R v McKinley [2000] VSC 287

Supreme Court of Victoria|2000-07-18|Before: COLDREY, J.

Application was made by the Crown for an order that Julie McKinley provide a blood sample pursuant to s.464ZF of the Crimes Act 1958; that application was the subject of consent and accordingly I make the order sought.

I am further required by the legislation to explain to Ms McKinley that the police may use reasonable force that the forensic procedure involved may be carried out.

Julie Kay McKinley, you have pleaded guilty to arson with intent, aggravated burglary and child stealing. Your pleas of guilty to arson with intent and aggravated burglary followed negotiations with the Crown after a trial on these and other charges was discontinued on the 13 June of this year. You have always pleaded guilty to the offence of child stealing.

In deciding what sentences are appropriate it is necessary to set out not only the facts surrounding the commission of these offences but also to examine those factors which motivated you to commit them, including your background.

You were born in July 1964. Your father was in the Australian Army stationed at Holdsworthy and at the age of eight you were raped on a number of occasions by another soldier. At the age of 13, apparently ignorant of the facts of life, you became pregnant to Alan Stevenson who was your 17 year old boyfriend. When, after seven months your pregnancy was revealed to your parents, you were sent off to relatives in order to keep the matter secret. Your child, a baby boy, was born at the Royal Women's Hospital, Crown Street Sydney in December 1977. You saw the baby fleetingly before it was taken away to be adopted out against your will.

Contact with Alan Stevenson was forbidden by your father and letters he wrote to you were intercepted and kept from you. By this stage your father was stationed at Puckapunyal and you were attending Seymour High School. Eventually you learned of the letters, the relationship resumed and at 15 you were pregnant again. You kept this fact from your parents until you were five months pregnant but upon their discovery of the situation you were forced to undergo what may be described as a 'backyard abortion'. It involved the trauma of an induced labour.

According to your brother Anthony Graham, who describes himself as your best friend, your early life as an army child was characterised by constant shifting of houses and schools. That in itself created an unsettled lifestyle. He describes you as being treated like an outcast by your parents and frequently running away from home only to be returned by the police.

Throughout this period you maintained intermittent contact with Alan Stevenson and when you were 16 you became pregnant to him once more. On this occasion you left home and ultimately entered St Josephs Convent for unwed mothers in December 1980. A daughter, Christine, was born on 1 February 1981. Several months before that, the relationship with Alan Stevenson had terminated. Again your parents were determined that the baby would be adopted, but you were equally determined to keep the child. You commenced to bring up the baby while living alone in rental accommodation. Your education, which had reached Year 11 at Seymour High School, terminated at this time. Later you obtained employment as a waitress.

At no stage during your teenage years did you receive any counselling about the events that had befallen you. The effect of those events was to cause you to develop your own coping mechanisms which involved a degree of make believe. One dream was that you would reunite with Mr Stevenson, have your baby back, and produce a family.

Another result of these events was to leave you with residual, and at that time, undiagnosed depression. You experienced flashbacks about being in the labour ward and hearing a baby crying but being unable to find it.

At the age of 17 you married an army private named Challon. He left the army and was ultimately arrested and jailed in Perth on drug charges. You were then 18.

In 1986 at the age of 22 you were married to a man called Andrew McKinley. That marriage lasted six years. During that period you had a number of miscarriages, and one ectopic pregnancy which resulted in the loss of one of your fallopian tubes in surgery.

In 1993, having separated from McKinley, you resumed your relationship with Alan Stevenson. The dream of a happy marriage again eluded you, one reason being the reactivation of the memories of your teenage traumas. Rather than seek professional help to alleviate your increasing anxiety you self-medicated with prescription drugs such as Valium. Ultimately you began abusing tranquillising drugs.

Two matters of significance occurred during the four year period of this relationship. Firstly, your son (who had been named Nathan) turned 18 and you utilised Freedom of Information procedures to obtain details of his birth and adoptive parents. In 1996 you met him. Not surprisingly given the passage of time, the mother/son relationship you had wished to establish did not occur, although you maintained contact with him thereafter. Secondly, in a sad irony, you established a counselling and therapy business which you called Allies. It combined parts of the first names of yourself and Alan Stevenson. You now believe that name was a triggering mechanism for your actions when you saw the birth notice for Allie Woods in the newspaper.

The relationship with Mr Stevenson eventually came to an end and he took up employment in Queensland.

In mid 1997 you met Robert Russell and commenced living with him in November of that year. That relationship was not without its difficulties, and it involved a period of separation in May 1998. However, even earlier than that, in 1997, your obsession with having children as well as establishing a permanent relationship was illustrated by you falsely informing Mr Russell that you were pregnant with twins and that he was the father. That pretence involved you and the elated Mr Russell looking at twin strollers and baby clothes. You later told him that you had miscarried.

At the beginning of 1998 you made contact with the pregnant girlfriend of your son Nathan, wanting to be involved with the birth of your first grandchild. When the baby was born in June 1998 you sent presents. Some time after that, however, the child's mother, who by then had separated from Nathan, wished to discontinue any contact.

In about April 1998 you had another miscarriage. However, in about June you informed Mr Russell that you were pregnant to him. This was untrue. On this occasion it appears that your parents also approved of the purported pregnancy. As of October 1998 you were living at Honour Avenue, Werribee and you purchased items for a baby including clothes and a changing table and set up a nursery in your house. There was no doubt that you enjoyed the trappings of pregnancy and involvement with those who were pregnant.

It may well be that you hoped to become quickly pregnant again. When this did not occur you once again resorted to pretence. In order to convince Mr Russell that you were pregnant you enlisted the aid of two unsuspecting young women known to your daughter Christine. Using the pretext of doing genetic research for Deakin University and offering incentives such as $3,000 financial assistance, you persuaded these young women to provide urine and in one instance blood samples for testing and also to undergo an ultrasound. The last ultrasound was 23 October 1998. Eventually both young women became suspicious of your actions. The police were informed but no action was taken.

Despite the production of the pathology reports and ultrasound images, Mr Russell remained sceptical. One solution to your difficulty would have been to announce a further miscarriage but the fact that your daughter Christine had become pregnant in late 1998 caused you to fear the effect of such a pronouncement upon her pregnancy. Additionally, Christine was aware that your first potential grandchild, of whom Nathan was the father, had been still born sometime in 1997.

Faced with this dilemma you confessed to Mr Russell on 27 December 1998 that you were not in fact pregnant. One of the devices you would use to simulate pregnancy was to wear padding underneath your clothing. Although you informed Mr Russell of the true situation, you maintained the charade of pregnancy to others including your daughter. Rather than inform everyone of the true situation, you embarked upon yet another course of deception. You told Mr Russell on 27 December that there was a lady named Tracey who lived in Seymour and who was pregnant as a result of a rape who did not want to keep the child. You were to care for the baby after collecting it at Seymour in late January or early February.

You were now trapped within a web of lies and deceit of your own making. Your use of benzodiazepines increased as the projected date approached and the stress of the situation intensified.

About 6 February 1999, you read the birth notices in the Herald Sun newspaper as was your habit. One such noticed recorded that Allie Jane Woods had been born on 5 February. As I have previously indicated, that name had a psychological impact upon you.

I am prepared to find in your favour that the plan to take a baby crystallized about this time and not earlier. You set the scheme in motion by ringing the Mitcham Private Hospital on the afternoon of Tuesday 9 February stating that you were from Home Services, that you would speak to Mrs Woods when she returned home from hospital. Further messages were left on the Woods' home answering machine on the Wednesday and when Mrs Woods ultimately arrived home on Thursday 11 February she rang you. You used the name "Julie" and under the guise of a community service worker, you arranged to meet at 5 p.m. That evening. You failed to appear but later that evening you left a further message and eventually a visit was arranged for about midday on the Friday. I am satisfied by this stage you were determined to take the baby.

On that Friday you arrived at about 12.30 p.m. And introduced yourself as Marie from Community Services. You were dressed professionally and armed with a clipboard and natal literature. You asked relevant questions about the health of the baby and Mrs Woods' caesarean operation. You let it be understood that you could arrange home services for her. Additionally you raised the topics of incense oil for relaxation and of herbal remedies and obtained Mrs Woods' assent to their use. It was subsequently arranged that you return to the Doncaster premises about 6.30 the following morning, being Saturday. You arrived with an aromatic oil burner and a quantity of Temazapan tablets which you represented to be herbal remedies designed to relax Mrs Woods and help heal her wounds.

After baby Allie had been fed and put in her bassinette you gave Mrs Woods four Temazapan tablets, probably of 5mg strength. You were aware that visitors were expected later in the morning and your time was limited. Mrs Woods then showered and prepared and ate her breakfast. During this time she was experiencing feelings of tiredness. You suggested she sleep while you attended the paperwork and looked after the baby. Mrs Woods obtained a doona and lay down on the couch in the loungeroom. At this time the oil burner you had bought was alight and standing on a kitchen bench.

The next recollection of Mrs Woods was of feeling heat on her kneecap and seeing the end of the doona near her feet on fire. As she jumped up she noticed the oil burner near the end of the couch. You had moved it to that position. After a futile attempt to put out the fire using the baby's bath Mrs Woods went into Allie's room. The basinet was empty and the baby and blankets gone. According to neighbours Mrs Woods banged on their door between 9.30 and 9.45 a.m. She was hysterical and kept repeating "Marie's got the baby." .

This was, in fact, the case. You drove with the baby to Seymour and were observed at 2.10 p.m. Changing the baby in the waiting area of the Seymour Hospital. At 3.30 p.m. You visited a friend at Puckapunyal, Ms Donna Duff. She was one of the persons to whom you had continued to claim that you were pregnant.

In December 1998 you had discussed babies with her and about two days before 3 February you had told Ms Duff that you were booked into the Royal Women's Hospital to have a caesarean on Monday 15 February. On this afternoon, you claimed to have had the baby at Seymour Hospital after your waters broke and that, being a natural birth, you had signed yourself and the baby out of the hospital. You told Mrs Duff that the baby was four hours old. It was named Kallista Rose, having been conceived with Robert Russell at Kallista and Rose being your grandmother's name. On the same afternoon you informed your daughter Christine of the birth.

Ms Duff accompanied you back to Werribee where the police, having already been alerted by Mr Russell, had your house under surveillance. You were arrested soon after. In the meantime you had contacted the police to complain about a noisy party.

In the course of a subsequent police interview, although you admitted the offence of child stealing, you told a number of lies. These included denying that you ever suggested you were a health care worker or that you were from Community Services and denying that you placed the oil burner on the floor. You falsely claimed that you gave Mrs Woods Panadeine tablets and falsely denied telling her that the tablets were for natural therapy. Consistent with your pleas of guilty you now admit these matters.

The aftermath of this incident was that you were certified on 16 February and taken to Mont Park as an involuntary patient. You remained there for two weeks. A treatment regime of anti-depressants, tranquillizers and the anti-psychotic drug Risperdal was instigated. You have subsequently been at the Metropolitan Women's Correction Centre at Deer Park where treatment has continued under successive prison psychiatrists although you are no longer prescribed Risperdal.

It was submitted by Mr Hayden that you were in a highly emotional state on the Saturday morning. I am prepared to accept that you were in an emotional state but your actions were controlled and your activities obviously planned. Indeed, you had told Mr Russell earlier that morning that you were going to collect the baby from Tracey at Seymour.

It was also put by your counsel that it was inevitable that you and the baby would be located. He pointed to the use of telephone numbers which could be traced to you, your exposure to the Woods and to Mrs and Mrs Fordham, Mrs Woods' parents, and your use of the name "Julie" on the telephone. All this may be so and it may well be that your complaint to the police about the rowdy party was in reality a cry for assistance in resolving the situation you had created and which was now out of control.

It is not suggested that you did not properly care for Allie while she was in your possession. You fed and changed her and you had equipped yourself with every possible accessory which might be required for the baby's well-being. That, however, was not something of which Mr and Mrs Woods were aware during the 14 hours their baby was missing. As is to be expected, these events have had an ongoing affect upon their lives. Apart from the financial loss occasioned by the fire, the Woods have lost irreplaceable items of sentimental value including a video record of Allie's birth, her first bath and her arriving at home. Additionally, Mrs Woods has experienced post traumatic stress disorder and required counselling to combat feelings of insecurity concerning for the safety of her family and incapacity to place trust in others. Mr Steven Woods, who also underwent counselling, has an understandable concern about the future well-being of his family. Nor is it surprising that Mrs Woods' parents, Beryl and Wallace Fordham, were traumatized by these events.

Before turning to the evidence presented on your behalf, it is desirable to briefly refer to the nature and factual basis of the offences to which you have pleaded guilty. The charge of arson with intent involved the placing of the oil burner adjacent to the doona which covered the sleeping Mrs Woods. The plea of guilty was accepted by the Crown on the basis of the reckless endangerment of the life of Mrs Woods by this similarly reckless act. This was in contrast to the placing of the oil burner in that position for the specific purposes of damaging that property and thereby endangering Mrs Woods' life. Additionally, and significantly, the Crown did not seek to assert that this action by you was other than coincidental with the stealing of the child.

The offence of aggravated burglary was predicated upon an entry into the Doncaster premises with the tablets and oil burner for the purpose of drugging Mrs Woods and taking the baby whilst she was incapacitated. This may be regarded as a somewhat technical approach to the facts which more simply lend themselves to a charge under s.19 of the Crimes Act 1958 of causing a person to take a substance knowing that it is capable of substantially interfering with their bodily functions. In any event, the actions constituting aggravated burglary were directed solely to the stealing of the baby. In the context of this case the most serious of the offences is that of child stealing. In my opinion, the general public would be both surprised and concerned to learn that the maximum penalty for child stealing is only five years imprisonment. I recommend that Parliament consider the appropriateness of such a penalty in any future review of sentencing.

Finally, the court was informed that both the Crown and the defence had agreed that the sentences for each of these offences should be served concurrently. It is trite to say that in exercising its sentencing discretion this court is not bound by any such agreement between the parties.

In the course of your plea, the court was provided with a number of psychiatric and psychological reports.

When you were seen on 19 February 1999 by Mr Ivor Jones, a psychiatrist, he described depressive symptoms which had possibly been present for some years. Dr Justin Barry-Walsh, a forensic psychiatrist, who first saw you in May 1999, also diagnosed you as suffering from a major depressive episode at the time of these offences. He noted that you had also developed a heavy substance abuse problem taking up to 200mg of diazepam a day. Dr Barry-Walsh expressed the opinion that your offences "are the product of a psychologically disordered woman acting in a highly irrational way and are indicative of the manner in which her deception took on a life of its own and distorted the way in which she perceived and considered her actions. Her false pregnancy and its conclusion in a very maladaptive and ultimately destructive way met Ms McKinley's bottomless need for acceptance, love and sense of identity and belonging. At the time of the offending Mrs McKinley was depressed and heavily abusing benzodiazapines. These two factors would have further impaired her judgment and rendered her more impulsive. However, this impairment would not have been sufficient to render her incapable of appreciating the nature and quality of her actions or reasoning that they were wrong. Indeed, her behaviour at the material time suggests considerable organization and planning." .

A view of your psychological motivation is found in the report of the psychologist, Ms Sue Dane, who was involved in your treatment in the Metropolitan Women's Correctional Centre. It is in these terms: "Julie's early childhood and adolescent experiences have led to the development of several psychological vulnerability factors. Specifically, an impaired sense of self, beliefs of inferiority and worthlessness, an inability to trust others and dependence in personal relationships, unresolved issues of grief, loss and anger and a profound fear of rejection and abandonment. Her coping strategies to avoid being overwhelmed by painful feelings and memories have been through disassociation, an unconscious defence against the intolerable, denial, deception and manipulation, and the abuse of prescribed medication".

The court was also provided with the report of a clinical and forensic psychologist, Ms Erika Leonard, who also gave evidence on your behalf. Ms Leonard stated you were not psychotic, nor do you have a psychopathic personality, but she was of the opinion that you have a borderline personality disorder and that that condition would have developed during your teenage years. Additionally, in the course of her evidence, Ms Leonard expressed the view that you probably suffered from post traumatic stress disorder which would further disturb your thinking, judgment and action.

Nonetheless, although your plans might have been out of touch with reality, Ms Leonard regarded them as fanciful rather than delusional.

In summary, the expert evidence indicates that your actions, whilst carefully planned, were committed when you were in an emotionally disturbed state.

These incidents do not, however, constitute your first offences. You also have a large number of prior convictions for offences of dishonesty. These resulted from appearances at Magistrates' Courts in October 1994, November 1997 and June 1998. A breach of an intensive corrections order imposed for the November offences resulted in you being sentenced to 148 days imprisonment in June 1999. The earlier offences related to false premiums you wrote to obtain commissions when your husband, Alan Stevenson, was employed by the AMP insurance company. The offences in November 1997 involved the writing of a number of false prescriptions for Valium as did the offences of June 1998 but they also concerned obtaining money from clients while falsely holding yourself out as a psychologist. To this end you had created a false diploma from Latrobe University.

Additionally, some of the November 1997 offences were committed against persons who may be described as vulnerable. For example, when working for an organization called Paraquad you stole a cheque and a video from a quadriplegic person. Similarly, when employed by the Silver Circle Agency you stole six blank cheques from an elderly person suffering from dementia. This was done over a period of months and the cheques were presented for a sum totalling more than $10,000. While employed by the Home Support Services of the City of Hobsons Bay you took cheques from one elderly person and a prescription from a paraplegic lady.

Whilst these are offences of dishonesty and of a different character to the present charges, the manipulation of vulnerable people, in the latter case, a new mother seeking assistance, is a feature which is common to both sets of offences, albeit the psychological motivation may be somewhat different.

You have now been in custody for almost one year. During that time you have made considerable attempts at rehabilitation. You have undertaken a number of courses including building self esteem, relationship skills, stress management and drug awareness. In the report of Ms Dane, she states that you have worked diligently in your seven months of psychotherapy with a firm commitment to the program and a willingness to confront difficult and painful issues. She states that you are beginning to recognise your maladaptive strategies, to acknowledge your past use of deception and manipulation in your intimate relationships, and to understand the part they have played in your life. Ms Dane recommends ongoing psychotherapy. This view is shared by all the experts.

You also have the support of a number of people. These include the Anglican prison chaplain, Mrs Janice St James, who told the court that you were not only remorseful, but repentant for what you had done. I accept that evidence. She said that you wish to affirm your faith within the Anglican church and, at her initiative, a pastoral support group from St Marks Emerald has been visiting you in prison. The fact that that relationship will continue upon your release was confirmed by a member of that group, Ms Magda Lane.

Your daughter, Christine Stevenson, told the court of your close relationship with her and your love of children and popularity amongst her girlfriends. She confirmed that you were happiest when there was a child or baby around. She stated that you have bonded well with your grandchild Braden.

The paternal grandmother of that child, Ms Wendy Wilson, confirmed that fact and spoke of her friendship with you.

Your partner Robert Russell told of his commitment to you and his intention that you live together upon your release.

Additionally, the court was informed of an offer of future psychiatric treatment. Given the current treatment you are undertaking and support you now have and will have in the future, your prospects of rehabilitation are reasonably good.

I take into account in your favour your remorse. Your pleas of guilty and in particularly your early guilty plea to the offence of child stealing entitle you to a sentencing discount.

Further, I have regard to your traumatic life experiences and your disturbed and emotional state at the time these offences were committed which serves to explain your conduct and to a limited extent reduces its culpability. Nonetheless, the planned taking of eight day old baby by deliberately incapacitating the child's mother is a grave offence. You chose your target, a vulnerable young mother whose trust you obtained by your deceitful conduct. The taking of a very young baby in any circumstances, let alone the present ones, would be any mother's and indeed any father's worse nightmare.

This is not a case where psychiatric illness precludes weight being given to the principle of general deterrence and although it is not a common offence, it is important that those minded to commit it should be deterred from pursuing such a course.

Furthermore, your prior record of dishonest and predatory behaviour requires that specific deterrence be an element in any sentence imposed.

Balancing as best I can the principles of sentencing enunciated in the Sentencing Act and in the light of the relevant maximum penalties available, I have concluded that the following sentences should be imposed. On the charge of arson with intent you are sentenced to be imprisoned for three years; on the charge of aggravated burglary you are sentenced to be imprisoned for two years; and on the charge of child stealing you are sentenced to be imprisoned for three and a half years. I direct that six months on the charge of arson with intent be served cumulatively with the sentence for child stealing. This results in a total effective sentence of four years. I think you would benefit from a relatively long parole period and I fix a minimum period of two years before you become eligible for parole.

Further, I declare that the period to be reckoned as already served under the sentence is 352 days inclusive of today's date. I direct that there be noted in the records of the court the fact that this declaration was made, and its details.

At a glance

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Judgment (60 paragraphs)

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