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[2003] VSC 3
defendant. Convicted of murder; sentenced to 20 years' imprisonment with a minimum non-parole period of 16 years; court declared 636 days (as amended) to be reckoned as already served under the sentence...
McCullagh was convicted of murdering his partner by strangulation after a drug binge and sleep deprivation. The sentencing judge accepted expert evidence that drugs and lack of sleep impaired impulse control but treated that as explanatory rather than excusing. Self-induced intoxication was treated as aggravating. The judge classified McCullagh as a serious violent offender but exercised discretion not to extend the sentence under the serious-offender provisions. McCullagh was sentenced to 20 years, with a 16-year non-parole period, and given credit for time already served (paras 34-36, 47-55, 64-65).
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1,851 words · generated 18/07/2026
Francis John McCullagh was convicted by a jury of the murder of Melanie Anne Harnden, who died on 11 September 1999 from manual strangulation. The jury's verdict established beyond reasonable doubt that McCullagh had caused the death by conscious, voluntary and deliberate acts, and that he had the requisite intent to kill or to cause really serious injury (paras 4-5, 8, 31-33). The factual narrative accepted by Gillard J at sentencing was that McCullagh and the deceased had been together intermittently for six months, that McCullagh engaged in binge consumption of amphetamines and ecstasy, substantial marijuana smoking and had little sleep between 9 and 11 September 1999, and that an argument culminating in violence resulted in McCullagh choking the deceased with sufficient force to cause death (paras 25-31, 34-36).
No linked legislation citations have been extracted yet.
McCullagh had a prior history of violent offending, including a 1997 County Court conviction for causing serious injury and false imprisonment (para 20). He was arrested on 15 September 1999 after surrendering to police, showing them where the body lay, and was tried twice: an earlier conviction and sentence were set aside on appeal, leading to a retrial that resulted in the conviction referred to in this sentencing judgment (paras 6, 28). On the retrial Gillard J convicted and sentenced McCullagh to 20 years' imprisonment with a minimum period before parole eligibility of 16 years, and declared a specified period of pre-sentence custody to count as already served (paras 50-55, 64-65).
Three linked strands of reasoning produce the sentence.
Jury verdict constraints and judge's fact-finding role. Gillard J emphasised that while the jury's verdict fixes the elements of the offence, the sentencing judge must still form his own view of facts consistent with that verdict and apply sentencing principles (paras 2, 10-11). The judge may draw inferences from the fact the accused did not give evidence (para 13). However, when finding facts adverse to the accused that are not inherent in the verdict, those facts must be proved beyond reasonable doubt; favourable circumstances need only be proved on the balance of probabilities (paras 14-15). The judge applied this burden split in assessing the evidence at sentencing (paras 13-15, 57).
Effect of intoxication and sleep deprivation. Expert evidence (psychiatry and pharmacology) accepted that binge amphetamine use and sleep deprivation lead to increased irritability, impulsivity and diminished control over aggression (paras 34-35). Gillard J accepted that these factors diminished McCullagh's capacity to control angry impulses in an explanatory sense, but held that the state was self-induced and thus not a mitigating circumstance. Instead, self-induced intoxication was treated as an aggravating factor because McCullagh knew he had a problem and took no steps to avoid placing himself in that condition (paras 34-36, 41). The judge concluded the jury verdict appropriately rejected the defence case that drug-induced incapacity negated intent (para 32).
Statutory and principled sentencing considerations. The judge considered Part 2A of the Sentencing Act (ss 6B–6D), classified McCullagh as a serious violent offender and reviewed s.6D, which requires the court to regard community protection as the principal purpose of sentencing such offenders and permits longer-than-proportionate sentences to achieve that purpose (para 47). The judge nevertheless exercised discretion not to lengthen the sentence under s.6D, finding the sentence chosen already provided sufficient protection (paras 48-49). The judge then fixed a non-parole period under s.11(1)(b) after weighing rehabilitation and other relevant factors, concluding that 16 years was appropriate (paras 51-55).
Other pragmatic factors influenced sentence weight: McCullagh's prior violence and propensity were aggravating; there was some remorse and voluntary surrender which carried some mitigatory weight; there was no clear pre-planning and no motive beyond an impulsive, drug-exacerbated attack (paras 22, 41-45).
Before this decision the applicable principles were already established in appellate authorities: the sentencing judge forms independent findings consistent with the jury verdict (R v Harris and authorities cited at paras 10-11), and the allocation of burden of proof on sentencing facts (R v Storey, R v Albrich and later High Court authority R v Cheung at paras 3, 14-15). The Sentencing Act Part 2A and its s.6D already required courts to consider community protection for serious offenders (para 47). The High Court decisions (Lowe, Deakin, Bugmy, etc.) were cited to underline sentencing principles on the exercise of judicial discretion and the purpose of the non-parole period (paras 52-55).
What Gillard J emphasised in applying these principles was the continued insistence that voluntary intoxication, even if it reduces impulse control, ordinarily remains aggravating at sentencing and will not excuse a deliberate act that causes death (paras 34-36). The decision therefore confirms the existing approach: expert evidence about intoxication may explain conduct and be considered in mitigation to the extent of showing reduced culpability in a given case, but voluntary, self-induced states attract aggravation where the offender was aware of his condition and continued to rely on it (paras 34-36, 41). The sentencing judge also underscored that Part 2A classification does not mechanistically enlarge sentence; the judge remains able to weigh protection against proportionality and rehabilitation (paras 47-49).
Para 14: "adverse facts ... beyond reasonable doubt; favourable facts ... balance of probabilities."
Para 34 (quoting Dr Barry-Walsh): "his capacity to control his angry impulses were diminished by ... sleep deprivation and drug intoxication."
Para 36: "Your self-induced, partially intoxicated state is not a mitigating factor, it is an aggravating one."
Paras 47-49 (s.6D summary): statutory direction to treat community protection as principal purpose for serious offenders, but judge may still decide not to increase sentence for that reason.
Para 50-55: sentencing disposition and reasoning on non-parole period.
This judgment speaks to sentencing where:
Where these facts appear, McCullagh demonstrates that (i) self-induced intoxication will commonly be treated as aggravating at sentence, even if it explains impaired control, (ii) a sentencing judge must apply the burden distinctions as to fact-finding, and (iii) classification as a serious offender does not automatically require a sentence longer than proportionate to gravity if the judge reasonably concludes protection is sufficiently met.
This decision primarily applies settled sentencing principles and statutory interpretation rather than breaking new ground. It has been used as a local instance of applying established doctrines: the judge cited and followed authorities such as R v Storey, R v Harris, and High Court authorities (paras 3, 10-15). Courts that consider sentencing in the context of self-induced intoxication will regard McCullagh as a reaffirmation that voluntary intoxication is ordinarily aggravating, particularly when coupled with a history of violent behaviour and knowledge of one's propensity (paras 34-36, 41). Its treatment of Part 2A is orthodox: s.6D's community-protection primacy is to be considered but does not mandate automatic extension of sentence length (paras 47-49). As a sentencing judgment, its persuasive weight is in the application of these principles to a particular factual matrix rather than sui generis legal doctrine.
(Readers should consult databases for appellate treatment or citation history to see its persuasive or precedential weight in later Victorian sentencing decisions; the judgment itself contains the principal authorities it relied upon.)
Degree of mitigation from intoxication in other factual mixes. McCullagh treats self-induced intoxication as aggravating where the offender had prior knowledge of his propensity and took no steps to avoid intoxication (paras 34-36, 41). How courts will assess cases where intoxication was less voluntarily entered into, or where the evidence shows the intoxication produced a near-total incapacity, remains a live factual question. The decision reaffirms the general approach but leaves line-drawing to future cases.
Application of Part 2A across differing risk profiles. Gillard J exercised discretion not to lengthen the sentence despite classifying the offender as a serious violent offender (paras 47-49). How s.6D is applied where objective indicators of ongoing dangerousness differ markedly may produce different outcomes; McCullagh demonstrates discretion but not a definitive test for when s.6D requires lengthening.
Weight of remorse and voluntary surrender. The judge afforded some mitigation for voluntary assistance to police and apparent remorse (paras 43-45). The interplay between post-offence co-operation and the weight given to remorse in cases involving severe violence remains nuanced and fact-dependent.
Comparative sentencing across retrials. McCullagh confirms the second-sitting judge's independent discretion (paras 56-59) but acknowledges the policy that the first-trial sentence should ordinarily be a ceiling. The criteria for departing materially from the first sentence on retrial when both judges see the same evidence, or when evidence differs, continues to generate judgment-specific answers.
Quantifying credit and declarations under s.18(4). The amended declaration of days served (para 65) demonstrates practical complexities. How best to calculate cumulative custody, parole-cancellation credit and overlaps remains a practical area where bespoke approaches continue to be required.
In sum, R v McCullagh is a detailed sentencing judgment that applies established principles to a fact pattern of murderous violence aggravated by self-induced drug intoxication. It reiterates key burdens at sentencing, the aggravating quality of voluntary intoxication, the proper role of Part 2A, and the sentencing judge's discretion on retrial. Practitioners should read the specific paragraphs cited above for the precise formulations the court relied upon when arguing mitigation, aggravation or the effect of statutory provisions on sentence length.
1 Francis John McCullagh, the jury has found you guilty of the murder of Melanie Anne Harnden ("the deceased"). She died on 11 September 1999. Now it falls on me to sentence you.
2 My task is to determine the facts consistent with the jury's verdict and, applying the principles of law concerning sentence, determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances.
3 In relation to the sentencing process, I note the observations of the Court of Appeal in R v Storey[1] where four members of the Court said -
"Sentencing is not a mechanical process, it requires the exercise of a discretion. There is no single right answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes into account the various purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, and which pays due regard to the principles of totality, parity, parsimony and the like."
4 At the outset, it is necessary for me to determine the relevant facts consistent with the verdict of the jury. It is a trite proposition that the verdict establishes that the jury were satisfied of each of the elements constituting the crime of murder beyond reasonable doubt. You did not give any evidence at the trial. Your record of interview with the police, which was video-recorded, was tendered in evidence. In that interview, you give a version of the events immediately leading up to the strangulation and the death of the deceased. You told the police that you strangled the deceased. The evidence of the pathologist called by the Crown and Dr Collins, who was called on your behalf, confirms that the deceased died from manual strangulation and that a moderate degree of force was applied to her neck for a period anywhere between 15 and 30 seconds and maybe longer.
5 You did not contest that the deceased was killed, that you caused her death by strangulation and that the act or acts which caused her death were conscious, voluntary and deliberate. However, you said that at the time when you strangled her, you did not have the necessary intention, that is, the intention of killing her or the intention of inflicting really serious injury upon her.
6 You were charged with her murder on 15 September 1999 and you have been in custody ever since. There was an earlier trial before Cummins J and the jury convicted you of the murder. The learned trial judge sentenced you to a period of 22 years on 15 December 2000 and set a minimum period of 19 years' imprisonment before you became eligible for parole. You appealed, and the Court of Appeal, on 18 October 2002, set aside the conviction and ordered a retrial.
7 Your defence at both trials concerned the fourth element of the charge of murder, namely, the intent at the time you caused the death. It was your case that at that time, you did not have any intent to kill or inflict really serious injury upon the deceased because of your ingestion of amphetamines and ecstasy, substantial smoking of marijuana and some consumption of liquor between Thursday 9 September and Saturday 11 September, accompanied by a lack of sleep on the Thursday and Friday nights. It was contended on your behalf that your mind was so affected by the drugs and the lack of sleep that you did not have the necessary intent at the time of the commission of the acts which caused the death.
"The responsibility of awarding punishment once a jury has convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and decide how serious the crime is that has been committed and how severely or how leniently he should deal with the offender. The learned judge, in forming his view of the facts, must not of course form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed and he can form his own judgment of the seriousness or other character of the offence."
11 See also R v Webb[4] and R v Hill.[5]
12 In carrying out my task as the trial judge, I am not bound to take the most lenient view of the facts. See R v Harris[6] and R v Hill.[7]
13 As the judge presiding at this trial, I have had the opportunity of considering the evidence and forming an opinion as to the credibility of witnesses and my view of the facts. In reaching my view of the facts, I also take into account that you did not give any evidence in this case. The Crown adduced into evidence your records of interview and of course I take them into account. There were a number of issues that have been raised by your version and you did not enter the witness box to clarify them. You chose the dock instead of the witness box and, accordingly, I am entitled to more readily draw inferences against you which are established by the evidence and are consistent with the finding of guilt.
14 In reaching my conclusion as to the facts, I accept that matters which are adverse to your interests and which are not inherent in the verdict must be established beyond reasonable doubt. On the other hand, if there are circumstances in your favour, it is enough if those circumstances are proven on the balance of probabilities. See R v Storey[8] and R v Albrich.[9] That is not to say that every fact has to be established to that degree, but any facts relevant to the issues in the sentencing process adverse to your interests must be proven beyond reasonable doubt, if not inherent in the verdict.
15 The principles I have just stated have been recently reaffirmed by the High Court in R v Cheung.[10]
16 Turning to the facts, you were born on 2 January 1970 in Belfast, Northern Ireland, and are now aged 33 years. You came to this country as a young boy. You have lived in this country ever since. The photographs taken of you on 15 September 1999 and the video of your interview with the police showed a man of strong build.
17 The deceased was born on 17 June 1978 and at the date of her death was 21 years. In contrast to you, she was a slim, slight, young woman weighing 48 kilograms and 164 centimetres in height. She was an unmarried mother and had a daughter then aged three. She resided in a caravan park in Hastings. The evidence supports the view that she smoked marijuana and took drugs on a reasonably regular basis. Her photograph placed in evidence showed a pretty, young, slim woman; a young woman who would have been easily subdued by your superior physical size and strength.
"She was hitting me. I was hitting her with - pretty fucking hard. Then I started choking her. I couldn't - I didn't - didn't know - I didn't - it happened so quick. She just stopped breathing. I didn't - I didn't know - I didn't mean to hurt her. I didn't want to fucking hit her and everything. She just said - it was just - I didn't know she had anything to do with thieving me bag."
31 You told the police that you realised she had died, she was not breathing and you did not know what to do. The pathologist's evidence was consistent with you striking the deceased three or four times around the eyes causing deep bruising to the face, applying a hand or hands to the throat, exerting a moderate degree of force for a period of anything from 15 to 30 seconds and maybe longer, ultimately causing her death. Although the thyroid cartilage in the neck was intact, there were fractures of both arms of the hyoid bone within the neck and there was deep bruising of the strap muscles as well as significant and external bruising to the face and neck of the deceased. The autopsy revealed the telltale conjunctival petechial haemorrhages in her eyes showing that she had died an asphyxial death.
32 The jury's verdict clearly establishes that not only were you aware of strangling the deceased, and indeed you admitted it was a conscious, deliberate and voluntary act, but at the time, you had the necessary murderous intent to either kill or cause really serious injury. Any suggestion that the lack of sleep, the ingestion of amphetamines and ecstasy and the smoking of marijuana so affected your brain that you could not form the necessary intent, and in fact did not have the necessary intent, was clearly excluded by the jury's verdict. Indeed, in my view on the evidence, there was no other verdict.
33 Given the circumstances and your relationship, I find that your intention at the relevant time was an intention to cause really serious injury. I am not satisfied that you intended to kill the deceased. I sentence you on that basis and this is relevant to the seriousness of the offence. Indeed, the evidence leads me to the conclusion that within a number of hours after this tragic event, you realised what you had done and how stupidly you had acted.
34 Two reports were placed before the Court, one from Dr J. Barry-Walsh, a forensic psychiatrist, who provided a report dated 3 October 2000; the other was a report from the consultant clinical psychologist, Mr Bernard Healey, of December 2000. The psychiatrist's report shows no psychiatric illness and the psychologist's report shows no psychological disorder which would explain the crime. The psychologist's report shows that you are a person of above average intelligence. Both reports confirm your aggressive prior behaviour and your difficulty in controlling your angry impulses, and that the lack of sleep and use of drugs coupled with that inability to control the angry impulses explains your appalling conduct. Of course it does not excuse. I entirely agree with the views expressed by Dr J. Barry-Walsh. After interviewing you and considering other material, he expressed his view as follows, which in my opinion appropriately sums up the effect of the evidence given at this trial. He said -
"I believe it is likely that his capacity to control his angry impulses were diminished by the combination of sleep deprivation and drug intoxication, particularly with amphetamines. At the time he was probably more irritable and impulsive than usual because of his drug use, plus his actions can be seen to reflect a combination of his pre-existing personality traits and increasingly unstable lifestyle and acute effects of drug intoxication."
35 Professor Drummer, the forensic pharmacologist, summarised the effect of binge drug-taking. He stated that a person using in a binge cycle over say one, two or three days, amphetamines or ecstasy, has an initial stimulation, an excitation, a feeling of well-being that leads to an increased intensity as one drug is added after the other. Because of stimulation, it is then hard to sleep and over a few days, the individual becomes quite heavily intoxicated by amphetamines. However, cutting back on consumption can cause anxiety, depression, leading to delusion, paranoia, violence and aggression. The ability to think rationally is affected and can lead to errors of judgment involving difficulties to foresee the consequences of one's actions. There are difficulties with controlling aggression, and impulse control is readily affected. Hence, one can go quickly from being reasonably placid to aggressive with little provocation or reason.
36 You have always had difficulty controlling your temper. Your modus operandi is to deal with stress and meet difficulties in your life with aggression rather than reason. You no doubt have been aware of this ever since you left school. Your experience involving your de facto wife failed to bring home to you the importance of controlling your temper and aggression, but more particularly, taking steps to avoid that loss of control. Unfortunately, your consumption of amphetamines was a substantial contributing factor to your lack of discipline over your aggression and no doubt exacerbated your pre-existing personality traits. Your pre-existing aggression traits, combined with the effects of drug-taking, led to this tragedy. It is the explanation; it is no defence, it is no excuse. Your state of mind brought about by lack of sleep and ingestion of drugs played its part in this tragic event, making you less able to control your actions and think rationally. I am sure if you had your time over again you would not have put yourself in the position to lose control. Your self-induced, partially intoxicated state is not a mitigating factor, it is an aggravating one. You knew you had a problem, a problem increased by intoxication due to drugs, but you took no steps to counter it. See Fletcher- Jones;[11] R v Groom;[12] and Sentencing, by Fox & Freiberg.
"If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances."
48 I do take the factor of protection of the community into account, but, in my view, it is not a factor which would lengthen what would otherwise be an appropriate sentence. The prisoner will be undergoing a lengthy period of imprisonment and I have some degree of confidence that when he is released, he will not represent a danger to the community. As I have said, he will be much older and, hopefully, much wiser.
49 In my view, having considered s.6D, I do not propose to lengthen the period of the sentence because the prisoner is a serious violent offender. I think the length of the sentence will provide sufficient protection for the community.
50 After carefully weighing all relevant matters, I convict you on the count of murder in accordance with the verdict of the jury and sentence you to a period of 20 years' imprisonment.
51 It is now necessary to consider whether there should be a minimum period of imprisonment. Under s.11(1)(b) of the Sentencing Act 1991, the Court is bound to fix a period during which the offender is not eligible to be released on parole unless there are particular circumstances which makes a fixing of such a period inappropriate. In my view, the general rule should apply and I will fix a general period. It must be borne in mind that the minimum period is part of the sentence and the Court is concerned, when fixing the minimum period, to determine what is the appropriate period that you should be imprisoned. I refer to the observations made by the Court of Appeal in R v Chan.[15] As the Court said on that occasion, there should not be too great a disparity between the sentence and non-parole period, however the period is very much a matter of discretion for the sentencing judge.
52 In , Gibbs CJ said -
"What is appropriate must depend very much on the circumstances of the case. The exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion."
53 As the High Court said in Deakin v R[17] -
"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
54 The same factors which are taken into account on the head sentence are also relevant and have to be weighed carefully in fixing a minimum period. The weight which should be attached to each particular relevant matter depends upon the circumstances. As a general rule, the factors that are favourable to the prisoner are given more weight, that is, mitigatory factors, risk to the community upon release, and rehabilitation. See the cases of Iddon and Crocker v R[18] and Bugmy v R.[19]
55 Having carefully weighed the relevant matters and given some prominence to the question of rehabilitation, it is my opinion that the minimum period during which you are not eligible to be released on parole is 16 years.
56 As I have fixed a sentence different to what Cummins J did on the previous occasion, it is appropriate that I should make a number of observations. First, the sentencing task on this retrial is for me and me alone. I must make findings of fact consistent with the jury's verdict and only if satisfied beyond reasonable doubt in relation to any matter which is adverse to the accused. Secondly, I am bound to carefully consider and weigh all relevant matters in the sentencing process to make my assessment of the punishment proportionate to the gravity of the offence. In other words, the sentence must fit the crime and that is a decision I have to make.
57 Thirdly, in making my findings of fact, I do so on the evidence that was placed before me on this trial. This trial lasted considerably longer than the last trial. Cummins J made two findings of fact that I would not be prepared to make on the evidence before me, namely, his finding that you lied to the police about whether the deceased kept talking about the loss of the bag leading up to the fight and whether she attacked you first. Whilst I have considerable suspicions about some aspects of what you told the police, nevertheless I would not be prepared to make the findings on the evidence before me that His Honour was prepared to do.
58 Many courts have described the sentencing process. In R v Emery, an unreported decision of the Full Court of this State delivered on 11 April 1979, the Court said -
"When sentence is passed, a discretionary judgment is exercised and that judgment necessarily depends upon the view of all the circumstances of the offence and the offender taken by the judge whose task it is to pass sentence. It is notorious that one judge will take a different view of an offence and an offender from that taken by another judge."
59 Whilst there is a policy rule that the sentence passed at the first trial should ordinarily be regarded as the ceiling which should not be exceeded at the second trial and that by and large the sentences should be the same, the law is that it is for the second judge to determine what is the appropriate sentence in all the circumstances before him. See R v Chen.[20]
60 Finally, it is necessary for me to make a declaration pursuant to s.18(4) of the Sentencing Act 1991. The exercise is somewhat complicated by a number of factors and it is necessary for me to briefly state them.
61 The prisoner was arrested on 15 December 1999 and was effectively on the run from the Parole Board. The Parole Board cancelled his parole on 20 September 1999 and he was required to serve one year, five months and two days of his previous sentence.
62 On 12 November 1999, he was sentenced to further periods of imprisonment in relation to a number of offences. The magistrate sentenced him to a total of five months, which were to be cumulative with the time owed under the original sentence. This meant that the last day for serving both the original sentence and the later sentences was 17 July 2001. That means that he is entitled to credit from that date plus the six days between 15 and 20 September 1999. I make that 575 days. That is calculated by taking the 365 days to midnight on 16 July 2002, adding 204 days, including today's date, and adding another six days. I did not understand Mr Lovitt Q.C., on behalf of the defence, to put any submission to the contrary.
63 At the previous trial, reference was made to s.16 of the Sentencing Act and at that time, the prisoner was in fact undergoing a period of imprisonment. However, that section no longer applies. Mr Lovitt Q.C. submitted that I should not be concerned about and accordingly, I make no further reference to it.
1. That Francis John McCullagh be convicted of the offence of the murder of Melanie Anne Harnden, who died on 11 September 1999, in accordance with the verdict of the jury;
2. that he be sentenced to a period of 20 years' imprisonment;
3. that the minimum period during which the prisoner is not eligible to be released on parole is 16 years;
4. that the Court declares pursuant to s.18(4) of the Sentencing Act 1991 that the period to be reckoned as already served under the sentence is 575 days, including today's date, and the records of the Court should note that fact and the fact that the declaration was made.
---
65 On 6 February 2003, the parties returned to court on the question of the declaration pursuant to s.18(4) of the Sentencing Act 1991. After reviewing evidence and hearing submissions, the Court amended the declaration to read -
"that the Court declares pursuant to s.18(4) of the Sentencing Act 1991 that the period to be reckoned as already served under the sentence is 636 days, including 5 February 2003, and the records of the Court should note that fact and the fact that the declaration was made."
[1] (1998) 1 VR 359 at 366.
[2] [1982] 7 A Crim R 116 at 119.
[3] [1961] VicRp 36; [1961] VR 236.
[4] [1971] VicRp 16; [1971] VR 147 at 152-3.
[5] [1979] VicRp 33; [1979] VR 311 at 312.
[6] Supra at 237.
[7] Supra at 312.
[8] Supra.
R
McCullagh [2003] VSC 3
(1998) 1 VR 359
(1999) 199 CLR 270
(2002) 76 ALJR 133
(1999) 2 VR 159
(1984) 154 CLR 606
(1984) 58 ALJR 367
(1990) 169 CLR 525
(1993) 2 VR 139
Convicted of murder; sentenced to 20 years' imprisonment with a minimum non-parole period of 16 years; court declared 636 days (as amended) to be reckoned as already served under the sentence (paras 50-55, 64-65).
8 At both trials, the jury retired for a short period of time before convicting you. By their verdict, the jury was satisfied that at the relevant time when you caused the death, you did so either with the intention of killing the deceased or with the intention of inflicting really serious injury upon her.
9 The verdict establishes all the facts which constitute the elements of the crime of murder, but there may be other facts which are particularly relevant to the question of sentence and which are not necessarily apparent from the verdict which I must consider. These would include issues of aggravation and mitigation - see R v Prokopiec.[2]
10 The judge's sentencing task is stated by the Full Court in R v Harris.[3] Lowe J said at p.236 -
18 You had been keeping company with the deceased on an on-and-off basis for a period of six months. What you were doing during that six month period by way of work is not revealed by any evidence.
19 It is appropriate at this stage to refer to some of your background. As a young man, you were involved in petty criminal activity and dealt with in the magistrates' courts. In 1987, when you were aged 17 years, on two occasions you were dealt with by the Magistrates' Court for irresponsible street offences and fined. However, in 1990, when you were aged 20, you were convicted of assaulting a member of the police force, resisting arrest and being found drunk in a public place. Again, you were fined. You were of course at that point a young man and I take that into account and I note that your indiscretions were not all that serious. There was a significant gap between those events and an event which occurred of a very serious nature in 1996. It appears you had a relationship which broke down. An intervention order was taken out against you and you were convicted of breaching the terms of that intervention order.
20 On 2 June 1997, you were convicted at the County Court of causing serious injury intentionally to, and false imprisonment of, a young woman and given a total effective sentence of two years nine months with a minimum of 12 months to be served before becoming eligible for parole. The injury and false imprisonment offences concerned a young woman and they were extremely serious offences.
21 The offences which were committed on 13 December 1996 involved a young woman with whom you had had a de facto relationship. You lived with her for a period of approximately six years, and three children were born of your union. In December 1996, they were aged five years, four years and 16 months respectively. There was a separation in April 1996 and the woman obtained an intervention order against you. There were also proceedings in the Family Court concerning custody and access. In November 1996, an attempt was made to reconcile and you and she recommenced to cohabit. Evidently the prospects were good over the following weeks until the evening of 12 December 1996. On that night, you became very agitated and alleged that your de facto wife had been seeing another man. The following day from about 7 a.m., you subjected the woman to violence, ridicule and assault and this went on for most of the day. You drove her out into the country and subjected her to continual abuse, insult and violence. You kept accusing her of infidelity.
22 There can be no excuse for your appalling behaviour or your rage and aggression. It is clear from your history that you do have a temper and choose to resolve difficulties by resorting to violence. However, in considering this appalling episode, which demonstrates your attitude to women, I do not overlook the context of the family relationship, a breakdown and emotions that are engendered sometimes by such breakdowns of a relationship. As I have said, that does not provide any excuse for your appalling behaviour and lack of control of your aggressive temper. It nevertheless provides some explanation for your conduct. One thing that can be said in your favour is that you pleaded guilty at your trial.
23 In April 1998, you were granted parole. You obtained employment as a drainer during this period. Later that year, you became involved in a fight with a bouncer and also in a fight at a street march. As a result, your parole was cancelled on 18 December 1998. You were subsequently dealt with for those offences in November 1999 and you were sentenced to periods of imprisonment. At that time, you were in custody as a result of the murder charge. The severity of the sentences meted out by the Melbourne Magistrates' Court is an indication of the seriousness of the assaults committed on two separate occasions. It appears that after you were released on parole back in 1998, you completed a three months' intensive parole course, undergoing anger management and counselling. Unfortunately, as the later events amply demonstrate, you could not keep your temper under control and indulged in conduct which aggravated your lack of control. After your parole was cancelled, you avoided authority and were in effect on the run. Apparently at this point, you commenced to seriously abuse amphetamines, frequenting the nightclub scene.
24 Your aggression goes back to your early days. Your father worked as a plumber and your mother worked as a head cleaner at a hospital. Evidently, the family tended to move around a little in the early years even though, in the end, the family settled down in the Cranbourne area. You had what you described as a fair childhood and a good relationship with your mother. However, there was considerable domestic violence by your father, who was an alcoholic binge drinker and frequently violent towards your mother. On occasions, he was violent towards you. This violence continued up until your teenage years. At school, you had a discipline problem. After leaving school, you trained as a drainer and at one point ran a reasonably successful business. Unfortunately, it is fairly clear that you adopted your father's method in dealing with stress, namely, anger, aggression and violence.
25 The events that led to the tragic death of Melanie Harnden can be briefly summarised. As I have said, you had what could be described as a spasmodic relationship with her over a period of six months, leading up to the evening of Thursday 9 September 1999. On that evening, in company with the deceased, a friend of yours, Phillip Buttigieg, and one of her friends, Melissa Dunkin, you went to a disco nightclub in Melbourne and during the course of the evening, both prior to and after arrival at the nightclub, you consumed amphetamines, ecstasy and smoked a quantity of marijuana. The four of you left the city in the early hours of the Friday morning and went to the friend's home. I do not accept Mr Buttigieg's evidence of the events which occurred thereafter. I accept generally the version given by the deceased's friend, Melissa Dunkin. I am satisfied that on that Friday morning, you did go back to her home and stayed there for about three hours. Later on that Friday, you returned to the van of the deceased at Hastings at about 9 to 10 p.m. And I accept that you had amphetamines on that night. Melissa Dunkin was there at that stage and she left about midnight to go out. After that, I find that you did smoke some marijuana. Nevertheless, at about 2 a.m. on the following morning, that is, the Saturday morning, you had sufficient presence of mind to go out to your car to obtain your toothbrush and observed that a bag of clothes and other belongings were missing from your car. Whilst that concerned you at the time, you showed no outward sign of annoyance or aggression. You then went to bed with the deceased and your friend Mr Buttigieg laid down on the sofa in the van.
26 Both you and your friend Mr Buttigieg said you had considerably more drugs between Thursday evening and Saturday morning than was deposed to by Melissa Dunkin. I find that the versions given are exaggerated. At about 7 a.m., when Melissa returned to the van, you were in an extremely annoyed and aggressive mood and yelled at her, suggesting that she may have had something to do with the bag disappearing. You apparently accepted her explanation and your suspicions were directed towards a number of young men who lived in the van park. You made a threat to the effect that you would kill anyone who was responsible. Melissa observed that the deceased was not looking all that well and then she left. You and your friend and, it appears, also the deceased, roamed the van park seeking to find your bag. You talked to a number of occupants and were aggressively disposed towards them. You did not find your bag. You and Mr Buttigieg left the van park some time on that Saturday morning and you drove him home. What you did thereafter does not appear in the evidence. Evidently, you returned to Mr Buttigieg's home some time around 3.30 that afternoon and requested him to come back to the park with you. I have a suspicion that the reason why you invited him back was to provide some support in case there was some dispute between you and the occupants of the park. You returned about 4.15 p.m. You were in a particularly aggressive, nasty mood, displaying considerable temper and using foul language. You were clearly angry and agitated and you abused the managers of the park. They would not let you drive your vehicle in. You and Mr Buttigieg walked to the van of the deceased as three male occupants of the van park were leaving her van. They had spent some time with her, sharing a meal. One can readily infer that the friendliness between the deceased and other occupants of the van park, about whom you had your suspicions concerning the loss of your belongings, was a further source of annoyance to you. You and the deceased and your friend left the park and drove back to his home in Cranbourne and the time must have been around about 6 p.m. on that evening.
27 The next witness who was able to explain your movements was Mr Buttigieg, who stated that shortly prior to midnight, you knocked on his door, you informed him that you had hurt Melanie and that you wanted a sheet. Unbeknown to him, you took a pillowslip and clothing off his clothesline and some rope. You then trussed up the deceased in a foetal position and drove 53 kilometres to Scout Drive, which is some two kilometres off the South Gippsland Highway, and dumped her body in some bushland on the side of the quarry.
28 On that Sunday, you made contact with your mother. She and your sister talked to you in Chelsea Park on the Sunday afternoon and observed you to be in a very agitated and upset state and evidently talking suicide. You then hid yourself away for some two days in a van on the Mornington Peninsula. You then approached a solicitor on Wednesday 15 September and gave yourself up to the Homicide Squad on that afternoon. You were interviewed. You showed the police where the body was and you were charged with the murder late that night.
29 You gave a version to the police of what occurred concerning the killing and you were asked a number of questions about it. There are a number of features about the evidence which leave gaps in your story. Your movements on Friday and during Saturday are unexplained. Your version is that after dropping your friend on the Saturday night around 6 p.m., you and the deceased drove towards Chelsea where you both were to attend a function. You got some five kilometres down the road when a fight evidently broke out between you and the deceased and you drove off onto a road which was unsealed. If this is correct, then there is no explanation for the five hours that elapsed between these actions and you knocking on the door of Mr Buttigieg. However, I can only make findings on the facts before the Court and I cannot speculate or guess as to what was happening. You emphasised that the reason why you were so upset about the loss of your bag was the fact that it contained a Celtic gold cross, which had been given to you by your grandmother when she visited Australia from Ireland when you were about seven years of age. You said it had great sentimental value and you were extremely upset by this loss.
30 Your version given to the police was that you admitted that you were upset about the bag as you left the van park. After dropping off your friend, you proceeded towards Chelsea. You stated that the deceased kept bringing up the subject of the bag and you said you did not want to talk about it as you wanted to have a good night. She, according to you, then made an observation that somebody in the van park, whom she knew, took the gold cross that your grandmother had given you. You said that the deceased realised what she had said. She made some derogatory remarks about you and your grandmother. You started crying. She hit you and you hit her back, probably with an elbow into her face. You then pulled the car over and it was, in your words, a "free for all". You then stated this:
37 The principles which guide a court in sentencing are the common law and statutes, particularly the Sentencing Act 1991. The sentence for murder is either life or imprisonment for such term as is fixed by the Court (see s.3 of the Crimes Act 1958). The crime of murder is the second most serious crime in the calendar after treason. The object of sentencing is to pass a sentence which the Court regards as an appropriate sentence. The purposes of criminal punishment are various and include protection of society, deterrence of the offender and of others, retribution, denunciation and rehabilitation. The weight to be attached to each factor depends upon the particular circumstances of each case. In the end result, the punishment must fit the crime. In other words, the sentence must be appropriate and proportionate to the gravity of the crime considered in the light of the objective circumstances. The punishment is a matter for me and me alone in this case and it depends upon my view of all of the circumstances of the offence and your circumstances. I am bound to consider the matters set out in s.5 of the Sentencing Act 1991. I must carefully weigh all relevant matters.
38 The Court must consider the nature and gravity of the offence, your degree of criminal culpability and responsibility, deterrence, denunciation of your conduct, any aggravating or mitigating factors and also any other relevant circumstances. Remorse is a relevant factor to take into account, if there is any, and I think in this case, there is some evidence of remorse.
39 The legislature reflecting the view of the community views this crime as extremely serious. On any view, the way you committed this crime was very serious. The gravity of the offence is a starting point in the exercise and the Court is obliged not only to denounce your criminal conduct but also to take into account general deterrence. Despite your past conduct of aggression, especially towards women, I do not believe that specific deterrence plays any part in this sentencing process. You will be serving a long period of imprisonment. You are intelligent enough to realise what you have done, the causes of it, and one would expect that you will avoid hereafter a repetition of the circumstances that led to this tragedy. You will be much older upon your release; hopefully, much wiser. However, general deterrence is extremely important. All too often, men take it upon themselves to take out their rage and aggression upon a defenceless woman. That is what happened here.
40 Two victim impact statements were placed before the Court. None of the facts stated in them were contested. The mother of the deceased has been physically and mentally scarred by what has happened and is finding coping with her relationships extremely difficult. The impact statement from the stepfather also graphically shows the effect it has had upon the siblings of the deceased. The statement graphically shows the appalling effect your crime has had on the emotional state of the parents and other siblings.
41 There were a number of factors which aggravated the commission of this crime. Your prior conviction showed a disposition towards violence and a lack of control, as indeed does your prior general behaviour, and yet you took no steps to curb it. On the contrary, your self-induced abuse exacerbated your condition.
42 In accordance with the observations of the High Court in Veen v R (No.2),[14] I note your prior conviction, I observe its relevance to your propensity for violence, but I do not use it as imposing a sentence which is disproportionate to this offence. Secondly, the deceased was a young, decent, harmless young woman of small stature and you cruelly snuffed out her life with your aggression and physical violence. The third factor is that your lack of control came about by your self-induced drug abuse and lack of sleep. And finally, your violence towards the deceased was appalling and could have been avoided if you really sought to restrain her. Your crime was at the higher level of criminal culpability. You were sentenced for your appalling behaviour towards your de facto wife and after you were arrested for murder, you subsequently served your term of imprisonment. Accordingly, as I have said, the prior conviction is noted but does not result in a longer sentence. However, that prior history shows that you have a predisposition for violence. Also, the present offence occurred whilst you were on parole, albeit avoiding authority.
43 The sentencing process requires the Court to not only take into account matters that may be generally described as aggravating, but also to take into account matters personal to you as mitigating factors. You are now aged 33 years and the period of imprisonment will cover the period of your life which should have been your most productive years. I accept that there was some degree of remorse. I think it most likely that by late Saturday night, you were very aware of the gravity of what you had done, you became extremely distressed about it and no doubt wished you had your time over again. You did voluntarily go to the police and whilst it could be said that the finger of suspicion would have been obviously pointing at you, nevertheless it does show that you were prepared to assist the police to locate the body and accept your fate.
44 Your counsel submitted that there were some other mitigating factors. In addition to remorse, it was submitted that there was no pre-planning and clearly no motive for this senseless tragedy. It was a stupid act done on the spur of the moment. I agree. It is a factor to be weighed. Further, it was put that by reason of your background, you had difficulty controlling your emotions and hence, there was a degree of diminished responsibility. I have already noted that, but it is a factor of no weight, bearing in mind that you fully knew of your aggressive and explosive temper, you had had prior experiences of it, you had been to an anger management course, and you knew that drugs had the effect of exacerbating that condition. You fed that condition by your drug-taking. It was further put that you had not sought to run down or criticise the deceased, and that appears to be so.
45 In addition, it was emphasised that the delay in finalising this involvement in the criminal justice system was something beyond your control but in itself has created particular stress to you, not knowing your fate, and that this is a factor that should be taken into account. Ms Pullen, on behalf of the Crown, submitted that in any event, you were well aware that you would be serving a long term of imprisonment because you admitted that you killed that deceased. However, I do take into account that you were convicted and sentenced in December 2000, that the conviction was set aside by the Court of Appeal in October 2002, and that you had to suffer the further stress of a retrial and the uncertainty as to its outcome.
46 It was emphasised by the Crown that this was an extremely serious murder, and I agree. Most murders are. In the end result, I must weigh all the relevant factors and determine a punishment which fits the crime.
47 Ms Pullen referred me to s.6D of the Sentencing Act 1991. The section appears in Part 2A of the Act which deals with serious offenders. "Serious offender" means, inter alia, "a serious violent offender". Section 6C requires the Court to consider whether the offender is a serious offender. I am satisfied that you are a serious violent offender within the meaning of Part 2A, in that you have been convicted of a serious violent offence for which you have been sentenced to a term of imprisonment, namely, your prior conviction and also the conviction in this present trial (see s.6B and s.6C). Section 6D deals with that finding as being relevant to the length of imprisonment in the present proceeding. That section obliges the Court to take into account the protection of the community in determining the length of the sentence. The section provides -
64 I make the following orders:
[11] (1994) 75 A Crim R 381 at 386-388.
[12] (1999) 2 VR 159 at 164.
[13] 2nd ed. at 299.
[15] (1994) 76 A Crim R 252 at 255.
[16] [1984] HCA 46; (1984) 154 CLR 606 at 610.
[18] (1987) 32 A Crim R 315 at 325-6.
[19] [1990] HCA 18; (1990) 169 CLR 525 at 530-32 and 536-38.
[20] [1993] VicRp 64; (1993) 2 VR 139 at 158-161.