R v Penglase [2011] VSC 356

3 Your relationship with your wife was a difficult one and, although you had been married for 14 years, there had been difficulties after you assaulted her in February 2005. At about that time, you attempted suicide. In addition to difficulties with your marriage, you had lost your licence and were worried about becoming unemployed.

4 Following the assault, your wife left you, taking your children, Tea, who was then six, and Tyler, who was then four, with her. About a year later, she returned for the sake of the children. Not long before these events, however, your wife had decided that she wanted to permanently separate from you. You did not want to accept her decision and contacted her often asserting your love for her.

5 On Saturday 5 June 2010, you, your wife and two children spent the day at the local sports ground. You arrived at 8.30am to watch your son, Tyler, play football. You began drinking at about 9.00am.

6 After returning home at about 6.30pm, you and your family went to the Barham Hotel for dinner. All of you left the hotel at about 10.00pm by taxi. When in the taxi, you and your wife, Joanne, argued about who should pay the fare. In any event, you left your wife to pay the fare, which she did.

7 After she came into the house, the children went to bed, but the argument continued. Your daughter, Tea, tried twice to stop you as she was trying to sleep. The second time, she was in tears. On that second occasion, she found you sitting on top of her mother, who was yelling "No, get off me". You went outside for a cigarette, but in a fit of anger, you threw a stubby at the toilet door, damaging it. Your wife consoled your daughter before leaving her with you and going to check on Tyler, who was also upset. Tea was then 11 years old and Tyler was 9 years old.

8 When your wife returned, the two of you went outside and your daughter returned to bed. The argument continued, and about ten or fifteen minutes later, Tea heard her mother call out "Help, Tea, Tyler. Graeme, don't. Stop it Graeme, please, no!". The children got out of bed and went to the back of the house, where they found their mother lying on the concrete floor of the sunroom. You were assaulting her. You were holding her and stomping on her head repeatedly. She was begging you to stop. Your actions were so forceful that Tea and Tyler could hear your boot[1] striking their mother in the head or her head striking the floor. Tyler described you as hitting and kicking his mother in the face.

9 The children called on you to stop, and Tyler tried to push you away. At that stage, his mother was barely conscious, but she blinked at the children.

10 You pushed the children away and went into the back of the house when you got hold of a ball-pein hammer from a table. You came back and used the hammer in both hands to repeatedly strike your wife about the head and face. The children ran into the lounge room and attempted to console one another. The blows which you had inflicted were fatal, although death may not have followed immediately.

11 The children rang their maternal grandparents. Tea told her grandmother "Dad's hurting mum and I think she is dead now. Come quick".

12 After washing your hands, you asked your son to call "000". He rang the number and handed you the phone, but you were unable to complete the call.

13 Your parents-in-law arrived and a few minutes afterwards you said to your mother-in-law, as she arrived, "Sorry, Judy".

14 They gave such assistance as they were able to the children. They were not able to assist their daughter.

15 You left and went to the house of Belinda Bridgman, who was a long-term friend of both you and your wife. She was not at home, but after being called by her daughter, she returned home. You were crying when she arrived, and said, "I think I've killed my beautiful wife", and kept apologising for coming to her place. You also said you did not know why you did it.

16 You rang your older brother in Sydney from the house. You told him what you had done and he encouraged you to turn yourself in to the police. You were arrested at 3.42am at Ms Bridgman's house. You had then been there from about midnight.

17 At about 11.00am the next morning, you declined to be interviewed.

18 When the house at Grigg Road was examined, there were significant signs of the sustained and brutal attack which you had made on your wife and the hammer you had used was recovered.

19 A forensic pathologist, Dr Melissa Baker, carried out a post-mortem on your wife. She attributed head and neck injuries as the cause of death.

"The post-mortem examination revealed severe blunt force injury to the face with a large defect in the orbital region associated with underlying facial and right base of skull fractures, depression and deflation of the globes (eyes) and traumatic brain injury including subarachnoid haemorrhage, lacerations and contusions.

The overall appearance of the injuries was consistent with being caused by multiple blows from the hammer present at the scene. The precise number of blows could not however be predicted.

The extent of injuries suggests that significant force was used. There were extensive facial bone fractures, cerebral contusions and lacerations and maxillary sinus epithelium and bone was embedded with brain tissue.

The mechanism of death is likely to have been a combination of primary brain injury and air embolism. The post mortem CT scan revealed a large amount of air within the chamber of the heart and neck veins with the likely portal of entry being basal veins around the right base of the skull which was fractured. Air embolism prevents the heart from pumping and results in rapid death.

Following neuropathological examination of the brain, it was determined that there was likely to have been a short period of survival following infliction of the injuries. This is based on the extent of injuries present and the lack of staining of an antibody which shows axonal injury. The current literature suggests that positive staining requires a period of survival of at least 30 minutes post injury.

Severe neck injuries were also present, which comprised of extensive bruising of the skin and strap muscles, extensive laryngeal fractures and rupture of the larynx. These injuries were due to blunt force trauma and possible mechanisms of infliction would include blows with the hammer present at the scene or stomping with a foot.

Patterned internal bruises were also present on the face, which were consistent with the sole of a shoe and likely to be caused by stomping."

20 In this case, I received as Exhibit 3, seven victim impact statements from Judith and Ian Meharry, the mother and father of Joanne Penglase, Sharon, Scott, Craig Anthony and Steven Meharry, Ms Penglase's brothers and sister, and Tanya Meharry, Ms Penglase's sister-in-law, and Steven Meharry's wife.

21 Mr Ian and Ms Tanya Meharry's statements were read to the Court.

22 The suffering of Ms Penglase's family is immense and ongoing. I am constantly reminded of how many people are dramatically and drastically affected by conduct such as this. I said something about it on the plea and I hope I have some understanding of the anguish from which the family suffer and the extent to which it is constant and ongoing. No sentence which I will impose will ever compensate for what has happened, but it will, within the constraints of the law, reflect the community's condemnation of conduct like this. I did not receive any material directly from Tea and Tyler, but the effect of this offence on them must necessarily be profound and will be with them forever.

23 On the plea, I received a psychiatric report from Dr Danny Sullivan dated 13 July 2011. It became Exhibit 4.

24 I do not regard there as being anything in that report which would lay foundation for mitigation of sentence from any psychiatric perspective. It seems that you are unable to advance any reason for your offending. Although you may have suffered from some degree of depression for some years, it is very difficult to separate that condition from your underlying difficulties and it does not appear to have contributed to your offending.

25 I set out Dr Sullivan's opinion and recommendations:

"Mr Penglase is a 47 year old man charged with the murder of his wife. His background was of limited application to education, but he had apparently sustained employment through most of his adult life.

Mr Penglase has longstanding polysubstance dependence involving alcohol and opiates and also past abuse of stimulants, inhalants, benzodiazepines and cannabis. He has never sought sustained help for this and describes having the thought that because he was able to work, he was managing and did not need assistance.

Mr Penglase describes a history of depression although does not appear to have sought formal treatment for this and rather relied upon self-medication or substance use. It cannot be determined whether mood disorder was a consequence of ongoing substance use or was a causative factor in his drug and alcohol use."[2]

26 You are a person who does know about the effect which alcohol has on you. I do not doubt that you would not have done what you did if sober. That matter is not a matter in mitigation and may well be a matter in aggravation. Because of the presence of more significant aggravating features of this case, it will not play a particularly important role in that regard. It does need to be understood that it is not a matter which in any sense excuses your conduct or mitigates it in any way.

27 You are now 47 years of age. You were born in Cohuna. You are the fourth of five boys. You have been greatly affected when the brother immediately older than you was killed in a motor car accident. You attribute that to be the cause of your overuse of alcohol and drugs but the evidence does not allow me to reach a conclusion about that one way or another.

28 You are in contact with one of your older brothers, but not with your other brothers. Your mother is deceased and your father has been to visit you in custody.

29 You attended the local primary school and the Kerang Technical School. You had little interest in school and truanted frequently. You left school after Year 10. You completed an apprenticeship as a fitter and turner, and up until late 1996 you worked in various occupations, including as a theatre and anaesthetic technician.

30 You then returned to the country and worked for a grain company, but by about 2005 you commenced work in the mining industry in various places in regional Australia.

31 You had two other relationships before you married in about 1996. Both you and your wife were both relatively heavy drinkers. You had been a drug user, of which your wife did not approve.

32 Your recreation was largely related to sport, including fishing and lawn bowls.

33 Your medical history is largely unremarkable, apart from the serious heroin overdose, which I have mentioned earlier. You are sero-positive to hepatitis C, but have not sought assistance or treatment.

34 You have admitted through your counsel your Criminal Record. You have a number of prior convictions between 1995 and 2005. In the period of 1995 to 1996, you were convicted of a series of dishonesty offences and, in relation to the last set of these, you were sentenced to a fully suspended term of imprisonment. It was put to me that the offending arose out of your drug use. It appears to have been before your marriage and is of little relevance except in one regard which I will refer to later.

35 In December 2005, you were convicted of exceeding 0.05 and you were given a three month suspended sentence and lost your licence for four years. You have other driving convictions which are not included in your criminal record but I received a certified record of those convictions at the plea hearing and your counsel agreed to me reading it.

36 The major event in your relationship with your wife and family had occurred earlier in 2005 when you assaulted Joanne, and I have set out the consequences of that earlier.

37 You have been a drinker from your early teenage years, but more particularly a heavy drinker in the last 13 or 14 years. Over the last ten years, you would often suffer withdrawal symptoms and carried two stubbies of beer to settle yourself. You had other symptoms of the extreme use of alcohol. When not working, you would drink up to two slabs of beer or mixed drinks a day. Your drug history tends to confirm your history of use of alcohol.

38 You commenced heroin use at 17 and appear to have used for most of your life since. You also used cannabis, amphetamine, ice, cocaine, LSD and magic mushrooms. You had used amphetamine and cannabis more than the others, and are still an occasional user.

39 You have, in the past and in recent years, used benzodiazepines and opiates intravenously.

40 While on remand, you have taken up the opportunities available to you and you are now a billet in the section in which you are detained doing cleaning and maintenance in the office area. You have completed courses in managing conflict and problem solving, and are on the waiting list for anger management and drug and alcohol use. It was put on your behalf that you are determined to use the years of your detention to improve yourself, and I accept that.

41 Remarkable as it might seem you continued to use heroin and amphetamines while working and by pure chance you were not tested for drugs notwithstanding the strict regime in the mining industry.

42 I was told on the plea that you had not used drugs for a month prior to these events.

43 I take into account that you have maintained full and apparently useful employment. I have already indicated that your prior convictions are of little relevance to your sentence but you are not someone who falls to be sentenced as a person of good character. Your ongoing disregard of the law relating to the use of illicit substances underlines that.

44 You pleaded guilty at a relatively early date. The prosecution accept that you should be given credit for the fact of the plea, including that it shows remorse. I do regard it as an early plea and it is in part a reflection of remorse. Although the case against you was very strong, many people in a position similar to yours have stood trial. You will see from a statement I will make that I have given you a very significant reduction in sentence because of your plea of guilty.

45 I received material on the plea that indicated that you have consolidated the proceeds of the sale of the family home, which had been your parents' home, to set up a trust fund for the children (Exhibit 6). You have also agreed that your sister-in-law, Sharon, will have custody of your children.

46 You have written letters of apology to your children and to your mother and father-in-law. The children will be given a chance to see the letter addressed to them. Your parents-in-law will not receive the other letter. The letters were Exhibit 5 on the plea.

47 I am satisfied that you are remorseful. Your plea of guilty and your remorse are the two most powerful features in your favour.

48 I said on the plea, and I repeat here, that I regard your wish to better yourself in prison as being to the good. In general, I regard your prospects of rehabilitation as good, but with some reservations about those prospects because the killing of your wife in the presence of and contrary to the beseeching of your children remains entirely unexplained. You have told Dr Sullivan that you do not have any clear recollection of those actions.

49 In those circumstances, it is appropriate to be somewhat guarded about your prospects since you have little or no insight into your offending.

50 Ms Leighfield, who appeared with Ms Boston for you on the plea, put all that was capable of being put on your behalf on the plea.

51 It was put by Ms Karamicov, Associate Crown Prosecutor who appeared for the prosecution, that I should regard this as a very serious example of the crime of murder.

52 The aggravating circumstances set out by the prosecutor included:

• The murder took place in Ms Penglase's home, where she was entitled to feel safe.

• Ms Penglase was an entirely innocent victim and you used your disproportionate size and strength to overcome her.

• Even after you had severely beaten your wife, you went into another room to get the hammer.

• That both aspects of your attack, first by hand and foot, and second with the hammer, were sustained, callous and extremely brutal. The suffering of your wife must have been significant.

• That you committed the offence in the presence of your children, who tried to stop you.

53 Although your crime occurred in a small community and effects of it are much more apparent than might otherwise be the case, I have not treated that as a matter in aggravation.

54 The single most important matter of aggravation, and indeed of the whole case, is the fact that you murdered the mother of your children whilst in their presence and when they were at a most impressionable age.

55 Their mother was their principal carer and your actions were sustained and brutal. Your blows were direct almost entirely to the head and face. That factor, or these factors, makes this one of the most serious examples of the crime of murder. I have not been able to find any examples of cases where the children of the marriage of this age have been actually present while their mother was murdered. There are cases of children present in the house but they did not witness the murder.[3]

56 The most similar cases although by no means identical is R v Nguyen[4] and R v Hettiarachchi.[5]

57 I am obliged to have regard to both specific and general deterrence. General deterrence is an important part of your sentence.

58 I must also have regard to just punishment and denunciation of your conduct.

59 I have fixed a non-parole period which will allow for you to spend four years on parole if the parole board decide to release you at your earliest date. I am satisfied that four years is an appropriate period for you to be on parole both in your interest and in the interest of the community. In fixing the non-parole period I have had regard to the proportion that the non-parole has to serve many of the purposes such as punishment and general and specific deterrence in the way that a head sentence does.[6]

60 I sentence you to be imprisoned for 22 years and I fix a non-parole of 18 years before you will be eligible for parole.

61 I declare that you have served 418 days pursuant to this sentence and I direct that this declaration and its details be entered in the records of the Court.

62 Pursuant to s 6AAA of the Sentencing Act 1991, I am required to state the sentence I would have imposed upon you had it not been for your plea of guilty. I state that I would have sentenced you to be imprisoned for 25 years with a non-parole period of 21 years.

[1] As described by Tyler Penglase in his VARE interview. In Booklets 5 & 6 of Exhibit 2, the "boot" appears to be a Rivers casual shoe.

[3] See R v Baxter [2009] VSC 180; R v Karageorges [2006] VSCA 49.

[4] [2010] VSCA 31.

[5] [2009] VSCA 270.

[6] R v VZ [1998] VSCA 32; (1998) 7 VR 693 at [15].