R v Robinson [2010] VSC 10

3 The maximum penalty for murder is life imprisonment.

4 The circumstances of this offence were as follows.[1]

5 At around 9.00 am on 28 April 2008 you drove your car to Ms Greenbury's residence in a suburban street in Frankston. You and Ms Greenbury had been in a relationship for about three months. The relationship between the two of you had deteriorated markedly following an incident which occurred approximately ten days prior to 28 April 2009. That incident had resulted in Ms Greenbury becoming seriously frightened of you. It had involved a shortened single barrel shotgun which you owned, which you maintain you routinely carried with you for your own protection, and which was, on 28 April 2008, the murder weapon.

6 On the morning of 28 April 2008 you and Ms Greenbury conversed for a short period outside her house. You were in your car and she was talking to you from outside your car. An argument developed. You gave evidence during your trial regarding the substance of this argument. You said that it concerned a request that she had made of you to threaten her ex-partner. For present purposes it does not matter what the argument was about.

7 The shortened shotgun was in your car. During the course of the argument something happened which caused Ms Greenbury to run away from your car and away from you. You got out of the car and chased her. You took the shortened shotgun with you. Ms Greenbury ran to the residence of Ms Leoni Coates, a neighbour whose house was a short way down the street. You chased her. You and Ms Greenbury reached the doorstep of Ms Coates' front door. The weapon was in your hand, cocked and loaded. The uncontested expert evidence at your trial was that, even when cocked, the shotgun would not fire unless the trigger was pulled.

8 Upon reaching Ms Coates' front door, Ms Greenbury knocked and called out for help. Ms Greenbury was obviously terrified of you at this stage. Ms Coates opened the door and Ms Greenbury entered her hallway.

9 At the trial there was conflict between your evidence and Ms Coates' evidence as to how Ms Greenbury entered the house. You said she fell and that, as she fell, you put your hands out to help her. Ms Coates said that she opened the door and found Ms Greenbury sitting on the doorstep with both of her hands covering her head. Ms Coates said Ms Greenbury began crawling inside her house. She said that Ms Greenbury "basically pulled herself into the house with her arms".

10 Ms Coates also said that from the moment you entered her vision you had the shotgun pointed at Ms Greenbury's head. She said you were holding it at arm's length and that from that position the shotgun was discharged.

11 I accept Ms Coates' evidence. I find that Ms Greenbury was seated on Ms Coates' doorstep with her hands over her head when Ms Coates opened the door. Ms Greenbury, endeavouring to get away from you, crawled into Ms Coates' hallway. You were holding the shortened shotgun, cocked and loaded, at arm's length and pointing it at Ms Greenbury's head. The shotgun was then discharged.

12 The shotgun discharged because you pulled the trigger. In your record of interview you said you "saw red and pulled the trigger". The gunshot went into the back of Ms Greenbury's head and killed her. The only reasonable inference open on the facts is that you intended to kill her.

13 You maintained in your evidence that the shotgun discharged accidentally. The jury rejected that suggestion and so do I.

14 After shooting Ms Greenbury, you fled the scene. You were at large until you surrendered to police in the early hours of 30 April 2008. While at large you obtained a change of clothing, swapped cars, dyed your hair to disguise your appearance, and obtained a mobile phone with a SIM card in a false name.

15 This is your second conviction for murder. In 1968 you were convicted of murdering Valerie Dunn, another woman with whom you had been in a relationship. The prosecution was unable to obtain the judge's sentencing remarks, but they did obtain a judgment of the Court of Criminal Appeal dated 21 February 1969 in relation to that matter in which reference is made to the relevant circumstances. They also obtained and tendered on the plea reports prepared in relation to that murder by Dr A A Bartholomew, who was at that time the psychiatrist superintendent at Pentridge Prison. Dr Bartholomew's first report is dated 8 November 1968 and was prepared whilst you were on remand awaiting trial for Ms Dunn's murder. The second report is dated 21 March 1969 and was prepared after your conviction. The judgment of the Court of Criminal Appeal reveals that you stabbed Ms Dunn sixteen times and that she bled to death as a result of those stab wounds. Dr Bartholomew's first report sets out a history of your relationship with Ms Dunn as you related it to him, and records that you told him that Ms Dunn had annoyed you intensely on the morning of her death, that you had wanted to kill her and had known what you were doing, and that you had stabbed her twice in the back as she was running away from you.

16 You were sentenced to death for Ms Dunn's murder, as was then mandatory, but that sentence was commuted to a sentence of 30 years' imprisonment with a non-parole period of 20 years.

18 In 1994 you were convicted in the County Court of one count of rape and ten counts of indecent assault on a person. You were sentenced to a total effective term of imprisonment of five and a half years with a minimum non-parole period of four years. I have no detail of the circumstances of these offences, save for a reference in a document tendered by the prosecution on the plea from Pacific Shore Healthcare at Her Majesty's Prison Won Wron entitled "Health Services Recommendation". This document was apparently prepared on the eve of your release from prison in August 1999. It states that you were to be released "after serving 5½ years for indecent assault of Defactos daughter". I was told that despite the efforts made the prosecution was unable to obtain the County Court judge's sentencing remarks.

19 You also have prior convictions for dishonesty offences in 1967, 1968, 1991 and 2001, and you have a conviction for unlawful assault for which you received a fine in 2003.

20 On the plea, your counsel tendered a report from the forensic psychologist, Ms Elizabeth Warren. The prosecution required Ms Warren's attendance at court and senior counsel for the prosecution cross-examined her.

21 According to what you told Ms Warren, your childhood was very unhappy. You lived with your mother in impoverished conditions. At around the age of fourteen years you left your mother's care and you did not live with her again. You do not appear to have had a relationship of any significance with your father.

22 In Ms Warren's opinion, your personality traits are characteristic of both anti-social and borderline personality disorders. She is also of the opinion that your inability to resist aggressive impulses is symptomatic of a mental health disorder known as intermittent explosive disorder.

23 Ms Warren ties her diagnosis to traumatic events in your childhood. You told Ms Warren of being physically and sexually abused by your maternal uncle. Ms Warren says that you have never previously disclosed this abuse. You also told her of having a difficult relationship with your mother. Ms Warren describes that relationship as pathological.

24 Ms Warren says that you lack insight into your offending. Consequently, she assesses your prospects of rehabilitation as poor. In her opinion, rehabilitation would require profound change to your personality. She believes such change would be difficult to achieve without long-term psychotherapy.

25 Back in November 1968 Dr Bartholomew expressed the opinion that you were not psychotic and were best considered a "psychopathic personality". He said there was no doubt that you were a highly disturbed personality. He commented on the fact that you had little if any remorse. In his second report, which Dr Bartholomew says he wrote after attending your trial and reading the transcript, his conclusion was as follows: "The overall diagnosis would be an aggressive psychopath who easily becomes upset when things don't go his way". He expressed the opinion that you might "mature" over the years.

26 The prosecution also tendered a psychological assessment by Mr Tim Watson-Munro which had been prepared in June 1991 whilst you were awaiting trial on charges of burglary and receiving stolen goods. I could not find much of assistance in that report and neither counsel sought to rely on its contents.

27 Your counsel did refer me to a medical report prepared by a medical officer at the Metropolitan Remand Centre dated 14 October 2009. That report outlines your medical conditions and your current treatment and medication. Whilst you appeared to be in good health during your trial, that report does reveal that you have had, and continue to have, a number of health problems. You suffer from emphysema, which is said not to have been a significant problem in custody. You have a history of heart disease. You suffered a stroke in 2004. You are being treated for hypertension and for raised cholesterol. You suffer from non-insulin dependent diabetes. You have a history of back problems. You have had a spinal laminectomy. You have continuing back problems, which required your admission to hospital from 31 May to 1 June 2009. The report indicates that control of your diabetes, blood pressure and cholesterol have all been satisfactory.

28 At the time of her death Tracey Greenbury was 33 years of age. She was the mother of two children, Harley aged 13 and Jamie-Lee aged 8. At the time of her death she was estranged from the children's father, Jeremy Newton. Ms Greenbury had two brothers, Jeffrey and Max, and a sister, Leonie. She had a close relationship with her father, Maxwell, and her mother, Pamela.

29 Counsel for the prosecution tendered victim impact statements from Ms Greenbury's daughter, Jamie-Lee; from the father of her children, Jeremy Newton; from her parents, Maxwell and Pamela Greenbury; and from one of the neighbours who witnessed some of the relevant events, Carol Brown.

30 Jamie-Lee Newton writes: "I think about Mum and cry myself to sleep, just about every night". Her father, Mr Newton, says he wrote the remainder of Jamie-Lee's statement on her behalf because she was too upset to continue. Mr Newton states that Ms Greenbury's son, Harley, has also suffered following his mother's death but did not wish to write a statement.

31 In his own statement, Mr Newton says he will never recover from the emotions he has gone through and is still going through.

32 Maxwell and Pamela Greenbury have both been diagnosed with post-traumatic stress disorder following their daughter's death. They have each undergone counselling. Psychological assessments were annexed to their victim impact statements. Mr Greenbury writes: "our lives have been in turmoil since her death, our family has not been the same since". He goes on: "I cry most days and sit in silence most days, thinking of her mostly". Pamela Greenbury writes in her statement of having difficulty at work due to lost concentration and anxiety attacks. She writes that she has "nightmares of Tracey's terror that dreadful morning".

33 Carol Brown was a witness at your trial. Ms Brown writes that after the shooting she has had intrusive nightmares and is scared to open the front door.

34 At the outset of the plea hearing senior counsel for the prosecution indicated that the Crown's position was that this was a case where a life sentence without parole should be imposed.

35 Your counsel submitted that I could not be satisfied to the requisite standard that you had visited Ms Greenbury that morning intending to kill her. He submitted that this absence of premeditation, and the absence of aggravating features such as false imprisonment, torture, or an attack of long duration, meant that this murder could not be considered to be among the most serious cases. Accordingly, he submitted that the nature of the offence itself did not warrant a conclusion that it was inappropriate to fix a non-parole period. He submitted that the only relevant matter I should consider in that regard is your past history.[2]

36 Your counsel submitted that your age, 62, was a relevant sentencing consideration. He submitted that it warrants a lesser sentence than would otherwise be the case because of the increased likelihood of the sentence destroying any reasonable expectation of useful life after release.

37 Counsel for the prosecution accepted that age is a relevant sentencing consideration. They submitted, however, that your criminal history and the seriousness of this offence meant that in your case age could not be considered a significant mitigating circumstance.

38 Counsel for the prosecution submitted that the murder of Ms Greenbury bears close similarity to your previous murder. They submitted that this similarity makes this offence one of the most serious kind. Counsel for the prosecution submitted that this was accordingly one of those rare cases that call for life without parole.

39 I am satisfied that you were initially remorseful for Ms Greenbury's death. Indications of remorse are present in your record of interview which was conducted shortly after your arrest. In that interview you were candid. As I indicated earlier, amongst other things, you told police that you "saw red and pulled the trigger". Since then, however, you have denied responsibility for what you did, claiming it was an accident. It was not an accident. A desire to save yourself has supplanted your initial remorse.[3]

40 I accept your counsel's submission that I cannot be satisfied on the evidence that you attended outside Ms Greenbury's house on the fatal day intending to kill her. I accept his submission that I cannot find that the murder was, in that sense, premeditated.

41 During your trial, senior counsel for the prosecution described the killing of Tracey Greenbury as a "cold blooded execution". I do not consider that it would be appropriate to describe what occurred as "cold blooded", but in my view it can properly be described as an execution. Ms Greenbury was literally running for her life, endeavouring to get away from you. You caught her and deliberately shot her in the back of the head at close range.

42 The prosecution submitted that in the light of your previous murder conviction you are a serious violent offender within the meaning of the Sentencing Act 1991. I accept that. This means that in determining the length of your sentence I must regard protection of the community from you as the principal purpose for which the sentence is imposed.[4]

43 You have been in custody since the murder. I declare that the period of 639 days is to be reckoned as already served.

44 A sentence of life imprisonment has been described as a dreadful sentence.[5] It is the maximum penalty for murder and should be imposed, only after the most anxious consideration, where the case is appropriate to attract the maximum penalty.

45 This is such a case. Your terrified victim posed no threat of any kind to you. Motivated by annoyance at some aspect of your relationship with her, you chased her down a suburban street in broad daylight, with members of the public in close proximity, carrying a loaded and cocked shortened shotgun. When you caught her you callously shot her in the back of the head as she was attempting to crawl away from you, before the eyes of her petrified neighbour.

46 You have now taken the lives of two women who were in a relationship with you, and have deeply damaged the lives of all of those who were close to them. There is a pressing need to permanently protect the community from you. For a murder such as this, denunciation of your conduct, punishment and vindication of the rights of the victim and those close to her, and general deterrence are also very important.[6]

47 I have taken your personal history and circumstances, and the matters put on your behalf by your counsel into account, but I consider that the only appropriate sentence which can be imposed upon you is life imprisonment.

48 The question of fixing a non-parole period then arises.[7] In this case the relevant matters appear to me to be the following:**

(a) After murdering a woman with whom you had been in a relationship when you were young, and after serving a long period of imprisonment for that murder, you have now done essentially the same thing again. Two women who have been in a relationship with you have paid for annoying you in the context of that relationship with their lives.

(b) Your prospects of rehabilitation are poor. You will always be a serious threat.

(c) This offence was in itself, in isolation from your past history, a very bad instance of this kind of murder.

(d) You have convictions for other serious offences, being a rape and ten counts of indecent assault.

(e) You showed some initial remorse for this murder, but have since been unremorseful.

(f) Your personal history and circumstances are sad, but what is more important is the need to protect the community from you and the need to denounce in the most emphatic terms possible the conduct which you have now perpetrated twice.

**49 I observe that your age and state of health are such that any non-parole period that could be countenanced would give you very little prospect of release in any event.

50 In these circumstances I do consider that the fixing of a non-parole period is inappropriate. You are sentenced to life imprisonment without parole.**

[1] I am bound to sentence the offender on a factual basis which is consistent with the jury's verdict. Otherwise, in relation to matters adverse to the offender, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in the offender's favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].

[2] Pursuant to s 11 of the Sentencing Act 1991 the Court must fix a non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

[3] Counsel for Mr Robinson expressly disavowed any reliance on remorse.

[4] Pursuant to s 6D(a) of the Sentencing Act 1991, in determining the length of imprisonment the Court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. In order to achieve that purpose, pursuant to s 6D(b) the Court has a discretion to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. That discretion may be exercised where the Court is satisfied that the offender will remain a danger to the community beyond the period that the principle of proportionality would permit the detention to last: R v Connell [1996] VicRp 30; (1996) 1 VR 436, 443. Given Mr Robinson's age and the state of his health, my conclusion is that any sentence within the proportionate range would mean that Mr Robinson would be most unlikely to be released into the community again, or would only be so released in an exceedingly infirm condition. Resort should not be made to s 6D(b) where it is not necessary to do so: R v Natoli [2001] VSCA 243 at [15]. My conclusion as to the proportionate range here, and my particular conclusion as to the appropriate proportionate sentence in this case, means that resort to s 6D(b) is unnecessary.

[5] R v DJH [1998] VSCA 108 at [13], per Brooking JA with whom Charles JA agreed, and R v Quarry [2005] VSCA 65 at [25] per Warren CJ. On the issue of "categorisation" of murders, I refer to the analysis of Batt JA in R v Quarry at [32]-[33].

[6] See R v Dupas [2004] VSC 281 at [3].

[7] A number of authorities were referred to or handed up during the course of the plea. Those to which I have had particular regard are R v Coulston [1997] 2 VR 446, 462-464; R v Lowe [1997] 2 VR 465, 486-490; Re Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106, 139; R v Debs [2008] VSCA 240 at [84]. I was also referred to, and I have had regard to, published sentencing statistics for murder.