R v Murphy & Watson [2001] VSC 347

8. Although the circumstances surrounding the commission of the offences have been canvassed in detail at the trial, it is appropriate to address them in brief form at this stage.

11. The background leading up to these offences is important. You had previously been in a relationship with Malyssa MacKay which had ended by February 2000. She had subsequently formed a relationship with the deceased Christopher Jewell. At the time of these events Christopher Jewell was living with Malyssa MacKay. She was pregnant to him and they planned to marry. You were not prepared to accept that Ms MacKay had entered into this new relationship with her new partner. You became determined to resume your relationship with her and Christopher Jewell stood in the way.

14. There was overwhelming evidence that you became extraordinarily obsessive about the relationship between Malyssa MacKay and Christopher Jewell. The evidence included lengthy phone calls to Malyssa MacKay, lengthy phone calls to a number of friends, a history of stalking, the writing of what can only be described as egocentric letters and the enlisting of friends to discover the state of the relationship. The conversations with Ms MacKay and others included threats to kill Christopher Jewell. The evidence demonstrated a high level of jealousy and possessiveness and a complete inability to appreciate or respect the rights of Melissa MacKay or Christopher Jewell.

17. Your threats to kill started to crystallise when you sought to enlist people specifically to kill Christopher Jewell.

20. By the 18th July 2000 you had put a great deal of preparation in train. You had a number of weapons at your disposal including a sawn-off shotgun, balaclavas, and handcuffs. You had assistance in the form of Clive Watson.

23. Together with Watson you attacked Christopher Jewell while he was at home sleeping after working night shift. The events constituting the aggravated burglary involving as it did an attack by armed men in balaclavas must have been a terrifying experience for him.

26. You stole his car, kidnapped him and took him to a spot in the Lederderg Gorge where he was left handcuffed, gagged and blindfolded in the back of his own car. Given the position of the body when discovered, it is unlikely that he moved from where he was left. You then removed and disposed of the number plates, his mobile phone and his wallet

29. You then returned to Melbourne and disposed of incriminating articles and sought to set up an alibi with Michel Nedic and Jasminka Sretenovic. During the evening of the 18th July and the following day you were in contact with Melissa Mackay.

32. The following day you returned to the Lederderg Gorge with a 5 litre can of petrol and burnt the car and the body of Christopher Jewell.

35. Your determination to avoid detection was demonstrated initially in your attempts to set up an alibi and a refusal to acknowledge any connection with Christopher Jewell's disappearance. In your final Record of Interview you sought to cast the blame on Watson for what had happened. You claimed that Watson had the gun, the handcuffs and the tape. You claimed that it was Watson's idea to take the petrol and burn the car. Perhaps the most remarkable aspect of your Record of Interview is the answers you gave concerning the fate of Christopher Jewell. In contrast to your professed interest in the welfare of Christopher Jewell you claimed when you returned to the car on the following day that you had no idea whether Christopher Jewell was dead or alive. You claimed to be squeamish because you had never seen a dead body before. In answer to question 1029 you said at the time the car was burnt "even now I don't know if the man was alive or dead".

38. When viewed against the objective facts namely your motive, your history of obsessional behaviour, the threats you made to kill Christopher Jewell, your attempts to engage the services of others to kill him, your planning prior to the 18th July 2000, the kidnapping, the removal to the remote location, the removal and disposal of the number plates and other identification, the attempts to set up an alibi, and the burning of the car the following day, it is not surprising that the jury rejected your professed innocence in your Record of Interview.

41. Your conduct viewed as a whole involved serious criminality and significant features of aggravation.

(1) You demonstrated an almost arrogant disregard of the rights of Malyssa MacKay and Christopher Jewell to pursue what the community would regard as the ordinary ambitions of life. Your behaviour shows that you were a calculating individual who was prepared to let nothing stand in the way of achievement of your desires.

(3) The aggravated burglary involved a terrifying attack on an innocent man who was asleep in his home. I am satisfied that the experience for him being awakened from his sleep and confronted by armed and masked men must have been a terrifying experience.

(4) The kidnapping involving handcuffing, blindfolding and incarceration in the boot of Watson's car would have been an equally, if not increasingly, terrifying experience.

(5) The false imprisonment in circumstances where the deceased was handcuffed and blindfolded in the rear of his own car in the Lederderg Gorge could only have been a further escalation of the terror that he had already experienced.

(6) The killing took place in circumstances where by the remoteness of the location, the steps you took to set up an alibi and the disposal of incriminating evidence you sought the maximum opportunity to avoid detection.

(7) Your endeavour to conceal the car and the body of the deceased by burning, not only made it impossible to ascertain the cause of death but could only add to the anxiety of his family and friends.

(8) The crimes were accompanied by extraordinary callousness and lack of remorse.

52. The crimes you have committed include the most serious crime on our criminal calendar, namely, murder and your conduct constitutes a heinous example of it. As Justice Vincent has said on another occasion when imposing sentence

"The life of every person who shelters behind the protective shield of our law is inviolate and none can be unlawfully taken. This is both a profoundly important moral precept and a principle of law based on sheer necessity if we are to live together in a decent and safe community"[1].

The Courts are obliged not only to apply principles of general deterrence but also on behalf of the community clearly denounce such conduct.

57. It was common ground in these trials that Christopher Jewell was an innocent and decent young man who simply sought the ordinary aspirations of life. Whilst this cannot constitute an aggravating circumstance, it is consistent with the substance of the Victim Impact Statements which describe him as a gentle, loving and helpful person. The statements demonstrate the sense of pain experienced by those intimately affected by these crimes and again while they don't affect general sentencing discretions they "constitute a reminder of what he might be described as the human impact of crime".[2]

60. However , the considerations which I have adverted to so far are not the only matters to be taken into account in the determination of an appropriate sentence. Of course, each case, and each offender, must be considered in the light cast by all of the circumstances relevant to the specific offence and the individual perpetrator. You are now aged 31, having been born in August of 1970. Your father is 72 years of age and is a retired Gas & Fuel worker, and your mother is a housewife. Both parents are in indifferent health. You are the youngest of eight children, the eldest being 48 years of age. You came from a law abiding family and as your Counsel has pointed out, until this time you have not been in any trouble with the law.

63. You grew up with your family in Broadmeadows and shifted to Greenvale at the age of 15, and then to Melton at the age of 20. You lived for a short time in a caravan at the home of one of your sisters and then went to live in Melton South before returning to your parents at the age of 24. You have essentially lived with them right up until the time you were arrested. You went to Upfield Primary School, followed by Broadmeadows Technical School which you left at about the age of 14.

66. After leaving school you commenced studying drama at the St Martins Theatre in South Yarra and you engaged in fairly menial employment as a farm worker and a service station attendant, as well as being unemployed for some periods of time. You have had employment with the Ford Motor Company and in more recent times held positions as a crowd controller. You have also obtained acting jobs in Janus, Blue Heelers and Australia's Most Wanted. You have also had a role in a movie and obtained a number of jobs doing commercials. As was indicated in the course of the trial you have a history of being involved in martial arts and your Counsel has submitted that you were a fitness fanatic.

69. Your personal life has been described as fairly innocuous. You have never married and you have had few relationships. You instruct your Counsel that you have never drunk alcohol, smoked cigarettes or taken drugs. I have read a report from Elizabeth Warren, Forensic Psychologist, dated 10 September 2001 in which her intellectual testing obtained an overall result which placed you on the cusp of the borderline low to average classification of formal intelligence. I note from the psychologist's report in the history relating to a treating doctor and psychiatrist that you have suffered from depression for many years. Ms Warren concluded that you have clear traits of personality disorder. However, those traits do not constitute a case of a severe manifestation of that disorder. I note that Ms Warren says that the natural progression of the disorder is for a gradual and natural attenuation over time, with increasing stability of functioning often beginning in the third and fourth decades of life. Notwithstanding her view that your normal depression and suicidal pre-occupations will be increased and exacerbated for the foreseeable future, it would seem that, contrary to discussion in the course of the plea, you are not without prospects of rehabilitation with the effluxion of time.

72. In view of those matters, I am satisfied that you do have prospects of eventual successful re-integration into the community. I accept therefore that no need exists to have regard to the protection of the public or specific deterrence as sentencing considerations. Having said that, I regard the gravity of the individual offences, together with the need to deter others from committing like offences and the need to express the community denunciation of these crimes to be paramount sentencing considerations.

75. Although there are five separate counts on the presentment, it has been submitted that it is all part of one continuing criminal episode. Whilst to some extent that is correct, in another sense there is a distinction between what took place in Leith Avenue in Sunshine involving the aggravated burglary and the kidnapping, and what took place at the Lerderderg Gorge involving the false imprisonment and the murder. (the car theft being an integral part of both).

78. The sentence imposed for the murder should be imposed in the context of all the surrounding circumstances and there should therefore be a high degree of concurrency between the sentences. However given the serious criminality involved in counts one and two there should in my view be some measure of cumulation to reflect that criminality while ensuring that the overall sentence does not infringe against the principle of totality.[3]

81. Ultimately, I have arrived at the view that the appropriate sentences to be imposed upon you are: On Count 1, the count of aggravated burglary, you are sentenced to imprisonment for a term of six years. On Count 2, kidnapping, you are sentenced to a term of imprisonment of eight years. On Count 3, false imprisonment, you are sentenced to a term of imprisonment of six years. On Count 4, theft of a motorcar, you are sentenced to a term of imprisonment of 1 year and any licence to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for 12 months. On Count 5, the murder of Christopher James Jewell, you are sentenced to a term of imprisonment of 20 years. I direct that one year of the sentence on Count 1 and one year of the sentence on Count 2 are to be served cumulatively upon the sentence imposed on Count 5. That creates an effective sentence of 22 years and I fix a non-parole period of 16 years.

87. Clive Clayton Watson, the jury empanelled on your trial has found you guilty of one count of aggravated burglary, one count of kidnapping, one count of false imprisonment, one count of theft of a motor vehicle and one count of manslaughter.

90. As with Jason Murphy, you pleaded not guilty to all counts on the presentment but in the course of your trial you did not contest the first four counts and argued through your counsel that you were not guilty of murder but guilty of manslaughter on the basis that you did not intend to kill or cause serious injury to the deceased Christopher Jewell.

93. Again, it is appropriate to address some of the circumstances surrounding these offences.

96. You became involved in these offences because of the influence of the co-accused Jason Murphy. You became acquainted with him through a relationship at work whilst working as crowd controllers at the Salt Nightclub in South Yarra. You became aware that Murphy was obsessed with trying to get back together with his girlfriend, Malyssa MacKay and that Christopher Jewell stood in the way of that happening. You sold him a sawn-off shotgun for $200 about three to four months before these offences took place.

99. About ten days after you had given Murphy the firearm you became concerned that Murphy might kill himself with the gun and arranged to get control of the gun in order to render it inoperable and therefore harmless.

102. At a time when Christopher Jewell was still living in the caravan park, you rang Malyssa MacKay, warning her that Jason Murphy was distraught and wanted to kill her boyfriend and that he might harm her. You were also aware of attempts by Murphy to engage someone at the Salt Nightclub to carry out the threats against Christopher Jewell.

105. According to your record of interview you were then consistently subjected to Murphy calling you and harassing you, trying to enlist your help to deal with Christopher Jewell in some way. You were aware that Murphy was making threats to kill Christopher Jewell.

108. Ultimately, you agreed to assist Murphy by going with him, abducting Christopher Jewell on the pretext that it was a robbery and taking him somewhere, to some spot that had already been planned. Your understanding of the arrangement was that he would be left in the back of his car to use your words "scare the living shit out of him" and to make it look like a robbery. In your answer to question 108 in the Record of Interview you specifically say that the purpose was to: "Scare the shit out of him and then maybe hopefully he'd piss off and he'd be able to get back with his girlfriend".

111. You had already provided the shotgun to Murphy and prior to attending the house on the Tuesday morning you provided a balaclava, gloves and handcuffs. Your description of the aggravated burglary is set out in your answer to question 140 in the record of interview: "I can see this guy's face. He opened the door and straight in and he was on top of him and the look on this guy's face was just fuckin' abject horror. So he got the guy in a headlock and I was standing at the foot of the bed and I had the shotgun in my hand. So he had the guy in a headlock and the guy went semi-faint and then he just rolled him over on top of him on the bed and put the handcuffs on him." After obtaining his PIN number you then assisted in the removal of the deceased in a handcuffed, gagged and blindfolded position in the boot of your car.

114. When you arrived at the location at the Lederderg Gorge the car belonging to the deceased was put into the bush and you reversed your vehicle and opened the boot so that Christopher Jewell could be taken out.

117. The following day you returned with Murphy to check on the condition of the deceased. When you found him he was dead. You said in answer to question 239 in the Record of Interview: "His face was just completely covered in tape. There was black masking tape, no breathing holes, no eye holes, no mouth holes, no nothing, and his face was just completely covered in masking tape." You also said in your Record of Interview that you had not seen Murphy complete the job the previous night and you were not aware that the taping had covered his nose, making it impossible for him to breathe.[4] You observed that the black electrical tape had in fact covered his entire face.[5]

120. In your Record of Interview you specifically disclaimed any intention to kill or do serious harm to the deceased Christopher Jewell: "As far as I'm concerned I'm the one who has kept Chris Jewell alive for the last three months. The only reason I partook in this, because I thought my presence being there was going to be his saving grace as well and that maybe Jason would have got it out of his system and left him alone. Okay? But for me calling him up and telling him to get out of the house, that was to get him out of there, to get him away from Jason. So I thought I was doin' the right thing and actually helping this guy by actually being there and being there with Jason and having some sort of: maybe some sort of semi-control over him, but obviously it's backfired but all I can say is I tried my best to keep this guy out of harm's way."

123. The case against you differed from the case against Jason Murphy in two relevant respects:

(1) There was evidence to support a history of you trying to prevent harm to Christopher Jewell at the hands of Jason Murphy. This was contained not only in the Record of Interview but the contemporaneous warning given to Malyssa MacKay some months earlier. Given his erratic behaviour including the possibility that he might harm himself you took steps to deactivate the gun in his possession. This was contained in contemporaneous conversations with Kinta Lim and Benjamin Whittaker concerning your attempts to achieve this result.

(2) In your Record of Interview you give a detailed account of how you believed Christopher Jewell met his death. Given these matters and your claim in the Record of Interview that you were trying to exercise some degree of preventative control over Murphy, the jury were left with a reasonable doubt as to the required intent for murder but found you guilty of manslaughter by an unlawful and dangerous act as indeed your Counsel invited them to do.

129. The fact remains you have been convicted of five counts involving serious criminality and significant features of aggravation.

(1) Although not motivated to the same obsessional extent as Murphy, your conduct demonstrated a disregard for the rights of both Malyssa MacKay and Christopher Jewell. Given Murphy's need for assistance however, your preparedness to help was a contributing factor in the criminal conduct occurring.

(2) As with Murphy, your actions were premeditated and planned, and it is significant that you were the supplier of the gun, the handcuffs and the balaclava.

(3) Your own account of the aggravated burglary indicated a terrifying attack on an innocent man.

(4) The kidnapping involving as it did handcuffing and blindfolding and incarceration in the boot of your car would have exacerbated the terror.

(5) The false imprisonment in circumstances where the deceased was handcuffed and blindfolded in the rear of his own car would have constituted a further aggravating feature.

(6) Your assistance in the concealment of the car and the later burning of it with the deceased made it impossible to ascertain the cause of death and added to the anxiety of family and friends.

(7) Whilst your conduct was not driven by the same obsession or motivation, you nevertheless engaged in a course of very serious criminal conduct which was deliberate and pre-meditated. The aggravated burglary and the kidnapping constituted very serious instances of criminality in their own right.

135. The maximum sentence for manslaughter was increased from 15 to 20 years in 1997 and the amendment reflects community concern that courts should impose higher penalties for offences against the person and the high value the community places upon life and personal safety. In my view the facts of this case disclose a very serious example of the crime of manslaughter and as I have said the crimes of aggravated burglary and kidnapping involve serious criminality.

138. However these are not the only matters to be taken into account in the exercise of sentencing discretion and I turn now to your personal background which must also be taken into account. You were born in Hamilton in New Zealand on 8 June 1968 and you are presently 33 years of age. Your parents separated when you were one and you have had no contact with your mother since that time. Your father re-married and you stayed until you were eight in New Zealand where your father worked as a farmer. The family moved to Adelaide and then Tamworth in New South Wales where you were brought up. You attended schools in Tamworth - Tamworth Primary and Tamworth High. Because of friction in the family you left as soon as you left school and you haven't had contact with the family since that time. You were admitted into the army when you were 20 and two references confirming your successful military career have been tendered in evidence. You attained the rank of Acting Troop Sergeant, you served overseas in Malaysia and in England. You were discharged in Darwin towards the end of 1988. You have worked for Skilled Communications in Darwin and you formed a relationship with the witness, Kinta Lim, which continued when you moved to Melbourne. That relationship has now broken down. You worked in the security industry after your move to Melbourne.

141. You come before the court with a good work record and no prior convictions. You offered to plead guilty to manslaughter at the time of the committal and in the course of the trial you have in fact not put in contest any of the counts for which you were ultimately convicted. I note your comment to a fellow worker that you were an honest man and had done something against your judgment. In your offer to plead guilty to the charges and some signs of remorse there is slightly more to be said for you than the co-accused by way of mitigation. On the other hand on any view of the facts you subjected an innocent person to significant terror over a prolonged period. It culminated in his unlawful killing. No civilised community can countenance this kind of behaviour and due weight has to be given to principles of general deterrence and proportionality and denunciation. I propose to make the sentences substantially concurrent but to allow some degree of cumulation for the same reasons set out earlier.[6]

144. I have arrived at the view that the appropriate sentences to be imposed upon you are: On Count 1, the count of aggravated burglary, you are sentenced to imprisonment for a term of six years. On Count 2, kidnapping, you are sentenced to a term of imprisonment of eight years. On Count 3, false imprisonment, you are sentenced to a term of imprisonment of six years. On Count 4, theft of a motorcar, you are sentenced to a term of imprisonment of one year and any licence to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for twelve months. On Count 5, manslaughter, you are sentenced to a term of imprisonment of eight years. I direct that one year of the sentence on Count 1 and one year of the sentence on Count 2 are to be served cumulatively upon the sentence imposed on Count 5. That creates an effective sentence of 10 years and I fix a non-parole period of eight years.

150. Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that Jason Mark Murphy and Clive Clayton Watson undergo a forensic procedure for taking of blood and/or saliva samples in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the data base. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified having regard to the seriousness of the circumstances of the offending warranting in the order, the fact that the order is not opposed and the fact that the granting of the order is in the public interest.

153. I am required to inform you both that, in undergoing a forensic procedure for the taking of a blood or saliva sample, a member of the police force may, if necessary, use reasonable force to enable the procedure to be conducted.

156. Pursuant to s.78 of the Confiscation Act 1997 I order that the property referred to in the schedule attached to the disposal order be forfeited to the State and direct that such property be placed in the custody of the Chief Commissioner of Police and be held by her until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed by her.

159. Pursuant to s.151 of the Firearms Act 1996 I order that the items referred to in the schedule attached to the firearms forfeiture order be forfeited to the Crown.

[1] The Queen v Mark John Smith 6th December 2000

[2] R v Beckett Vic.SC (unreported 20 August 1998) and The Queen v Mark John Smith supra.

[3] R v O'Rourke [1997] 1 VR 246

[4] See answers to questions 254 and 317 of the record of interview.

[5] See answer to record of interview question 378.

[6] Reasons set out in paragraph 23 in relation to Murphy.