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[2007] VSC 35
Supreme Court of Victoria
2007-02-28
WHELAN J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Manslaughter - Provocation - Son killed mother with hammer - Background relationship - Remorse - Prospects of rehabilitation - Little weight given to specific deterrence - General deterrence important - Sentenced to 9 years imprisonment, non-parole period of 6 years.
1 Simon Alan Randall, by a presentment filed 4 July 2006, you were charged that at Cheltenham on 27 September 2005 you murdered your mother, Susan Elizabeth Randall. Your trial commenced on Tuesday 30 January 2007 and the jury was empanelled on Wednesday 31 January 2007. When arraigned, you pleaded not guilty to murder but indicated that you pleaded guilty to manslaughter. In the response made by your senior counsel to the prosecutor's opening she said that the basis for that course was that the defence would contend the Crown could not discharge its burden of proving the killing was unprovoked.
2 The Crown did not accept your plea of guilty to manslaughter. On Tuesday 13 February 2007 the jury found you not guilty of murder and guilty of manslaughter.
3 The evidence in your trial was that on 27 September 2005 the police attended an address in Jack Road, Cheltenham in response to a 000 phone call by you in which you said that you had just killed your mother with a hammer.
4 In an interview with you conducted by members of the Homicide Squad later that day you described what had happened that morning. You and your mother lived together in Jack Road, Cheltenham. That morning you had woken at 7.30 am and you and your mother had continued what you described as a "sort of argument" which you had been having with your mother over prior days. In response to complaints made by your mother, you revealed that you had quit university. She then said that she could not believe you were so pathetic as to give up your future or something similar, in response to which you said that you might not have a future. She made complaints about you concerning your employment, your lack of self esteem, your weight, and other matters, and then continued mumbling under her breath. You walked from the kitchen, where the interchange to which I have referred occurred, went into an adjacent porch area, picked up a hammer, went back into the kitchen, and hit your mother with a double handed blow to the right side of her head. She fell to the floor on her back. She was still breathing. You turned her over, knelt on one knee, and dealt a number of blows to the back of her head with the hammer and with your fists. When you had run out of energy and she was no longer breathing you ceased your attack and made the 000 call.
5 Your mother was dead. The evidence of the forensic pathologist called in the trial, Dr David Ranson, was that your mother suffered a number of injuries to her head, that two of the injuries to the right side of her head may have been sufficient on their own to cause death, but that in his opinion it was highly probable that all of the injuries which he described played a part.
6 You gave evidence in your trial. Evidence was also called on your behalf from your mother's only sibling, your uncle, Alan Surrey Bogg; from Reverend Nicholls and Suellen Petrie from St Augustine's Anglican Church, where you worked part time as the music director at the time of your mother's death; from two of your friends, Renee Vincent and Saeed Mirza; from work colleagues of your mother's at the library at Emmaus College where your mother was the librarian, Deborah Shand, Christine Lyons and Margaret Rhodes; from close friends of your mother's, Peter Nelson and Joan Rayner; from persons who had dealt with you at St Augustine's and at two choirs with which you were associated, Stuart Allan and Marilyn Saunders; from an oncologist, Dr Cooray; and from a psychologist, Mr Jeffrey Cummins.
7 The case presented to the jury, on the basis of that evidence, was that your mother was a forceful and at times abrasive person; that she utterly dominated your life; that you adopted a submissive, subservient, and at times manipulative and deceitful mode of behaviour in response; that your relationship with your mother was abnormal and claustrophobic in its closeness; and that your role in the relationship was childlike notwithstanding your age. The case put was that the psychological consequences of all this for you were, as diagnosed by Mr Cummins, a depressive disorder which Mr Cummins described as a dysthymic disorder, and an adjustment disorder. The specific diagnosis of the adjustment disorder was what Mr Cummins called mixed disturbance of emotions. The adjustment disorder was described as a condition where there is a severe imbalance between a person's feelings, thoughts and behaviour.
8 In addition to the matters referred to concerning your relationship with your mother, the case put to the jury on your behalf was that the physical conditions in which you and your mother were living at the date of her death were very poor. You and your mother's house was closed up, dim, cluttered, and dirty. Visitors, with the exception of Mr Mirza, were strictly prohibited.
9 The case put in your defence was that your mother had imposed upon you throughout your life a rigid, demeaning and over bearing regime of behaviour.
10 The evidence led also revealed you had suffered from serious cancer in 2004, which remained unresolved during 2005, and you also suffered from serious back pain as a result of compression fractures in your back, together with complications of chemotherapy you had undertaken in 2004.
11 The submission put to the jury on your behalf was that in the context of all of these matters the prosecution had not discharged its burden to prove you had not been provoked by your mother's words and conduct to attack her as you did, that your attack had not occurred in circumstances where you had lost self control, and that the gravity of the provocation which you experienced that morning was not such as might have caused an ordinary 26 year old to lose control to the point of forming an intention to kill or cause really serious injury.
12 I am bound to sentence you on the basis of conclusions on the facts which are consistent with the jury's verdict. The jury must have concluded that the Crown had failed to establish beyond reasonable doubt that the conduct you described had not occurred, or that you had not in fact been provoked and attacked having lost self control, or that an ordinary person might not have been similarly provoked.
13 In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]
14 On the basis of the evidence called in your trial I am satisfied that the factual basis of the case put to the jury on your behalf, as I have outlined it, concerning the events that morning, your relationship with your mother, your psychological conditions, your living conditions and lifestyle, and your cancer and other health problems is established on the balance of probabilities.
15 You were born in 1979. You are an only child. Your father, with whom you say you had a good relationship, was considerably older than your mother. He died in February 1997, two days before your 18th birthday. Your father was then in his mid 70s. Your mother was 62 years of age when she died. At the time of your father's death she was in her mid 50s.
16 You attended school at St Leonard's College in East Brighton. Your father died just after you had completed Year 12. In that same year, 1997, you commenced to study music at the Conservatorium at the University of Melbourne. You dropped out of that course approximately half way through the year, but instead of telling your mother of this, until March 1998 you maintained the pretence of continuing at the Conservatorium, even to the extent of producing a fake record of examination results.
17 In 1998, after the intervention of one of your mother's friends, Mrs Rayner, you commenced an information technology course. This was a course already being undertaken by your close friend, Saeed Mirza. You did not succeed in that course either and you did not continue it after 1998.
18 In 1999 you worked in a letter sorting facility and in a bakery.
19 In 2000 you started a combined Bachelor of Arts/Bachelor of Music course at the Australian Catholic University. You progressed better in that course than you had in your previous tertiary courses. You made a small group of new friends, of whom Renee Vincent was one. You ceased the Bachelor of Arts course after the first year and continued your music degree course.
20 In the middle of 2004 your studies were interrupted when you were diagnosed with testicular cancer. The cancer was advanced and serious. An operation to remove a cancerous testicle was performed on 8 July 2004. You then had four cycles of chemotherapy which concluded at the end of September 2004. You had what Dr Cooray described as a prolonged and complicated operation to remove an abdominal mass on 17 December 2004. You were in the intensive care unit after that operation. You were discharged from hospital very early in 2005. Throughout your treatment your mother constantly stayed with you and looked after you.
21 At your mother's insistence you attempted to resume your music course at ACU in 2005. You found this very difficult. Generally in 2005 the medical tests concerning your cancer were reassuring. You experienced severe back pain which was eventually revealed to be a result of compression fractures rather than cancer. There was also a concern that there might be cancer in your brain. An MRI scan conducted on 9 September 2005 to investigate that possibility did not indicate the presence of any cancer. You never got the results of that MRI because you ceased attending the clinic where you were obtaining cancer treatment in July 2005.
22 By mid 2005 you had again dropped out of university. You again kept this secret from your mother. Those dealing with you at St Augustine's Church noticed that you were withdrawn and depressed. You were becoming dishevelled in your appearance. You gave evidence, and I accept, that you were in constant pain from your back and that, notwithstanding the test results, you were concerned that your cancer had returned. As indicated, you ceased attending for treatment in July 2005 prompting the clinic to write to you in August explaining what a serious risk you were taking with your own health by that course.
23 At the time you killed your mother the two of you were living together, in the house in which you two had lived with your father. Since your father's death the condition of that house had deteriorated and at the time of your mother's death it was in very poor condition. Every room in the house was very cluttered. The house was dirty and was infested with mice. Your father's possessions, including things such as his old tattslotto tickets and his dentures, remained where they had apparently been since the day he died.
24 After your father's death your mother had adopted, and imposed upon you, a strict rule whereby all visits to the house were prohibited, with the occasional exception of your friend Saeed Mirza. Even your uncle Surrey Bogg and his family were never invited to the house after your father's death. None of your mother's friends were ever allowed in the house.
25 Your uncle and members of his family went through the house after your mother's death. They took a series of photographs that were tendered in the trial. Your uncle described the condition of the house as an unbelievable mess. The photos depict the conditions in which the two of you were living, closed off and hidden from your relatives, friends and acquaintances.
26 No doubt your mother wanted the best for you and believed that what she did was in your best interests. Nevertheless the witnesses called on behalf of the defence, including your mother's own brother, her close friends, and her work colleagues, revealed the existence of a lifestyle imposed on you by her which was far beyond the bounds of any merely concerned and protective parent. Amongst other things:
(a) You were required to ring your mother five, six or seven times a day to "check in" on where you were. This regime continued right up until your mother's death when you were a 26 year old man. You would agree with her each morning on the times you would ring. You would leave messages for your mother at her work saying you were going to the shop, or going to the gym, or taking a walk around the block.
(b) Your mother allowed you little or no choice in relation to many aspects of your personal life including the food you ate, the clothes you wore, and your haircut.
(c) Your mother was obstructive in relation to steps you might countenance which would lead to greater independence, and in particular in relation to obtaining a driver's licence. Attempts by your uncle and by friends of your mother's to encourage her to allow you greater independence were rebuffed.
(d) Your mother supervised your spending, requiring you to show her printouts from the ATM machine, and, even when you were an adult, would confiscate items which you had bought with your own money of which she did not approve, including in one instance a Play Station 2 console.
(e) Even as an adult in your twenties your mother imposed and supervised a strict regime of daily piano practice, and a 9.30 pm bed time on university days.
27 Mr Cummins in his evidence described how a psychological phenomenon he called "learned helplessness" meant you perceived yourself to be inescapably locked in to your abnormal relationship with your mother and the living regime she imposed on you.
28 I am mindful of the fact that your mother's death means that we can never hear her side of the story.
29 As you had in your first year at the Conservatorium, you disguised the fact that you had dropped out of university in 2005. You again went to considerable lengths to maintain this pretence, including again producing fake records of exam results and on one occasion dressing up as if going to a performance exam. In your evidence you said that over the years you had learnt it was preferable to lie and face her eventual reaction to that, than to reveal to her your failures to meet her expectations at the time they occurred.
30 The evidence given as to your mother's dominance over you and your subservience to her was powerful and, as I have indicated, came from persons who one might have expected to sympathise with your mother's position rather than your own.
31 The evidence did establish that in some respects you were defiant of your mother's will. The evidence also established that in some respects you did have a life of your own. You had attended university; you had obtained part time jobs as a musical director, first at the Catholic Church, Stella Maris, and then at the Anglican Church, St Augustine's; and you were involved in the Glen Eira City Choir and in the Ashton Smith Singers. You had a small circle of friends at ACU and a close longstanding friend in Saeed Mirza.
32 Your evidence was that by 27 September 2005 your poor health, your relationship with your mother, and your deception over dropping out, had produced a situation where you felt it was like there was a massive 100 tonne weight on your shoulders and that everything was folding inwards on you. I accept that.
33 On Wednesday 14 February 2007 I heard a plea on your behalf. Your counsel put the following matters in mitigation:
(a) You had indicated that you would plead guilty to manslaughter from the first time that you were arraigned.
(b) You are a person of prior good character. You have no prior convictions of any kind.
(c) Prior to this incident the evidence revealed you to be a non violent, submissive, pleasant and courteous person. You were highly regarded by the Anglican community at St Augustine's and by your fellow choristers. Senior counsel tendered as Exhibit A on the plea a bundle of letters of support. I refer to them below.
(d) Your conduct at all times from the commission of the offence revealed you to be a person in extreme distress and feeling overwhelming remorse.
(e) At no time in dealing with the police did you attempt to protect yourself or attempt to reduce your culpability.
(f) You did not require a committal hearing thereby avoiding the expenditure of time and resources.
(g) You have spent 16 months on remand which in your case has been complicated by moves back and forth between different facilities. There is a suggestion in the material you have at times been "stood over" by other prisoners.
(h) Prison will be particularly difficult for you given your ill health. Whilst your cancer is apparently in remission that situation remains unresolved. You still suffer from acute back pain and have sleeping difficulties. Your cancer is a constant concern to you and you do not have the same capacity to access information or follow matters up in the way a person might do if not imprisoned.
(i) You have demonstrated true contrition and genuine remorse.
(j) In a sense you are a victim of your own crime. It is unlikely you will ever fully come to terms with what you have done. You have expressed continuing love for your mother.
(k) There are good prospects for rehabilitation. You have skills and talent you can draw upon. You are an intelligent person. You have the support of your family, members of the Anglican community in which you worked, and both your own friends and your mother's friends. You are receiving psychological treatment voluntarily in prison, paid for by your uncle. You fully appreciate the gravity of your crime.
(l) The only victim impact statement filed in the matter, by the deceased's brother, Mr Bogg, recognises the complex, intense and claustrophobic nature of the relationship between you and your mother and the fact that your cancer added additional pressure on your situation.
(m) Your crime was committed against a background of flawed emotional development, an adjustment disorder and a dysfunctional domestic situation. All of these circumstances justify the extension of mercy.
(n) Your diagnosed psychological conditions are likely to result in greater hardship in your prison sentence. You remain a fragile person. You are not well equipped to cope with imprisonment.
34 All of these matters are properly to be taken into account and I do so.
35 Senior counsel on your behalf submitted that whilst provocation manslaughter is often considered more serious than unlawful and dangerous act manslaughter, a disturbed upbringing or circumstances of physical or emotional abuse may be highly relevant to the weight to be given to the circumstance that the manslaughter is by reason of provocation. She also referred to a number of prior sentences and in particular suggested that R v Changan[2] was what she called a good "comparator". She submitted that in the circumstances a longer than usual gap between the head sentence and the non parole period would be appropriate.
36 On the plea further evidence was called from Patricia Byrne who is a lay minister at St Augustine's. She has been visiting you whilst you have been in prison and intends to continue doing so. She confirmed that you continue to have the support of the community at St Augustine's.
37 Amongst the tendered letters of support are cards signed by members of St Matthew's Anglican Church where you and your mother attended from when you were a child, St Augustine's Anglican Church where you were the music director, the Ashton Smith Singers with which you sang as a tenor, and the St Augustine's congregation. There are also letters from a number of individuals. This material supports the oral evidence given that you were a highly regarded person at the church where you attended when growing up, at the church where you worked at the time of your crime, and with the people who came into contact with you through your activities in the choirs. The evidence and the letters tendered portray you as a responsible and caring person, and as a talented and committed musician and musical director.
38 The position adopted by the prosecution on your plea was as follows.
39 The prosecutor advised that the maximum penalty was 20 years' imprisonment and referred me to the fact that that maximum had been increased in September 1997. The prosecutor gave me a draft of the only victim impact statement, being a statement of Mr Bogg, which was not then in proper form but which has since been filed in proper form.
40 The prosecutor submitted that manslaughter by provocation was the most serious form of manslaughter.
41 The prosecutor indicated that the Crown fully accepted that you had shown genuine contrition and remorse.
42 In relation to sentence the prosecutor submitted that the range of potential sentences was very wide but that I should take into account the fact that in this case there was intention to kill or do really serious injury. It was also submitted that the provocation which occurred on the day and which precipitated the attack was, in isolation, slight, and that even taking the full range of conduct into account it was submitted that it was conduct at the outer range of conduct that might produce a reasonable doubt for the purpose of the jury's finding. The prosecutor submitted that general deterrence remained important and that this was a crime of considerable violence. He accepted that there was little role in this case for specific deterrence. He did not accept that Changan was a good comparator.
43 Both the prosecutor and your counsel handed up to me bundles of material which contained sentencing statistics, tables of prior sentences in possibly similar cases and a number of judgments and sentences. I have reviewed the material provided. Such material can assist by providing guidance as to general trends in sentencing.[3]
44 In terms of specific deterrence, I am satisfied that the death of your mother occurred in circumstances where there was no premeditation on your behalf but rather a sudden loss of self control. From the first, you have accepted responsibility for what you did. You have from the earliest practical opportunity indicated your willingness to plead guilty to manslaughter. The substance of the account you gave as to the way your mother dominated your life has been confirmed, and in many instances amplified, by your mother's brother, her friends, and her work colleagues. It is consistent with the history you gave to Mr Cummins and on the basis of which he made his diagnosis.
45 For the above reasons I am satisfied that the issue of specific deterrence is of little if any significance in relation to the task I have of sentencing you. I do not consider, on the material before me, that you are a danger to the public, nor does it seem to me that there is a likelihood that you will re-offend after your eventual release from prison.
46 Nevertheless despite the significant factors in mitigation which your counsel has put, and which I accept, the crime of manslaughter is a serious crime.
47 You have attacked your mother without warning in her home. She was defenceless. She offered no violence or threat of violence to you. Your attack involved very substantial force and the use of a hammer as a weapon. You intended to kill or do really serious injury.
48 General deterrence is an important factor here in my view and there is no other alternative than that you be sentenced to a significant term of imprisonment.
49 I sentence you to nine years' imprisonment and direct that you not be eligible for parole before you have served a term of six years' imprisonment. Pursuant to s 18(4) of the Sentencing Act I declare that you have served 519 days in pre-trial detention and I direct that the same be noted in the records of the Court.
[1] R v Storey [1998] 1 VR 359 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1.
[3] R v Bangard [2005] VSCA 313; (2005) 13 VR 146.
R
Randall [2007] VSC 35
(1999) 199 CLR 270
(2001) 209 CLR 1
(2005) 13 VR 146