R v Mulhall [2012] VSC 471

3 There followed in 1973 and 1974 three counts of wilful and obscene exposure in public, initially resulting in an adjourned bond, then 6 months' imprisonment with a minimum of 3 months and finally probation including psychiatric conditions. Your counsel informs me all of those related to light hearted mucking around. Whilst I am not entirely confident about your version of it, they were a very substantial time ago and of not great significance to the offending for which I am to sentence you. You also had a count of larceny in a dwelling in 1973 for which you received 2 years' probation.

4 You next have offences that occurred in 1996 being some 22 years later. They were a count of burglary, two counts of theft, unlicensed driving and a count referred to as engage in conduct causing physical harm. The latter charge is in fact what is referred to as conduct endangering a person and related to the shop break and theft with which you were involved. A person ran out to stop you and when you were driving the car away from the scene, that person was placed in danger. You received a 6 months' sentence of imprisonment suspended for 12 months. You had to perform community work, pay restitution and undergo assessment and treatment for alcohol and gambling.

5 Once again, there is quite a hiatus until you appear in court again in 2007 where you were breached for the previous matter some 11 years later for some unknown reason, together with charges of fail to answer bail, theft, cultivation of narcotic plant being cannabis and possessing cannabis. You were fined an aggregate of $500. In terms of the breach, the order was confirmed. And finally on 16 September 2007 a further wilful and obscene exposure in public for which you received a bond with conviction. None of the prior convictions are of any real significance in respect of this offence to which you have pleaded guilty, but go generally to the issue of your character in a minor way.

6 In this case I received 17 victim impact statements, being statements from Nadine Power, Aaron Woolridge, Renee Woolridge, Cheryl Rowley, Adam Power, Lorna Rowley, Avlon Rowley, Stewart Rowley, Linda Rowley, Lesley Woolridge, Imelda Renouf, Gail Goodwin, Priscilla McAllister, Barbara Wilson, Tara Mulhall, Bruce Graham and Maria Free. Of those 17 statements, three were read to the Court by the persons who made them, being the three children of Joy Rowley, Nadine Power, Aaron Woolridge and Renee Woolridge and her mother Lorna Rowley's short statement. The other victim impact statements are from her sisters, aunts, relations, son in law, friends and her ex-husband and the daughter of you James Mulhall.

7 I have to ensure that in relation to the matters referred to by your daughter, Tara Mulhall, that I do not punish you for what she states in her victim impact statement relating to conduct on other occasions and I will ensure that I do that. The import of her victim impact statement is such that it reinforces to a degree the difficulty that people have experienced in detaching themselves from you once a relationship has commenced. It also reinforces the violence that you demonstrated towards Joy Rowley in the period prior to her death, and it would not be permissible to use the statement for those purposes.

8 I do not intend to traverse each of the victim impact statements. The three that were read out to the Court took approximately two hours. They are extensive and contain inadmissible material. Victim impact statements are very important documents and the necessity for a Court to determine and make rulings on the issue of admissibility and relevance on the day of the hearing, could only traumatise the victims further. Thus as I stated on the day of the plea it is important that the victims receive the proper assistance and advice as to the preparation of those documents and accordingly all of those involved in assisting people to make victim impact statements need to be aware of what can and cannot be included in such a statement, together with the purpose for which such a statement is to be made. Despite the inadmissible material, four of the statements were read in their entirety and all of the documents were in fact tendered and I have read them. I have taken into account the relevant and admissible material contained therein. I have put to one side the material that is not admissible and not of any assistance for the process of assisting me in determining the appropriate sentence.

9 There is no doubt that all of the people who have put in a victim impact statement are bereft. You have taken from them someone they loved, someone they cared about deeply and that will never change. Joy Rowley will not return to their lives. Your actions have ensured that.

10 Equally, it must be understood by all of those involved in this matter that the sentence that is going to be imposed on you, James Mulhall, for the offence of murder is not an indication of the worth of their loved one. That is not how the system of justice works. I am obliged as a matter of law to take into account various matters which I will mention and deal with shortly and determine was is the appropriate punishment for the offence to which you have pleaded guilty, not about evaluating the worth of Joy Rowley. Her worth is calculated by those who loved her and her worth is really immeasurable, not capable of being reflected by a sentence of imprisonment on the man who took her life. I will take into account the victim impact statements as one of the matters to be considered in determining the appropriate sentence

11 I was most distressed to hear each of the children reliving what they envisaged the murder to be like. That appears to me to be such an sad thing for them to be doing to themselves and not something, I would think, that their happy mother would want them to do. She was most obviously a real joy and pleasure in their lives and they feel her loss deeply. But as I said on the day of the plea, they need to remember her with love and pleasure for how she lived, not just remember the horror of how she died. Having read the victim impact statements it is obvious she was a woman who made them laugh, smile, love and care. To honour her they should, if it is possible, continue to love, smile, laugh, care ... and cry sometimes, but above all remember the happiness that she brought into their lives. To remember only how she died and what she and they will not have in the future, is to ultimately treat the life that she has lived as not being the most important thing about her, and I would urge them all not to do that.

12 I need to describe briefly the circumstances of your offending and to do that I need to explain a little of the background of your relationship with Joy Rowley. She had moved to Observation Drive, Rye in 1992 after her divorce from Les Woolridge, a person with whom clearly she maintained a good relationship. Her house had been destroyed by fire some years before and she had rebuilt it and was working as a housekeeper at the time of her death. You had migrated to Australia with your parents and siblings in 1970 when you were aged about 16 and you had lived in the Moorabbin area. You had previous relationships from which there were children. Your last relationship was described as a violent one. That was with Joanne Nash, the mother of your daughter Tara. You met Joy Rowley in approximately November 2010 and you moved into the premises with Joy Rowley and commenced a relationship with her a short time after moving in.

13 During the summer months Joy Rowley rented out the premises and she went to live with you at an address in Marvin Avenue, Rye. However, on 10 February 2011, police were called to her home after Joy Rowley made a complaint of being assaulted by you, that you had strangled her as she slept, having assaulted her with your fists and a large hunting style knife. As a result of the alleged assault, she had a dislocated shoulder and severe bruising to her torso and face. Ultimately you were arrested on 10 March 2011 and subsequently charged with this assault. An intervention order was put in place at Frankston Magistrates' Court on 21 March 2011 which was supposed to ensure that you did not approach within 200 metres of her residence or contact, assault or intimidate the deceased. You were bailed in respect of the charges to 22 October 2011.

14 It is unknown when you recommenced your relationship with Joy Rowley but there is no doubt on 2 October 2011 you were at Joy Rowley's premises when you were in fact stabbed in the face by another male. Witnesses indicate that you were staying at the premises of Joy Rowley several days a week despite the intervention order that was in existence. You were at that time supposed to be residing with your mother and younger brother in Blairgowrie. You were both in breach of the intervention order, an unfortunate but not uncommon occurrence.

15 On the morning of 14 October 2011 you and Joy Rowley went to Frankston, did some shopping and went to the Grand Hotel at about 12 noon. You were observed to leave there at about 1.00 pm via the CCTV cameras. You went to the Rosebud Hotel arriving at about 2.00 pm where you consumed more alcohol and returned to Joy Rowley's house at approximately 4.00 pm. You indicated to the police that both you and Joy consumed more alcohol in the form of wine together with consumption of marijuana, all of which appear to be consistent with the finding of matters such as an empty wine bottle, wine glasses and remnants of marijuana near the body of Joy Rowley. It would seem that at some stage during that evening you and Joy Rowley had an argument and despite having read the record of interview it is difficult to ascertain precisely what it was you were arguing over, although it appeared to have something to do with the incident a couple of week earlier when you sustained injury to your face. You initially used a tie to strangle her, then your hands and finally a pillow to smother her until she finally stopped moving and breathing. You placed her on the floor and put a pillowcase over her head so that you didn't have to look at her face as you were scared that her eyes may have been protruding or similar. You then went to sleep.

16 In what is best described as a semi-rambling record of interview you protested constantly about how much you loved Joy Rowley but your behaviour was not in any way consistent with that professed love. You left her in her home over a period of days whilst you did other things outside the house. On the morning after you killed her you drove her car to an ATM where, using her ATM access card, you withdrew $600 from her bank account. You went to the TAB and placed a bet on the races because it was Caulfield Cup Day as you informed the police. You then went to your mother's house in Blairgowrie and you watched the Caulfield Cup with your mother and your brother. You later returned to Joy's house and subsequently left, bought some pizza and returned. You told the police that you had a bet on the races so that you could back the jockey that Joy indicated she supported. At question 165 you were asked about what happened on Saturday morning. You said: "I was awake at the crack of dawn. I realised what I'd done, I realised what I'd done. I don't know ... I don't know", which means by Saturday morning you were sober enough and not affected by cannabis sufficiently that you were aware fully of what you had done. Yet you made no move to call the police at that stage and instead went, as I said, and had a bet, went around to your mother's and bought pizza later that night. It was submitted that all of this behaviour in the days following Joy Rowleys death was living out what Joy had planned to do. I do not accept that proposition.

17 On the Sunday you drove Joy's car to the casino about 10.00 at night. You returned home between 3.30 and 4.00 am. You were then asked what did you do at question 198. This was upon your return from the casino and you said: "I just went up and seen her again and the place was starting to smell and then I thought what am I going to do like and I panicked. I decided to drive here", meaning the police station. What you did was you packed a small bag and you stated, this being the Monday morning:

I stuffed a couple of jackets in a bag that Joy had given me. I don't know why I took fucking two jackets and a t-shirt. Don't know why I've even done that. Cause it was stupid, I'm stupid. And I took her keycard out of her wallet cause she owed me some money anyway but that didn't matter but I took it.

You had already accessed her account to spend the money on the Caulfield cup and the casino, so you had clearly done that on the morning after you killed her and not on this Monday, You said when you saw the police cars near the police station you just kept driving, that there were too many and you decided to go to Shepparton. You caught the train to Shepparton and you told the police you then just stayed in your room for a day, watched some television in Shepparton, tried to sleep.

18 On Tuesday 18 October you called Rosebud Police Station and reported that you had killed Joy Rowley. As a result the police attended at the home of Joy Rowley and found her body. You then, after making that call, had some drinks before catching the train back to Melbourne and walking into the St Kilda Road Police Station at approximately 8.45 pm. In your interview when asked why you hadn't walked away when Joy was supposedly verbally abusing you, your response was (question 325):

That's what I should have done then. I was so drunk and so stoned. Exactly, exactly, exactly I should have got up and left. Exactly, exactly.

19 You had already told your brother before travelling to Shepparton that you killed Joy. You had altered your appearance before getting on the train to go to Shepparton by having your long hair cut off and having a buzz cut as well as removing your goatee beard. You also told your daughter Tara shortly before going to the police.

20 Bank records show that you used Joy Rowley's ATM card on seven occasions between 15 and 18 October 2011 and withdrew a total $2,590 leaving a balance of just $5.19 prior to handing yourself into the police.

21 One of the consequences of your failure to report the death of Joy Rowley is that her family were deprived of the ability to have an open casket at her funeral or to actually say goodbye to her in any physical sense as the state of the decomposition of her body was such as to render that impossible. That was a matter that caused them great distress.

22 This matter proceeded as a straight hand-up brief, no witnesses were called, there was no challenge to the evidence and you pleaded to a charge of murder at the Melbourne Magistrates' Court. The prosecution accept this as an early plea of guilty and that is correct. This appears to be a totally motiveless crime in terms of the nature of what you described as the argument. Your actions towards someone that you profess to love deeply are inexplicable. You have treated her body in a cavalier and indifferent manner. You have stolen her car, her savings and spent them on gambling and drinking. Whilst it may have been initially accepted that you were in some form of alcoholic fug or shock, that cannot have persisted for the days that followed. As you indicated, you were aware that you had killed her. You were aware that she was dead. Yet you left her body in her house and proceeded to spend her money.

23 Your counsel submitted that I ought not be satisfied that this was an aggravating feature of the crime and for that submission relied upon the contents of your record of interview as demonstrating the confused behaviour of a man shocked by his own actions. As indicated, I do not accept that it can be viewed in just that light. The behaviour is purposive. It is not the behaviour that one would expect to be consistent with shock or horror at your actions but rather doing things that you wished to do, such as betting or gambling at the casino. Your counsel did not rely upon alcohol as a mitigating feature and there is a report from Dr Cunningham, who examined you in terms of your mental health, who makes it clear that there is no Verdins type of discount that would be applicable in your case.

24 I also have to take into account your personal circumstances. You are now 58 years of age, and you are the eldest of three boys, born in Dublin. Your father was a housepainter and your mother worked in hospitality.

25 Your father initially emigrated to Canada to try to find work but returned to the family home when you were aged approximately 2 years. You did not enjoy a good relationship with your father but you had a strong and caring relationship with your mother. Your father was described as a violent alcoholic. Your family migrated to Australia when you were around 16 years of age and you did not attend school in Australia from the time you arrived here.

26 In a report prepared by Dr Aaron Cunningham dated 1 October 2012 he indicates that you informed him that you had what he described as oppositional behaviour during your childhood and you were placed on probation at the age of 12 due to you breaking into houses. You worked with your father completing a painting apprenticeship and continued to work with him until your father's death.

27 You married at a relatively young age to your first wife Margaret and you have two children Jason aged 40 and Melanie aged 38. You married as Margaret was pregnant. You remained married to Margaret for some 14 years and you describe Margaret as a gentle woman. Your son is now a screen printer and your daughter a stay at home carer for her child. You have maintained a relationship with both of them. Your next partner was Joanne. You had an affair with Joanne whilst you were married to Margaret. You left the marriage to live with Joanne who was pregnant with Tara who is now aged 32. You married Joanne some time later and you described the relationship, in the information you provided to Dr Cunningham, as "an unstable marriage punctuated by cannabis and alcohol abuse. He described the couple as co-dependent with regard to their drug and alcohol abuse and mental health issues. He stated that there was family violence within the relationship". You lived with Joanne in Rye for some time before moving to live in New Zealand for some three years and then returning to Victoria after you had another extramarital affair. Your relationship with Joanne ended just over three years ago.

28 Your father died in 1979 from lung cancer. Your mother remains living in Blairgowrie where you were residing officially at the time of this offence. She lives there with your younger brother Thomas who suffers from schizophrenia and you have a brother Joseph, all of whom support you and have indicated will continue to support you, as indicated by the references tendered on your behalf during the plea. After your father's death in 1979 you continued to work as a painter obtaining jobs through the local paper for the next three years. You then worked as a sub-contract painter until the age of 47. You then ceased employment finding the work too physically demanding, initially receiving the New Start allowance until you were placed on the Disability Support Pension in 2008. You are currently in the prison in the Chilwell Unit employed as a carer for older prisoners.

29 Dr Cunningham, a Forensic Psychologist, found that you had no intellectual impairment and that in terms of future risk you presented as a moderate risk and also that you had a substance use disorder with respect to your poly-substance abuse relating to both alcohol and illegal drugs.

30 In relation to the grief that you have expressed consistently about the loss of Joy Rowley, Dr Cunningham had this to say:

In summary Mr Mulhall presents with grief and loss related to the death of Joy. In my opinion Mr Mulhall presents with features of a dependent personality. In my opinion Mr Mulhall's grief is exacerbated by these traits of dependence. In my opinion Mr Mulhall presents with a history of dependent behaviour that leads him to cling to relationships. In my opinion Mr Mulhall's dependent traits have exacerbated his grief due to his fears of being alone and helpless.

31 Your counsel relies strongly upon your demonstrated remorse as a matter that may mitigate the crime. That is by ringing and informing the police of the death of Joy Rowley together with your confession to them, your very early plea of guilty to this most serious charge and your comments during the record of interview and subsequently about the intolerable loss that you have suffered.

32 The legislation indicates that you are, as is every person in Victoria, entitled to a reduction in the sentence to be imposed upon you as a result of your plea of guilty together with the very early stage at which it occurred and the degree of remorse that you have shown together with the assumption of responsibility and the point relating to facilitation of justice, that is not having to make any of these witnesses or any of the family go through the trauma of listening to a trial which I can assure all of the members of the family is indeed a traumatic matter. Whilst I do take into account all of those matters, together with your age and ensuring that the sentence imposed upon you is not crushing, I also have to balance that with many other factors such as just and appropriate punishment, denunciation and any aggravating features of the crime. The fact that this occurred in the home in which Joy Rowley lived and felt safe is of course an aggravating feature. That you had previously harmed her and assaulted her in a significant manner and had been charged with that assault indicates that you should have been alert and aware of your responsibility to ensure that you did not place yourself in a state or situation where you may have caused her harm, such as consuming the disinhibiting substances alcohol and cannabis, or losing your temper. It is unfortunate that the intervention order was not taken as seriously as it should have been.

33 General and specific deterrence are highly relevant matters to the sentence that is to be imposed in this matter. The previous assault upon Joy Rowley, whilst you are not to be punished for it, puts in context the necessity for specific deterrence in your case. Women are entitled to have domestic relationships with people that do not result in their death simply because their partner loses their temper or has too much to drink or a combination of cannabis and alcohol reduces their inhibitions. It is inexcusable and the law will do all it can to protect women from violent domestic partners. Murder is a serious crime it carries the maximum penalty of life imprisonment. The courts have consistently stated in relation to the crime of murder that killings of a domestic nature are no less serious than killings involving unrelated or stranger killings. Accordingly, whilst women are still dying at the hands of their domestic partners, the issue of general deterrence, in my view, remains very important.

34 I am required to balance all of the matters to which I have referred as well as determining and imposing a just and appropriate sentence, whilst also ensuring that the sentence is not crushing. Whilst I am mindful of your age, I am of the view that an appropriate sentence can be imposed which will allow you some prospect of being released from custody whilst you are still in early old age.

35 You are convicted and sentenced to be imprisoned for 19 years and I direct that you are to serve a minimum of 16 years before becoming eligible for parole. I declare pursuant to section 6 AAA that but for your plea of guilty the sentence I would have imposed would have been 21 years with a minimum of 18.

36 Declare that there have been 359 ( three hundred and fifty nine) days pre sentence detention served in relation to this matter and such is to be noted in the records of the court.

37 Application subject to section 464ZFB(1) for retention of forensic sample is granted.