R v JPD [2001] VSC 204

Supreme Court of Victoria|2001-06-08|Before: VINCENT, J.

JPD. The jury empanelled in the trial at which you were presented on a count alleging that, at Frankston in the State of Victoria on the 28th day of September 1999 you murdered an elderly woman named Jean Elaine Downing, has found you to be guilty of that crime.

In consequence, it is now my responsibility to impose sentence upon you.

The background to, and circumstances surrounding, the commission of your offence need only be described in brief detail at this stage.

It appears that in the period leading up to the death of your victim, both your life style and emotional state were becoming increasingly unstable. You had been residing with your family in the Frankston area but as a consequence of a number of factors had left the family home. I will return to this aspect a little later.

For present purposes, it is, I think, sufficient to state that by Monday 27 September, you were at the age of 15 years and 8 months, immature, homeless and apparently without any sense of direction in your life. On that day you went with some friends to a swimming pool at Dandenong to meet some young females with whom contact had been made on the Internet. In due course they returned with your companions and yourself to Frankston. You associated yourself with one of them in particular. She, it appears, for reasons which have not emerged, was also unhappy with her life situation, and by the end of that night the two of you decided to run away together to Queensland. You had $200 in a bank account which could be used for this purpose and which you withdrew during the following day.

Whether or not your new girlfriend may have been aware of your intention does not emerge from the evidence. But it appears to be clear that at some stage you decided to steal a car to make the journey. I need not set out in detail the history of the subsequent hours, but at around 9.40 on the night of 28 September, you walked to the home of Mr and Mrs Wolfenden in Murawa Street, Frankston. You were aware that the house was occupied by an elderly couple who owned a motor car that you considered to be suitable for your purposes, as your family had previously resided next door. I reject your subsequent assertion that these proposed victims were not specifically selected. They were undoubtedly chosen because you regarded them as vulnerable and highly unlikely to pose any physical risk to you.

The plan that you devised to secure their vehicle was relatively simple. It was your intention to gain entry to the house by knocking on their front door or ringing their doorbell, and then informing the occupants that you had observed some young persons going into their backyard. You would then offer to investigate for them. Once inside, by the employment of threats or physical force, they were to be overborne and the car would be taken. The plan went awry, however, when Mr Wolfenden, responding to your presence, spoke to you through a closed external security door, thanked you for the information, and indicated that he would deal with the matter himself.

At this point, I consider that I should make some reference to your claim that you were not alone at the time and your assertion that it was one of two companions who went to Mr Wolfenden's front door. Shortly after the death of Mrs Downing, when interviewed by investigating police members, you provided a version of events according to which you had gone to the house of Mr Wolfenden with two other persons who had, in effect, persuaded you to become involved in a car theft and in which you played only a relatively minor role generally in the events of the night and, for practical purposes, no role at all in relation to the fatal assault upon the deceased.

You supplied the name of one of these alleged companions and some identifying material with respect to the other. Subsequent investigations revealed that each of the young people to whom you had directly or by implication referred had been deliberately inculpated in the commission of the crimes of robbery and murder when you were, of course, well aware that they were completely innocent. You attributed behaviour to them of the most callous kind and attempted to increase the level of plausibility of your fabrication by the insertion of layers of fictional detail. The individual whose name you provided had attended the same primary school as yourself for some time and had had the misfortune of coming to your attention when you encountered him on a train in early 1999 and he had offered to assist you to find work.

Many months later, only a matter of a couple of weeks before your trial was scheduled to commence and, importantly, after you had become aware that your assertion of the involvement of these young people was not sustainable, you indicated that you desired the opportunity to make a further statement and that you wanted to provide what you claimed would be the truth about what took place. A further interview was duly conducted in which you substituted two other young people as your companions and otherwise adapted your version to address aspects of the evidence that had emerged after your initial interview, and which had presented problems for you, to incorporate pieces that you perceived could be utilised to advantage, and to deal with potential issues that could be seen to possess relevance on the basis of your increased awareness of the law of criminal complicity. Essentially you attempted to distance yourself further from the actions which resulted in the death of Mrs Downing and to render more plausible your description of events. You claimed, as they were your friends, you had not wanted to involve them in this extremely serious matter.

Although I am conscious of the description given by Mr Wolfenden of the person who came to his front door, and the evidence of another witness, Lynette Reese, who stated that, some three weeks later and during a church counselling session, she recalls seeing three young men at the front of Mrs Downing's home on that night, I consider that it is highly unlikely that there was any other person involved at all. I reject your assertion that you deliberately misled the police in order to protect your friends as highly implausible in the circumstances.

Whether or not that view is correct, on the basis of your own version, you set out with two companions, all three of you being armed with wooden garden stakes, to commit the crime of armed robbery, and you were prepared to employ physical force to achieve your objective. Relevant to the possibility that anyone else was implicated, I observe that only one stake was subsequently recovered.

After your attempt to gain entry to the home of Mr Wolfenden was frustrated, you observed Mrs Downing returning home in her car after visiting members of her family. As she resided some distance along Murawa Street from the house in which your family had lived, you may not have been acquainted with her. In any event, it is clear that she was correctly perceived by you as an extremely vulnerable victim. You followed her to her home and, using the same technique that had earlier been adopted, she was persuaded to admit you to the premises.

Precisely what then took place cannot be determined with certainty. I consider that it is reasonable to infer that your description of events, which is on its face inherently unsatisfactory, was rejected by the jury. It is clear, however, that Mrs Downing, who it must be remembered was almost 80 years of age, was attacked with considerable savagery. Dr Burke, who conducted the post-mortem examination, attributed her death to the receipt of 24 puncture injuries positioned diagonally across her chest. They were consistent with two applications of the two pronged barbecue fork produced in evidence. Mrs Downing also sustained a number of abrasions and bruises, the fracture of a facial bone, the tearing of muscles in the face, which was associated with extreme bruising at the left, right and front of the scalp, and what was described by Dr Burke as a patchy subarachnoid haemorrhage. She suffered chipping of the upper jaw and tooth damage, bruising of the muscles of her neck and a fracture of her voice box. It appears that the face of your victim had been stomped upon, as the imprint of a sole of a shoe was observable upon it. There can be no doubt whatever that whoever inflicted those injuries was determined to murder Mrs Downing.

The crime of murder which you committed is for practical purposes the most serious known to our law and your conduct constitutes a very serious example of it. Not only was the death of your victim occasioned by the commission of an extremely violent attack upon her, but it took place within her own home, to which she had admitted you on trust. It occurred in the course of a planned armed robbery, upon a person who was selected by reason of her age and vulnerability, and which was carried out for no better reason than your desire to secure her motor vehicle. Whether or not others may have been involved, there would seem to be no doubt that it was you who wanted that car, and I observe that you were the only person seen in it by witnesses who encountered you after these events.

Even a moment's thought would reveal that there are a number of circumstances of aggravation associated with your crime. Your level of culpability, allowing for your age, which is an important consideration in this context for as a young offender you cannot be attributed with the insight and maturity of an adult, must be regarded as high.

I have read the victim impact statements made by members of the family of the deceased and the mother of a young person who you falsely accused of involvement in your crime. Yet again I have sensed the terrible and continuing distress which such conduct can produce. As I have remarked on a number of occasions, victim impact statements serve to ensure that sentencing judges remain acutely aware of what can be properly described as the human or personal impact of crime. They have certainly done so in this case.

The Court must, on behalf of the community which it represents, express the condemnation of that community of conduct of the kind in which you have engaged and, through the sentence imposed, attempt to deter others from so acting. There is, I am satisfied, an understandable and evident concern in our society in relation to the selection of elderly persons as victims of violence. Physical infirmity must never be perceived as increasing the risk that a person will become the subject of criminal assault. The courts have a role to play through the sentences that they hand down upon perpetrators in this area. Briefly expressed, they must indicate with crystal clarity that cowardly attacks upon, or the exploitation of, such vulnerable people will simply not be tolerated.

I am of the view that the principle of specific deterrence should also be taken into account as a sentencing consideration in your case. You appear to have experienced little, if any, sense of remorse in relation to your conduct, and your ready preparedness to avoid acceptance of your personal responsibility for it, which manifested itself in the making of totally false allegations of involvement against others, does not augur well for the future. Nevertheless, you are very young and, with increasing maturity, the situation may well change and you may develop greater insight into, and understanding of, the significance of what has happened. You have the prospect of many years of life ahead of you and your eventual reintegration must be accorded great weight in the determination of an appropriate sentence.

Turning to your personal background, you are now aged 17 years, having been born on 11 January 1984. Your parents ceased their relationship before you were born and your mother subsequently entered into a new relationship with another person which has persisted to the present time. You have grown up within that family unit and, until the age of 8 years, you believed that your step-father was your biological father. I understand, however, that your biological father had access visitation rights and that he has always had some involvement in your life.

You claim, possibly truthfully, and possibly in order to shift responsibility from yourself, to have experienced considerable physical abuse at the hands of both your mother and step-father from quite an early age. I am not able to make any assessment on the basis of the material before me of the truth or otherwise of these allegations. However, I note that there were at least three reports to child protection workers over the years and in relation to which some investigations were conducted. It does not appear that any were substantiated and, significantly, your biological father has indicated that he was not aware of any suggestion of abuse. This aspect of your history is troublesome and provides fertile ground for the seeds of speculation, but little else.

It is clear that the relationship between your mother, step-father and yourself had been deteriorating over a long period prior to the time of the commission of your offence. The writer of the pre-sentence report provided to the Court refers to increasing conflict and tension associated with a number of behaviours in which it has been reported that you engaged. These included alcohol use, truancy and disruptive behaviour at school, the commission of petty offences, and aggressive and defiant behaviour in your family home. It appears that, following arguments with your parents concerning your associations and conduct in the school holiday period in September 1999, you left the family home between 21 and 24 September and again shortly prior to the commission of your offence.

According to the pre-sentence report, your school history was marked by disruptive and violent behaviour from your primary school years and, from the perspective of the various school administrations who were involved at both primary and secondary school level, you were viewed as constituting a management problem.

You have been drinking alcohol from about the age of 10 years and smoking marijuana from the age of 12 years. You claim that you were intoxicated on the night on which you committed your offence and I accept that you may well have consumed some alcohol. Not, I should add, sufficient to affect significantly your level of understanding or your capacity for directed action.

You have now been detained in the Melbourne Juvenile Justice Centre for approximately 20 months and throughout have demonstrated a continuing level of instability. This may, in part, be explained as a product of the tension that you must have felt whilst you have been awaiting trial and then sentence, but it is also consistent with your earlier behaviour, and suggests that you are of violent disposition and possess poor impulse control.

However, you have also participated in a number of educational and other programmes. This must be taken into account in your favour.

I have had regard to the sentences imposed in the courts over recent years upon young persons who have been found guilty of the commission of the crime of murder, bearing in mind that they can provide only general assistance.

Ultimately, I am confronted with a situation in which a violent and unstable young person has committed a truly dreadful crime. The task of incorporating the relevant sentencing considerations into a proper sentence is seldom simple in any case. I have found it to be particularly difficult in yours. Included in the matters which have troubled my thoughts over recent weeks is an appreciation gained from many years of experience in this area of the potential for institutionalisation and the hardening of already present anti-social traits which can be associated with a long period of incarceration being undergone by a young offender. That could be a matter of concern in your case and impact upon your prospects of rehabilitation.

The sentence that I have determined as appropriate is, by reason of your age and immaturity, and in order to maximise your prospects for initial successful reintegration into the community, significantly less than that which would have been imposed upon an older individual. But I have also decided that it must, as a matter of law and justice, nevertheless, be substantial.

You are sentenced to imprisonment for a period of 16 years. I fix a non-parole period of 12 years. I declare that the period of 618 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed.

I direct that this declaration and its details be entered in the records of the court.

Based upon your age, vulnerability, impressionability and prospects of rehabilitation, you have been assessed as suitable for detention in a Youth Training Centre. A report prepared by a psychologist from the Adolescent Forensic Health Service, with which I have also been provided, contains the further assessment that you would present an extreme suicide risk at this stage if you were imprisoned in the adult penal system. For these and a number of other reasons, I consider that it would be highly inappropriate for you to be required to serve your sentence in the adult system at this time and, accordingly, recommend that a transfer of your custody should be effected pursuant to s.244 of the Children and Young Persons Act.

At a glance

Court

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Before

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Judgment (32 paragraphs)

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