R v Nuttal [2005] VSC 14

"... He's kicked in the door, the front door of the house. There were no lights on at the time and a short - short time later, came outside with Gordon and placed him in the back seat of the car and then he's gone back into the house and retrieved Allen and dragged him out the front of the house and placed him in the boot of the car and then he's requested that I drive him to the river, which I've done at Raftery Road and after we arrived at the river, Jason has dragged Gordon from the back seat of the car and started laying into him on the ground beside the river. At which time I was still seated in the driver's seat of the car and I - I got out of the car and walked around the vehicle to see him laying into Gordon. And Jason has requested that I give him a hand to put Gordon into the water, which I have done and Jason has pushed him underneath the surface of the water and held him there for some time until he was satisfied that he was dead. And then he's opened up the boot of the vehicle. He requested that I give him a hand to lift Allen out of the boot. So, I took hold of Allen's legs and helped Jason to pull him out of the boot and placed him on the ground behind the vehicle. At which time he was still alive and still moving and Jason has continued to drag Allen into the river and push him beneath the surface until he has stopped moving. After which we both got back into the car and drove away."

4 In subsequent answers contained in your record of interview you indicate that you reversed the car into the driveway of the house and helped put Thomas in the boot, and, that you assisted in manhandling Thomas because of a fear of Guthrie.

5 You then drove to a sandbar at a secluded location on the Goulburn River a short distance outside Shepparton. Again you say that you did so in accordance with specific directions. In the course of the drive there was a discussion concerning what was to be done to MacKay and Thomas. Guthrie stated that he "wanted to teach these cunts a lesson." On arrival at the river bank Guthrie dragged MacKay from the car and bashed him with half of a steering wheel lock taken from the car.

6 You maintain that after some initial bashing of MacKay by Guthrie you first asked Guthrie to stop and then tried unsuccessfully to pull him back from Mackay.

7 After the vicious beating was completed Guthrie dragged MacKay into the river and held him under for a period you estimate at three to four minutes. You re-enacted the manner in which the drowning was effected on videotape for police.

8 Guthrie then returned to the river bank and opened the car boot. The light came on in the boot and Thomas raised his head to look around. Guthrie struggled to lift Thomas out of the boot and asked for your help yelling obscenities and again you say that you assisted to manhandle Thomas because you were afraid Guthrie might harm you. Thomas struggled but Guthrie dragged him into the river and held him under the water for a period which you estimate at four to five minutes.

9 On returning to the river bank you drove Guthrie back to your mother's home. There you discussed "What have we done?", "What for?" to which questions you told police Guthrie responded by apologising for getting you involved. Guthrie later suggested disposing of the clothing you were wearing at the time of the killings and you drove to a location on the Broken River, selected by you as being in a different direction from the scene of the murders. At this location you burnt the clothing worn by you at the time of the murders and drank with Guthrie for a further period of perhaps two hours.

10 You were arrested several days later and then gave a lengthy series of interviews to police, identified relevant locations for them and re-enacted what occurred both on the bank of the Goulburn and the Broken Rivers. In so doing, you had no difficulty in directing police to the place at which the killings occurred.

11 Neither of your victims had done anything which might be said to have provoked the episode of extended and horrific brutality to which they were subjected. Both were older and physically weaker than you and Guthrie. It appears both were sleeping innocently in their beds before they were taken by you on a nightmare journey to their deaths. Your conduct not only failed to respect the fundamental sanctity of human life but also failed to reflect any apparent sensitivity towards the suffering of those you killed. The victim impact statements filed in Court confirm that you have inflicted significant consequential emotional pain and suffering upon the families of each of your victims. They have been left with the permanent loss of loved ones in the most brutal of circumstances.

12 I must sentence you on a view of the facts consistent with the jury's verdict. Further, I must be satisfied beyond reasonable doubt of matters adverse to you but may take into account matters in your favour of which I am satisfied on the balance of probabilities.

13 In summary in the present case I am satisfied beyond reasonable doubt that you actively assisted in placing MacKay and Thomas in the car and that you drove to the river bank pursuant to an understanding with Guthrie that you would do so. Thereafter, as you stated in your first summary account to the police, you observed Guthrie bash MacKay and then directly assisted Guthrie to manhandle, drag and place MacKay in the water. At this point in time MacKay had suffered a fractured skull, fractured arm, fractured ribs, fractured pelvis, and fractured leg. He had also suffered multiple abrasions and lacerations. Whether he was unconscious or not I am satisfied that at this point in time the injuries he had suffered were so manifestly serious that it must have been apparent to you that he would be drowned if he were immersed in the water and that you directly assisted Guthrie to drag him into the water for the purposes of immersion.

14 Further, I am satisfied that you did not seek to remove Thomas from the scene although you had the keys to the car, because you also understood and agreed that Thomas would be removed from the boot and killed.

15 Further, you assisted Guthrie in removing Thomas from the boot by directly lifting and manhandling him again knowing that Thomas would be killed.

16 Lastly, you did not seek to restrain Guthrie from drowning Thomas because you understood and agreed that he would be killed. Indeed, I observe that no other outcome could be anticipated by someone who had witnessed the bashing and drowning of MacKay by Guthrie in the ferociously savage manner which you describe in your record of interview.

17 Conversely, I am not satisfied on the balance of probabilities that you were coerced into acting as you did. It may be said that Guthrie was older, more drunk than you and held a personal grudge against one of your victims, whereas no basis for pre-existing animosity towards either victim has been established in the evidence against you. Further it is probable that it was Guthrie who initiated the actual violence towards your victims at the house and more significantly at the river bank. Nevertheless, it seems clear that Guthrie was your friend, and that you were more intelligent than he was, less drunk, and in control of the car. I am not persuaded that you were other than a willing participant in the joint killing of your victims.

18 This is in part because the manner in which the description you give of events is embroidered in your record of interview after your initial account to police is in my view unconvincing. It involves internal inconsistencies and is inconsistent with parts of the circumstantial evidence. In my view the probability is that you have:

a) understated your role in removing your victims from the house (particularly having regard to the evidence of La Porta);

b) understated your role in navigating the car driven by you at night to Sand Bar No. 2 (particularly having regard to the evidence as to Guthrie's drunkenness and the police description of the manner in which you took them directly back to the relevant location);

c) deliberately failed to acknowledge that you dragged Mackay into the water other than in your initial account; and

d) lied as to the disposal of the club lock (having regard to the police evidence of the search for the 2 components of it in the relevant stretch of the river).

19 Furthermore the manner in which you took Guthrie back to your mother's home and then went out with him to a place of your choice to dispose of circumstantial evidence while drinking together does not sit easily with the proposition that you had been coerced by genuine fear to act as you did. It rather supports the view that Guthrie was throughout the episode regarded by you as a friend and that you supported him in his actions as such.

20 I am also not persuaded that you sought to restrain Guthrie in the course of his extended beating of Mackay, although it is possible that you did so having regard to the extreme brutality of what occurred. When the evidence is viewed as a whole however your assertions in this regard seem to me to fit squarely in the category of attempts to minimise your role, which were not included in your initial account to police. In my view they are not to be trusted.

21 In summary I am not persuaded that your attempts to reduce your own culpability and cast blame upon Guthrie by attributing your actions to fear of Guthrie and asserting that you sought to restrain him, are to be accepted.

22 Conversely I am satisfied beyond reasonable doubt that you participated directly in key actions that led to the deaths of both Mackay and Thomas, and that you did so understanding at least from the time that Thomas was put in the boot that it was intended to cause them injury and at least from the time Guthrie bashed Mackay that it was intended to kill both men.

23 It follows that there are a series of objective circumstances seriously aggravating your offences.

a) They were senseless. There was no apparent reason for you to engage with Guthrie in the killings.

b) The killing of each man was the culmination of a series of deliberate and protracted acts.

c) From the time your victims were taken and placed in the car it can be inferred that they must have suffered extreme terror.

d) The killings in which you participated were brutal in the extreme. By your own account the victims were ultimately drowned like animals. It was you who helped put each of them in the river.

24. Conversely there is little in the circumstances of the killings that can be said to mitigate in your favour. The best that can be said is that on the evidence admissible against you:

a) It cannot be concluded beyond reasonable doubt that you engaged in violence during the initial removal of the victims from their home or that you engaged in violence in putting them into the car;

b) It was Guthrie who commenced the physical attack upon Mackay and Thomas at the river bank;

c) There is no evidence that you participated directly in the brutal bashing of Mackay;

d) Or that you participated directly in holding either man under water.

25. I turn then to your personal circumstances and background. I have heard evidence from your mother and received a report from Mr Joblin. You are aged 27 having been born on 2 March 1977. Your parents separated when you were five years old. You were raised by your mother. And at the time of the offences you were living with your mother. You still have her support together with the support of your sisters. You left school during year 10 and since that time you have had a number of unskilled jobs. At the time of the offences you were working at Kyabram making steel cans.

26. It appears that you have had recurrent problems handling alcohol suggestive of binge drinking. When you were 20 you were convicted of tampering with a motor vehicle and burglary as a result of entering premises when affected by alcohol. When aged 21 you were convicted of driving under the influence of alcohol and further convicted of stealing from a hotel cash register once again when affected by alcohol.

27. It was put on your behalf that on the night of the murders you had again been drinking. Nevertheless it must be said such drinking did not preclude you from coordinated driving over river side tracks beside the Goulburn River or a subsequent trip to the Broken River or materially affect your memory at the time of the re-enactments which you subsequently undertook for police. I am satisfied that although you had been drinking you had not been drinking to excess prior to the killings and well knew what you were doing.

28. You have never formed a stable relationship with a member of the opposite sex. But you are the father of a daughter born in 1998. Both you and your mother have maintained a continuing relationship with your daughter.

29. In Mr Joblin's assessment (supported by the evidence of your mother) you have been something of a loner. Accordingly the friendship you formed with Guthrie in 2001 was of some real significance to you. You shared interests, namely fishing, drinking and smoking.

30. Although you have denied to Mr Joblin that you became involved in the murders, as a result of your friendship for Guthrie it is difficult to escape the conclusion that this is likely.

31. Mr Joblin states that you are not psychotic. You do not suffer from any diagnosable psychiatric illness. You are a simple man who has had a difficult upbringing and lacks close friends. Unfortunately your friendship for Guthrie seems to have drawn you into actions of horrific violence. Mr Joblin says in his report that you sincerely regret the deaths of Mackay and Thomas. Your mother has also given evidence to this effect and your cooperation with police may be said to demonstrate remorse. Nevertheless as I have already stated I do not accept that your statements to the police were full and frank or that you have fully acknowledged your responsibility for the killings.

32. Turning to the question of relevant sentencing principles, by reason of the provisions of the Sentencing Act 1991 ("the Sentencing Act"), I am required to treat you as a serious violent offender for the purposes of the sentence I must impose for the second murder of which you have been found guilty. As such I must regard the protection of the community as the principal purpose for which the sentence is imposed. It must be said, however, that the senseless and protracted brutality of the two murders in which you joined was such that a conclusion to this effect would be compelling in any event and that the Sentencing Act thus emphasises a factor which would necessarily be at the heart of the sentencing process.

33. The Court must also manifest the denunciation by the community of the brutal savagery of your conduct and in so doing both punish you to an extent and in a manner which is just in all the circumstances, and signals the seriousness of your offences as a deterrent both to you and to others.[1]

34. The circumstances which may be said to count in your favour as potentially mitigating penalty are:

a) your relative youth;

b) the fact that Guthrie initiated the violence which caused the deaths of Mackay and Thomas;

c) there is no admissible evidence against you that you directly caused the death of either man;

d) the probability that alcohol had some disinhibiting effect on you; and

e) the possibility that a stable environment may enable you to mature.

35. As against the above matters the principal aggravating factors associated with the offences are those objective circumstances of the killings to which I have already referred and in particular their senselessness, savagery and brutality. As I have said I am satisfied beyond reasonable doubt that you participated directly in taking Mackay and Thomas to the river bank and in man-handling each of them in turn immediately prior to their drownings, understanding and intending that they would be killed.

36. In this horrific context it must be said that the matters which I have identified as mitigating circumstances are necessarily of limited and qualified weight. Nevertheless they are sufficient in my view to warrant firstly, the imposition of fixed terms of imprisonment rather than the life sentences for which the Crown has called and secondly, for providing a meaningful opportunity for parole. I have reached this conclusion in part because I accept on the basis of the report tendered to me that you have some prospects of long term rehabilitation.

37. Having said this unless you develop self control, self respect and respect for others there is little prospect that you will do other than serve your full sentence. It will be up to you to prove that you can mature or the opportunity for parole will be illusory.

38. In forming a view as to the cumulative effect of the sentences I propose to impose, I must have regard to the principle of totality. Whilst the second murder demands an additional penalty, because it involved an offence of such gravity that total concurrence would fail to do justice[2], nevertheless there is an exponential element in the burden of such a sentence insofar as it falls to be served cumulatively and at an age where you will be in the mid-term of your life.

39. Mr Nuttal you have participated in the senseless and horrific destruction of two human lives with such callous brutality that I must impose a penalty upon you which provides for the protection of the community and underlines the commitment of the community and the court through which it speaks to defend the sanctity of human life.

40. Mr Nuttal, having regard to the above matters and to the provisions of s.5 and s.6D of the Sentencing Act I sentence you to:

25 years' imprisonment for the murder of MacKay; and

25 years' imprisonment for the murder of Thomas.

41. I direct pursuant to s.6E of the Sentencing Act that 5 years of the second sentence be served cumulatively upon the first sentence, resulting in a total effective sentence of 30 years. I fix a non-parole period of 24 years.

42. I direct that it be recorded pursuant to s.6F of the Sentencing Act that you were sentenced with respect to the murder of Thomas as a serious offender. I declare pursuant to s.18(4) of the Sentencing Act you have already served 725 days in custody.

43. For completeness I record that it is implicit in the above that I have formed the view that it is not necessary to impose a sentence longer than that which is proportionate to the gravity of your offences in order to achieve the purpose of s.6D of the Sentencing Act.

[1] The provisions of s.6D of the Sentencing Act do not render proportionality and other considerations irrelevant. (R v Connell [1996] VicRp 30; [1996] 1 VR 436)

[2] R v O'Rourke [1997] 1 VR 246 at 253