Professor Burrows arranged, through Dr Bell, to have you admitted to the Thomas Embling Psychiatric Centre for assessment and evaluation as to your status, particularly, as to whether or not you were psychotic.

37 I subsequently received from Dr Douglas Bell a report dated 22 November 2009 in respect of you. Dr Bell had available to him the psychiatric report by Dr Shannon Reid dated November 2007, the psychiatric reports by Professor Burrows dated 8 January 2009 and 20 August 2009, the psychiatric report by Dr Anthony Cidoni dated February 2008, the psychiatric reports by Dr Lester Walton dated 4 September 2007 and 15 October 2007 and a letter from Mrs Kath Day dated October 2009 addressed to her Honour Justice King, as well ability to discuss your case with Dr Kevin Ong a Forensicare Consultant who had been dealing with you during your period on remand at Metropolitan Remand Centre.

38 You were admitted as a security patient from the 4th to the 19th of November 2009 at Thomas Embling Hospital. You were interviewed by Dr Bell and various other staff members during that time. You were also administered a comprehensive range of psychological tests by a clinical psychologist Dr Meera Aurora. Dr Bell found:

There was nothing in Mr Dutton's history indicative of any past symptoms of any form of psychotic illness.

Regarding his current mental condition the following observations may be made:

1. There is no evidence of a psychotic illness such as schizophrenia or delusional disorder.
2. There has been no indication throughout this admission of any pervasive depression, of effect, nor expression of depressive cognitions other than to indicate that at times he sees no future for himself. He indicates that at times he has contemplated suicide but insists that he would never do this because of the effect it would have on his elderly mother. He is not demonstrating any signs of a current depressive illness.
3. There has been no evidence of panic attacks or other clinically significant anxiety disorder.

He then gave examples of two types of continuing interaction that you described with Ms Portelli. The first, relating to voices and the second, relating to physical observation and he continued:

It is difficult to know how to interpret this account. It is not indicative of a psychotic illness. It is recognised that occasionally individuals who are grieving the loss of someone to whom there has been a very deep and close attachment over a long time may report transient visual and auditory hallucinatory experiences. These are sometimes interpreted as representing a continuing sense of emotional connection between the departed loved ones and the bereaved who is in a state of profound mourning.

At times throughout his admission Mr Dutton reported feelings of sadness, loss and a longing to be reunited with Ms Portelli and the interview was occasionally tearful. In contrast his overall presentation on the ward across the two weeks was of someone who was in a generally calm and amicable frame of mind, not of someone in a sustained and profound state of mourning.

There was no indication for any specific ongoing psychological treatment in relation to this. In conclusion Mr Dutton has a history of clinically significant depression and anxiety that was documented by psychiatrists who saw him earlier in his incarceration and which also appears to have been present at the time of the offence. He is not currently demonstrating any signs of depression, psychosis or other clinically significant mental illness that requires further psychiatric intervention. Given his past history it is appropriate that he continue treatment as an outpatient with oral antidepressant medication through prison-based psychiatric services.

39 There were also character letters written on your behalf which I have taken into account. I have been referred to a number of authorities in respect of persons suffering from mental health issues at the time of offending. A number of those authorities impose significantly reduced penalties.[2]

40 There is no doubt that you have suffered from chronic depression for a long period of time, equally, it is a factor that has contributed to you murdering Ms Portelli, and it is a matter that I can and do take into account. As conceded by the crown at the beginning of this plea, the sentencing principles expounded in Verdins and Tsiaris have application in this matter. Further, I accept that the time you will spend in custody will be more onerous as a result of your ongoing depression.

41 I take into account your plea of guilty, the serious indication of remorse contained within that plea, which I accept, your age, your lack of prior convictions and your significant mental health issues as earlier explained. Equally, I also need to, and do, consider the impact of this offence upon the loved ones of Ms Portelli, the need to impose a just and appropriate punishment, the denunciation of the conduct, and the need for both general and personal deterrence, significantly and appropriately modified as it must be for your mental health issues.

42 For the offence of murder of Angelique Portelli - you are convicted and sentenced to be imprisoned for 16 years. I direct that you are to serve a minimum of 12 years imprisonment before becoming eligible for parole.

43 Pursuant to Section 6AAA, I declare that the sentence I would have imposed but for your plea of guilty and your expression of remorse, which I find I cannot separate on this occasion, would have been 20 years with a minimum of 16 years.

44 I declare that you have spent 1,423 (one thousand four hundred and twenty-three) days in pre-sentence detention and such should be noted in the record of the court.

45 Application for the retention of Forensic Sample 464ZFB(1) is granted.

[2] R v Thomas John Sebalj [2006] VSCA 106. Murder, 12 years with a nine year minimum.

R v Farren Deacon Badenoch, Coldrey J, [2002] VSC 340, 14 years with a nine year minimum.

R v Ian Lesley Brown [1999] VSC 282 Hampel J, 14 ½ years with a minimum of nine ½ years.

R v Benjamin Craddock [2004] VSC 397, Smith J, 14 years with a minimum of eight.

R v Tracey Jane Curzon [2001] VSC 140, Bongiorno J, 12 years with a minimum of nine.

R v Millicent Cumberbatch [2002] VSC 382, Flatman J, 15 years with a minimum of 11 ½ years

R v Michael Thomas Della [1999] VSC 540, 12 years with a minimum of eight years.