R v Lane [2003] VSC 180

8. She had been living for many years at 4 Pamela Court Frankston . Michael Lane was living with her at that address and had been living there following his release on parole in 1995. He was at the time unemployed and studying part-time at the local TAFE.

11. At 6.50pm on 5 July 1998, an Intergraph operator received a phone call from Michael Lane on the emergency number, 000. He rang from 4 Pamela Court Frankston. He told the operator that he had just arrived home and found his mother deceased on the hallway floor. He also stated that "the bedroom window is smashed and it looked suspicious". The police arrived shortly afterwards and found Michael Lane sitting on a chair in the garage at the rear of the house.

14. On the following day, 6 July 1998, and after the post-mortem, Michael Lane was interviewed by the police. He said that he had gone to the Grand Hotel at about 12.30pm to 1.00pm where he had played his favourite poker machine for about three hours until he ran out of money and decided to leave. He told police that he arrived home at about 4.00pm and walked inside . He said he saw his mother standing in the kitchen making a cup of tea. He said she had placed two biscuits on a plate to eat with her tea. It was apparently her usual practice to watch the football replay on Channel 7 every Sunday. During the break between games she always made herself a fresh pot of tea and drank it with two biscuits. He said that she went into the lounge-room with the tea and biscuits to continue watching the football. He went out into the garage to smoke a cigarette, he not being permitted to smoke inside the house. He told police he also drank some wine. Approximately 15 to 20 minutes later he said he became bored and went back to the Grand Hotel to play the gaming machines. He said that he played the same machine and spent between $50 and $60. He returned home, entered the house and he observed his mother lying deceased on the floor near the kitchen. He said he phoned a friend, Gail Evans, and his brother Bruce and told them that he had found his mother deceased on the floor. He then phoned Intergraph. It is to be noted that during the police interview, he said that he did not know anything about a broken window.

17. The police have not been able to establish an exact time of death. From an analysis of phone records and interviews, however, it would appear that the deceased was alive at 11.44am and deceased by 4.49pm. From security cameras at the Grand Hotel the police were able to establish that Michael Lane left that venue at 11.30am and returned at 5.30pm. This contradicted his account of his movements which placed him at the hotel for most of the relevant time.

20. The police also investigated the premises at 4 Pamela Court. A large window of the deceased's bedroom was broken. It had been smashed from the outside. The broken window was large enough to allow a person to enter the room but there was no evidence that that had occurred. In particular, notwithstanding the wet and muddy conditions outside and the fact that the house was approximately 100 metres from the front of the property, there was no mud, dirt or moisture on the carpet. There was also no evidence of anyone attempting to force open a window or door. Nothing was stolen from the premises. Clothes had been removed and thrown on the floor. The top drawer had been removed from a chest of drawers and thrown on the floor. The remainder of the room was untouched.

23. The investigation was protracted. Establishing the movements of Michael Lane from the hotel security cameras proved to be very difficult and time-consuming. He was re-interviewed on 25 March 1999. He was eventually arrested on 22 May 2002 and charged with the offence. His committal occurred in December 2002 where he pleaded not guilty. On his own initiative, however, at a preliminary hearing on 1 April 2003, he pleaded guilty.

26. On the issue of motive, the Crown draws attention to the fact that he owed his mother some $42,000 and that there was some friction in the relationship with his mother. He has apparently complained that she did not forget the past and that she criticised his drinking. It appears that he has had drinking and gambling problems.

29. Turning to his history, he was born on 9 July 1955. His father was a printer. He was the second of three sons. In 1959 the family moved to the Pamela Court property. In 1967 at the age of 12, he was examined by psychiatrist because the family suspected that he was gay. His father regarded being gay as an illness. He went to school at Peninsula Grammar School. In about 1971, however, he left school aged approximately 15 years and went to work for his father.

32. In 1973 he was fined in Sydney on a charge of offensive behaviour. In 1978 he was fined $100 on a burglary charge at the Frankston Magistrates' Court. In that same year, he was charged with murder. A male lover was found dead in the bath with an injury to the back of his head. The deceased had taken Mogadon. Michael Lane was held in custody for eight months before he was acquitted. On his acquittal, his mother took him for a weekend to the Murray River. There, while walking he was struck by a car and severely injured, suffering head injuries and fractured legs. He was confined to a wheelchair for 2½ years.

35. In 1981 he bought a house in Boronia. Shortly afterwards he was charged with the murder of Leon Parmac. Parmac had gone with Michael Lane to his house for sexual contact. Michael Lane claimed that Parmac went berserk through the combination of drugs and alcohol and wrecked the house. He said he struck Parmac over the head with a champagne bottle. He was tried and convicted of murder before Brooking J. He successfully appealed in 1983 and a re-trial was ordered. At the first re trial, the jury could not agree. At the second re-trial before Southwell J. he was convicted and was sentenced to life imprisonment, that then being the penalty.

38. In 1989, following legislative changes, [1] he applied for the fixing of a minimum term. He was interviewed by Dr Bartholomew whose opinion was that Michael Lane was very disturbed, temperamental and unco-operative. He apparently gave a diagnosis of borderline personality disorder. Michael Lane was also examined by Dr Walton. His opinion was that Michael Lane was free of any psychiatric disorder involving mental illness or personality disorder but described instability of mood as a striking feature. He doubted Dr Bartholomew's diagnosis of borderline personality disorder. The application for a minimum term was successful and a minimum term of 11 years was fixed.

41. In 1995, Michael Lane was released on parole and, as noted above, went to live with his mother at Pamela Court. His parole officer has been Warren Dunn. He also has received psychiatric treatment from Dr Glasser.

44. In early 1997, he received a suspended sentence for theft of some cigarettes, stolen when he had been drinking and was out of money. His parole officer directed that he undertake a stress management course.

47. It appears that he has continued to have problems with drinking and gambling.

50. Counsel for Michael Lane frankly conceded that he was somewhat handicapped in making submissions by the fact that his client was unwilling to speak about what occurred on 5 July 1998. As a result he is unable to comment on the circumstances of the offence. I note also that no material has been placed before me in the form of medical or psychiatric reports by Michael Lane. His counsel cannot advance any argument suggesting genuine remorse and understandably did not attempt to do so.

53. So far as a penalty is concerned, Michael Lane does not dispute that a head sentence of life imprisonment, requested by the Crown, should be imposed. It is also common ground that such a sentence should be directed to be served concurrently with the existing life sentence. That assessment is plainly correct but will require a direction to that effect.[2] What the accused seeks is the fixing of a minimum term. His counsel argued that a minimum term that would see him eligible for parole at about the age of 60 would be appropriate. Counsel for the Crown did not argue that a minimum term could not be fixed in this case but argued that the circumstances are such that it would be open not to fix a minimum term and that, if one was fixed, it would have to be substantial.

56. Counsel for Michael Lane emphasised that under the relevant provisions of the Sentencing Act 1991, the onus of proving that no minimum term should be fixed rests with the prosecution. He also pointed to the fact that Michael Lane has pleaded guilty and did so on his own volition to a circumstantial case against which, counsel argued, he may well have succeeded. He also drew attention to the difficulties that have been and will be experienced by Michael Lane in prison because of his homosexuality and apparently effeminate manner. He has been kept in protective custody for that reason. His counsel emphasised his problems as a gay young man, his time in custody between his 20s and 40s, his inability to gain employment, his gambling and drinking problems. He argued that his life had been wasted, a life of loneliness and misfortunes. He said that he has also had this matter hanging over his head since 1998 because of the delay in investigation and prosecution. As to the offence itself, he said it should be held that it was spontaneous and any attempts at concealment were amateurish.

59. His counsel referred me to analyses of penalties for murder and argued that this offence came within the middle range.

62. Counsel for the Crown submitted that this offence was a very grave example of the offence. Michael Lane had killed an elderly frail woman by manual strangulation. Further, she was his mother. He drew attention to the fact that Michael Lane had previously been convicted of murder. He submitted that while care had to be taken not to punish him twice, the previous convictions increased the culpability of the present offence. Counsel argued that the most charitable explanation for both killings was that they were committed in anger. He submitted that the present murder had occurred at a time when Michael Lane had support from a parole officer and a psychiatrist and had been referred to a course in stress management. He argued that this raised grave concerns for the protection of the community and was relevant to the issue of rehabilitation.

65. In sentencing Michael Lane, it must be borne in mind that he comes within the Serious Offender provisions in the Sentencing Act 1991[3] as a "serious violent offender". In those circumstances, the sentencing task is to be undertaken on the basis that the protection of the community from the offender is the

"principal purpose for which the sentence is to be imposed"

and that to achieve that purpose a sentence may be imposed.

"longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances"

71. In deciding whether to fix a non-parole period and, if so, the length of it, I proceed on the basis that any period, if fixed, is to be fixed as the minimum period of imprisonment to be served having regard to all the circumstance of the offence, and any mitigatory circumstance, and that a purpose of fixing a parole period is to assist the prisoner's rehabilitation.[4] It is also relevant to bear in mind that there are public benefits that can flow from the fixing of a non-parole period. Dawson, Toohey and Gaudron JJ have identified two "significant and valuable consequences".[5] The first is said to be that "the prisoner is likely to be better behaved while in confinement". As to the second it is said that:

". . . a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self-respect and to enjoy some real prospects of eventual rehabilitation."

"In the harsh context of a prison environment, the potential advantages - in terms of hope, self-esteem, incentive for reform and rehabilitation - which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated."

Their Honours went on to point out that the fixing of a point at which a prisoner may be released on parole also enables the parole authorities to address issues that may arise on compassionate grounds - for example, where a person has become eligible for release on parole and is terminally ill. Their Honours pointed out that this will only operate in exceptional circumstances commenting that:

"An inability on the part of the authorities to take them into account at all may devastate an individual and brutalise the prison system. It is a real benefit of the parole system that it enables some compassion to be exercised, if necessary, when a prisoner has reached the stage of eligibility for release on parole."

It should be emphasised as was done by Dawson, Toohey and Gaudron JJ in Bugmy v The Queen[6], that the punishment imposed upon the prisoner will remain one of imprisonment for life and that if at the expiration of any non-parole period, the prisoner's attitude and behaviour were unchanged, he could not entertain any prospect of being paroled.

80. Turning to specific matters, the offence in this case, although showing little premeditation, was a very grave example of the crime of murder. Further, Michael Lane having previously murdered, and being on parole at the relevant time, has shown "a continuing attitude of disobedience of the law" and retribution, specific deterrence and protection of society all indicate that a more severe penalty should be imposed.[7] It is clear, however, that the time he spends in custody is likely to be particularly difficult and accordingly his time in custody will be more onerous than would normally be the case.

83. Michael Lane has pleaded guilty and is entitled to a discount for doing so. I approach that issue on the basis that the Crown case had reasonable prospects of success. While Michael Lane did not plead guilty for some time, in pleading guilty when he did, he still has saved a considerable amount of time and money for the criminal justice system and has spared the other members of the deceased's family the ordeal of a contested trial.[8]

86. He has however, shown no remorse and has been unwilling to explore or to attempt to explain what occurred. There is also no evidence before me to suggest that there is any tangible prospect of rehabilitation. His problems are of long standing. He has had many years to address them. He, therefore, constitutes a continuing real danger to the community. In the light of these matters and his past history, community protection looms large and I am required to regard it as the principal purpose of the sentence.[9] That is not to say that the issue of rehabilitation should be completely disregarded. Nothing is certain and it may be that in time he will come to terms with and address his underlying problems. It is not in the community interest to ignore the possibility of rehabilitation, however remote it may seem.

89. On balance, I consider that a consideration of the nature of the offence and the past history of the offender does not make the fixing of a non-parole period inappropriate.[10] A non-parole period should be fixed but it should be substantial. Having regard to the foregoing matters, I have concluded that a non-parole period of 24 years is the appropriate period. It will, in my view, best address relevant sentencing purposes. I regard it as proportionate to the gravity of the offence. I also regard it as the period appropriate and necessary to address the principal purpose of protecting the community. I appreciate that the result of fixing such a non-parole period is that Michael Lane will be approximately 70 before he becomes eligible for consideration for parole. I appreciate that each year of the sentence represents a substantial part of the period of life remaining for him and, depending on his health, may in reality prove to be a life sentence. That is an unavoidable situation. It cannot be said, however, that the minimum sentence proposed would destroy any reasonable expectation of useful life after release.[11]

[1] Crimes (Amendment) Act, 37 of 1986, s 8, s 14 inserting new s 3 and s 18A.

[4] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525.

[5] The Queen v Shrestha [1991] HCA 26; (1990-91) 173 CLR 48 at 69-70.

[7] Veen v The Queen [1988] HCA 14; (1987-8) 164 CLR 465, 477.

[8] R v Donelly [1998] 1 VR 643.

[9] Sentencing Act 1991 s 6D.

[10] Sentencing Act 1991, s.8(2).

[11] R v Yates [1985] VicRp 3; [1985] VR 41; R v Bazley (1993) 65 A Crim R 154 at 158; R v Ridsdale (1995) 78 A Crim R 486 and R v Robinson [1998] 1VR 570