R v Monks [2001] VSC 516

Supreme Court of Victoria|2001-12-20|Before: COLDREY, J.

Claude Monks, having been found guilty by a jury of the murder of your de facto wife, Viola Margaret Klein, at Kyabram on 27 September 2000 it is now my responsibility to sentence you.

In determining the appropriate sentence it is necessary to briefly canvass the circumstances surrounding the commission of this offence.

About 10 years ago you commenced a relationship with the deceased, Viola Klein. From that association a child, Grant Monks, was born. For about six years preceding Mrs Klein's death you, Mrs Klein, her son Ashleigh Klein and Grant Monks resided at 3 Hawkins Street, Kyabram. Unfortunately Grant suffers from a kidney ailment which may at some future time require a kidney transplant. Both you and the deceased, Viola Klein, were suitable donors, with Mrs Klein being the preferred donor.

According to your adult son, Earl Monks, throughout Grant's life you have complained constantly that his mother was not feeding him the correct foods. You also nurtured the view that Ashleigh Klein was treating his little stepbrother roughly. I should say immediately that there is no objective evidence to support either allegation.

It is clear on the evidence that these were matters about which you became increasingly obsessed. Ultimately on 21 February 2000 you assaulted Ashleigh Klein while warning him to keep away from your son, Grant. As a result of that incident Mrs Klein obtained an intervention order against you. You left the family home and commenced to live at 38 Park Street, Kyabram.

Subsequently Mrs Klein obtained custody of Grant. Although you had access rights the custody situation became another grievance which you harboured. You told your son, Earl, about four months before Mrs Klein's death, that you wanted to get out of Kyabram and take Grant with you. During this period you attempted to have your friends sign a petition which you had drawn up in which you sought custody of Grant.

Added to your allegations about your wife's conduct was the assertion made to a number of your friends that your de facto wife was a slut and was sleeping around. Whether you believed this or not is problematic, but it is not suggested that such assertion had any factual basis. You also expressed the view that Viola Klein's family were a bad influence on your son.

As time passed you became increasingly obsessed about Grant's situation and what you perceived to be his treatment at the hands of the Klein family. Indeed a friend of yours, Justin Thomson, told the court that you frequently blamed Viola and her family for the position you found yourself in.

Shortly after moving into the Park Street house you told Mr Thomson that you would get Viola for what she had done to you. About three months before the fire you asked Mr Thomson whether, if you were to mix medications and be on drugs at the time you killed someone, you would get an easier sentence. Mr Thomson's response was, "You'd probably get off because you're nuts". As became apparent, however, you were not speaking in jest.

About a month or so before the fatal September fire you repeated to Mr Thomson that you would get Viola for what she had done to you. There could be no doubt that by this time you were contemplating killing her. About two weeks before the fire you spoke to a friend, Alexander Shaw, and repeated two or three times in an excited fashion, "I'm going to kill her. She's only a slut, but I'm going to kill her". This was a reference to Mrs Klein.

Mr Shaw said, "You're mad, that's rubbish. You will go to gaol for that". You responded, "I don't care". At much the same time you encountered another friend, Mark Matthews, at a doctor's surgery in Kyabram. You there said of Mrs Klein, "The slut is sleeping with all these blokes and I know who they are". You also reiterated your belief that Ashleigh was mistreating your young son.

One week prior to the fire you visited Mrs Cheryl Simpson, a friend of over 20 years duration, where you reiterated your comments about Grant's health and Viola sleeping around. You told her you thought Viola was the problem, that if she was not there there would be no problem. Significantly you said to her, "I should just put her in the van and burn her". This, of course, is precisely what the jury found you to have done.

On the day before the fire you told Mr Benjamin Simpson that you thought your young son was being treated roughly by Ashleigh Klein and that you could look after Grant better by yourself. While talking on that subject you asked Mr Simpson, "If I did something stupid would you hate me?" Later that evening you spoke to your friends, Shona and Justin Thomson. You left them with words to the effect, "I'm going to go and do something dangerous".

It was suggested during the conduct of your trial that you were a prattler, or a waffler, whose words should not be taken at their face value. However in the context of what occurred on 27 September they take on a sinister connotation. No doubt the jury, weighing all these pronouncements, alongside the mechanism of Mrs Klein's demise, did not regard them as either mindless mouthings or merely coincidental.

On 26 or 27 September you persuaded Mrs Klein, after several telephone calls, to visit your Park Street premises. The stated purpose was to move such items as toys from a room in that house, which you wished to rent, and to store them in the caravan situated in your backyard. Involved in this transfer was the cleaning of the caravan. Consequently at about 9.00 a.m. on 27 September you picked up Mrs Klein and Grant and drove to your address.

The evidence of your son, Grant, was that in your initial telephone conversation you asked him whether he wanted to come round and help you clean up the caravan. He had responded in the affirmative.

However, upon your arrival at the premises, you told him to stay in the lounge while you and his mother cleaned up the caravan. In doing so, you ensured that he would not observe or be part of any conflagration. Indeed, he was effectively quarantined in the house because you must have known that he was unable to reach the handle on the back door which would have given him access into the yard.

It was his estimate, being that of a seven year old child, that after five or 10 minutes he heard screaming. You then entered the premises through the back door, having sustained superficial burns to the face, ears, hands and the lower aspect of your left leg. The Crown case was that you had been exposed to flash burning when bending over to ignite the petrol you had previously spread in the caravan, possibly with one foot up on the threshold of the doorway. It was also the Crown case that a cigarette lighter found adjacent to the doorway was the instrument of ignition. The jury verdict indicates a broad acceptance of this scenario.

At the Kyabram Hospital you claimed to nursing staff that you and Mrs Klein had been in the caravan when a can of petrol had been knocked over and you had lit a cigarette, following which there was an explosion. You also told the nurses that Mrs Klein was still in the caravan. As far as this explanation is concerned, I note that you told Dr Lester Walton, a consultant psychiatrist, who prepared a report on your behalf, the explosion occurred when you lit a candle. You also claimed to have been knocked to the ground and thereafter to have entered the caravan and dragged your wife out.

At the trial you did not give any evidence, and it was upon the foundation of your account to the nurses that you sought to build a defence of accident. In this regard you engaged the assistance of a Mr Robert Barnes, whose field of expertise included the investigation of explosions and fires. However, even on his assessment, the amount of petrol involved was "a litre or thereabouts" which on any view was a considerable spillage and one unlikely to be followed by the lighting of a cigarette. In any event, it is not necessary to analyse the opinion of Mr Barnes as to the causation of the fire since the jury clearly rejected it.

Both the Crown expert, Mr John Kelleher and Mr Barnes, agreed that Mrs Klein was engulfed by flames while inside the caravan. Mr Kelleher and Mr Rodney Judson, a specialist surgeon in charge of the Burns Unit at the Alfred Hospital, were of the view that your injuries were consistent with your having been outside the caravan at the time that the petrol within it was ignited.

Mr Judson described your burns as being typical of a flash burn involving short exposure to high heat. In particular, Mr Judson expressed a view that if you had been engulfed in flame based on Mr Barnes's theory that you were inside the caravan the probability was that you would have had burns to the back of the head and neck and the exposed portion of your leg.

It is not necessary to dwell at length on the last moments of Mrs Klein. Having been engulfed in flames, she managed to escape from the caravan and people heard her calling out such expressions as "Help me, please, help me" and "I'm burning, I'm burning". She was also screaming out for her sons, Ashleigh and Grant. She was concerned about Grant's wellbeing and of the need to contact Ashleigh.

Witnesses described Mrs Klein lying on the ground with the clothing burnt from her body and evidencing extensive burns. On more than one occasion she said "God's punishing me. I don't want to die. I've got to live for my kids". When eventually examined at Kyabram Hospital about 10.00 a.m. on that morning, Mrs Klein was observed to have burns to all of her body except for the right foot. She soon became unconscious and an attempt to resuscitate her failed.

The jury were entitled to conclude that you made no genuine effort to assist your wife, another factor which belies any claim that the fire was an accidental one. Although your young son, Grant, claimed that you tried to open the side gates, this was in the context of his recollection of putting out the fire on your hands with a garden hose and also endeavouring to squirt water on his mother. Contemporary photographs of the scene would appear to indicate that the hose had not been utilised in this fashion, and the jury would have been entitled to conclude that this aspect of the evidence of Grant Monks represented the wishful thinking of a traumatised child.

In any event, if any such attempt was made, it was a very cursory effort, and no attempt was made by you to carry your wife through the house in order to take her to the hospital. Moreover, any attempt to communicate with police, ambulance or fire brigade was made by your son, Grant, on his brother Ashleigh's mobile phone and not by you.

Even allowing that you were in shock, your main concern appears to have been to drive yourself to the hospital for treatment. This you did. As a result of your own burns you were admitted to the Alfred Hospital on 27 September and remained hospitalised for about 24 days. Part of your treatment involved a tracheostomy to combat any swelling from inhalation burns. As Mr Judson said, one would have expected the superficial burns that you experienced to heal within three or four weeks. Although these partial thickness burns were painful, there was no suggestion that you suffered any ongoing physical disability from the fire.

The crime of which you have been convicted is the most serious on the criminal calendar. Moreover, in your case there are factors which aggravate its commission. On any reasonable view of the evidence, the offence was premeditated. It involved not only the dispersion of petrol throughout the caravan but the luring of Mrs Klein to come to your house and to enter the van. Having caused her to be engulfed in flames, you left her to suffer in agony until, perhaps mercifully, the depth of her burns destroyed the nerve endings beneath her skin.

Thereafter, you falsely claimed that what had occurred was an accident, an assertion, repeated by your counsel, on your instructions, at your trial. You are not, of course, to be punished for the conduct of your defence, however, the course you have taken deprives you of the benefit of any remorse.

Violent responses to the emotional problems arising out of domestic relationships cannot be tolerated by the courts. The courts have a duty to deter those who may be minded to resort to such violence. Viola Klein, like every woman in this community, had the right to terminate her relationship with you, and to obtain and maintain custody of her son without suffering fatal consequences. It follows that general deterrence is an important element in any sentence to be imposed.

In considering the appropriate sentence there are matters personal to you which I must take into account. Before doing so, however, I wish to say something about Viola Klein. Viola Klein was aged 48 at the date of her untimely and tragic death. The Victim Impact Statements make it abundantly clear that she was a dearly loved member of her family. Viola Klein lived for her four children, upon whom she lavished her support and love.

Her only daughter, Trudy Klein, described her as the kindest person she had ever known. Her mother was a person in whom she could confide and in turn receive advice. For Ashleigh Klein and Grant Monks, their life with their mother was full of precious moments of love and laughter. As Ashleigh put it in an eloquent and moving statement: "There was and is no-one else in our family, or anyone else, who could take care of us as well and with as much love as Mum gave to us boys and all of her children." You can never say, 'I love you' enough to the people closest to your heart. That ability has been destroyed forever.

Ms Dianne Northausen, who is now the foster mother of the two younger boys, ends her statement with these words: "Viola's legacy to this world is the love that she has instilled between Grant and Ashleigh, an incredible bond. She taught them love, respect for one another, patience and commitment to each other. If only the whole world could see that, it would be a much better and safer place to live in."

It is fair to say that each of the persons close to Viola Klein have been devastated by her death. In Trudy Klein's case it has led to psychological counselling for symptoms akin to post traumatic stress syndrome. While in the case of Ashleigh and Grant, the absence of their mother to share in the achievements of their lives is a constant source of sadness.

Claude Monks, you are currently 58 years of age, being born on 14 February 1943 in Tasmania, as the seventh of 13 siblings. You attended Moona Primary School until about 12 years of age. You were apparently a poor student, prone to truancy. Thereafter, you had a number of jobs, including those of bricklayer, painter, plasterer, fork-lift driver, and machine operator. However, you have not worked for many years because of neck and back injuries, and 15 years ago you became a disability support pensioner. You have no relevant prior convictions.

At the age of 28 you came to Kyabram where you met your first wife, Yvonne. There were three children from that union, now aged between 25 and 18. Your contact with them is irregular. This relationship having failed in 1985, you met Mrs Klein in 1990, and in 1991 you established a residence together. A son Grant was born in April 1993. After you separated from Mrs Klein in February 2000, you apparently spent some time in Queensland before returning to Kyabram.

A number of medical reports tendered in the course of your plea indicate that commencing in 1973 you have received spasmodic treatment for a bipolar mood disorder. At one stage in 1978 the differential diagnosis of paranoid state, or paranoid schizophrenia, was made. However, subsequent short periods of hospitalisation between 1982 and March 2000 have essentially involved treatment for depression with such anti-depressive medication as Zoloft.

In April 2001 you were seen by Dr Lester Walton in Port Phillip Prison. He described you as being of "lowish, but normal intelligence". You told him that for some months preceding this incident you experienced some auditory and visual hallucinations. These have now resolved. It is not suggested that they played any part in the commission of this offence. At the time of his examination, Dr Walton diagnosed you as suffering from a depressive disorder. In his opinion, this was largely reactive to your current predicament, and was responding to therapeutic treatment. Dr Walton also expressed a view that you may have been suffering from significant depression following the breakdown of your relationship with the deceased.

I am prepared to accept that you were depressed about your situation at the time of this offence. Such depression, feeding off your desperate desire for custody of your son Grant, eroded your judgment. Consequently, I am prepared to take your emotional condition into account in mitigating to some degree what was otherwise a premeditated killing. However, your situation falls well short of attracting the principles enunciated in R v. Anderson, and R v. Tsiaras. Accordingly, as I have stated, general deterrence is an important element in the sentence to be imposed. Further, given your disinclination to acknowledge any responsibility for your crime, some weight must also be given to specific deterrence.

Your past history indicates a willingness to work when able to do so, and this, together with your lack of relevant prior convictions, suggests a capacity to rehabilitate yourself. I also have regard to the fact that your isolation from, and alienation of, your son Grant, who you dearly love, will itself be a significant punishment for you. Finally, your age of 59 years must to some extent be taken into account in determining the sentence to be imposed.

All that being said, this was a grave offence. It was a premeditated murder, carried out in circumstances which must have been horrific for the victim. Your actions also had the effect of depriving your son Grant of a most compatible kidney donor. Even allowing for your age, the offence requires a severe sentence.

Balancing as best I can the sentencing principles enunciated in the Sentencing Act I have concluded that the appropriate sentence is that you be imprisoned for a period of 20 years. I fix a minimum period of 15 years before you become eligible for parole. Further I declare that the period to be reckoned as already served under this sentence is 437 days inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made, and its details.

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