R v Sharp [2003] VSC 44

5. In the month of May 2001 you were residing at Flat 3, 133 Epsom Road, Ascot Vale in emergency housing run by the St Vincent de Paul organisation. Among the visitors who would come to your flat from time to time were an Adam Murphy, a fellow resident who lived upstairs in Flat 9, and persons you became friendly with at Ozanam House, such as John Wilkinson, Robert Coulson, and the deceased. These people would visit to buy marijuana from you and to have a drink.

8. On Friday 4 May about four or 5 p.m. John Wilkinson brought some stolen motor vehicle parts to your flat. These included shock absorbers. You negotiated to purchase these parts. Mr Wilkinson said that present in your flat at this time were Adam Murphy and the deceased, Steve Wilkes. He observed you and the others drinking UDL cans and smoking bongs, and he described you as being drunk and stoned.

11. At some point in the afternoon Mr Murphy left your flat and, according to his evidence - which I regard the jury as having largely accepted - you knocked on his door at about 11 p.m. the same evening. The witness described you as agitated. You asked him to come downstairs to your flat, telling him that something had happened. Although he gave no evidence of your state of sobriety at this time, the likelihood is that you were still affected by alcohol and/or marijuana to some extent.

14. On entering the flat he saw the deceased lying on the lounge-room floor, "spasming" and grasping at the leg of a chair. Blood was coming from his mouth. You told Mr Murphy to sit down and shut up. You refused his suggestion that you ring an ambulance and told him, "This is what happens in the criminal world. I'm going to teach you all about it." At some stage you picked up one of the shock absorbers and said, "I gave him a good one with this."

17. After further exchanges, during which you threatened Mr Murphy if he told anyone what had occurred, you instructed him to get rid of the shock absorber. You wrapped it in an item of clothing taken from the clothes line in the yard of the premises. In obedience to your direction Mr Murphy drove for a couple of blocks with the shock absorber, before throwing it onto a nature-strip in Dunlop Avenue, Ascot Vale. It was subsequently retrieved by investigating police and a DNA analysis of biological material found on it revealed a profile consistent with that of the deceased.

20. As Mr Murphy was leaving the flat to embark on his mission, you produced a mash hammer, (being a miniature sledge hammer used to tap in bricks), and announced that you were going to finish off Mr Wilkes with it. Mr Murphy was very concerned at what he had witnessed, and did not return to his flat until the next morning. Subsequently, at about 11.30 p.m. that evening, you again knocked on his door. On this occasion you were accompanied by Robert Coulson. You said you wished to stay in Mr Murphy's flat until three or 4 a.m. as your own flat stank.

23. Earlier in the day, according to the evidence of Mr Coulson, he had gone to your Ascot Vale flat and you had requested him to help you dispose of a body. Mr Coulson describes seeing the outline of a body wrapped in plastic in a wardrobe of your bedroom. He detailed your activities in obtaining a shovel from your grandmother's house, and disposing of the mini sledge hammer in the nearby Maribyrnong River.

26. After you and Mr Coulson left Mr Murphy's flat, which was about 3 a.m., you were observed by him in the car-park of the premises, pushing the wrapped body of Mr Wilkes into the boot of your Statesman motor car. You then drove to the vicinity of Mangalore, where a shallow grave was dug adjacent to a dirt track. The deceased's body, wrapped in a number of coverings held together by insulation tape and green rope, was deposited in it. One of the implements used to dig the grave was a star picket, later identified as having been taken from a nearby farm. You and Mr Coulson returned to Melbourne where efforts were made to clean up the copious quantities of blood in your flat.

29. Some eight days later, on 13 May, Robert Coulson contacted the police informing them of these events. He took them to the grave site and Mr Wilkes' body was exhumed. A post-mortem examination by Dr Michael Burke revealed a number of injuries, including ten lacerated injuries to the head, beneath which were numerous fractures of the skull. According to Dr Burke, the shattering of the skull would have required a severe degree of force, and was consistent with blows inflicted by an item such as the shock absorber. The cause of death was skull fracture with accompanying subarachnoid haemorrhage.

32. There was considerable forensic evidence which tended to link you to the killing. Found at the grave site were the tyre tracks from your vehicle, footprints left by your shoes, and cigarette butts which provided your DNA profile. Additionally, there was the deceased's blood found at your flat in areas consistent with the observations of Mr Murphy, as well as the deceased's blood on the shock absorber, to which I have already referred. Further, your jeans had the blood of Mr Wilkes spattered on them below the level of your knees, consistent with you having struck the deceased as he lay prone on the lounge-room floor.

35. When arrested and spoken to by investigating police, you chose, as was your legal right, to make a "no comment" record of interview, and although you gave no evidence at your trial, it was conducted on the basis that Robert Coulson, not you, was the killer of Steven Wilkes, and you had merely assisted in the disposal of the unwelcome body which you had found in your flat. The jury rejected this assertion.

38. The evidence before the jury indicated that this was a brutal murder. Indeed, your counsel, Mr Desmond, properly conceded this was so. Your assertion that Robert Coulson was the killer, which you still maintain, has several practical consequences. Firstly, there is no evidence before the court as to the events leading up to the killing, or of any motive for it. Secondly, your failure to acknowledge your responsibility for the killing deprives you of the benefit of any genuine remorse for the murder. Expressions of regret for Mr Wilkes' death, to which you apparently subscribe, carry no weight in the context of your claim that you had no role in that death.

41. It was put by your counsel that there is no evidence that the killing was premeditated. This is certainly so in relation to the initial attack. As I have indicated, it is highly likely that you were affected to some degree by the ingestion of cannabis and alcohol, given the evidence of Mr Wilkinson as to your state in the late afternoon of 4 May.

44. Since the evidence is one of a friendly relationship between you and Mr Wilkes prior to this event, something must have triggered your resort to violence. What it was will never be known to this court, and possibly even to yourself. Whilst the initial attack may have been the product of spontaneous aggression, the evidence of Mr Murphy as to your conduct after bringing him to your flat on the evening of 4 May, is indicative of a measure of callousness, together with a clear intention on your part at that stage to kill your victim.

47. I should add that there is no evidence that you were affected by amphetamines, which you used on occasions, or that you were psychotic at the time of this incident.

50. Having committed the murder, you then set about concealing your crime, enlisting the aid of Robert Coulson, who, you must have been aware from your contact with him, was a person prone to mental instability.

53. I agree with your counsel that this is not in the class of murder constituted by a contract killing. It has more of the characteristics of mindless alcohol induced aggression. That being said, the facts do you not reveal any significant mitigating features.

56. There are a number of matters personal to you which are relevant to the sentence to be imposed. However, before referring to them, I wish to say something about the deceased. Stephen Wilkes was aged 37 at the time of his untimely death. In a Victim Impact Statement his mother, Mrs Elizabeth Wilkes, describes her son as a very gentle person, with whom she spent special time. Prior to his death Stephen was talking of returning to her home in Adelaide. Instead, Mrs Wilkes was met with the information about his death, and has experienced ongoing grief, horror, and a huge sense of loss. Fortunately, she is sustained by a strong religious faith.

59. Peter Sharp, you are presently aged 32 and are the youngest of three brothers. You were raised in the St Albans area of Melbourne, attending Stevensville Primary School and then St Albans Technical School. You had difficulty reading and writing, and being unable to cope with school, you left when you were aged about 14. You told Dr Justin Barry-Walsh, a forensic psychiatrist who submitted a report on your behalf, that you were picked on at school as a result of your scholastic problems, and that you were often fighting. You also recalled that you had an anger problem. You also told Dr Barry-Walsh that your father, who was a butcher, was a violent alcoholic of whom you were perpetually frightened.

62. Mr Peter Miller, a longstanding friend who gave evidence on your behalf, told the Court that your father was always putting you down. Your parents separated when you were aged about 14. After leaving school, you obtained employment as a bricklayer. You never completed any formal apprenticeship, being unable to handle the written theory aspect of the trade. You worked as a bricklayer for about ten years. According to Mr Miller, you were skilled in your trade. You even managed to save enough money to buy some land in the country.

65. When you were aged 20 you married a lady named Michelle. Subsequently, you became suspicious that she was being unfaithful to you, and the relationship deteriorated into verbal and physical violence on your part. Although your wife stood by you for a number of years, she eventually left you, and since 1999 has had nothing to do with you. There is a daughter from your union, who is currently five years of age. You do not have any contact with her.

68. As your marriage deteriorated, your drinking increased, as did your use of marijuana, and at times, amphetamines. You ceased working and went on the dole. You drifted around Australia for about 12 months before ending up in the Ascot Vale temporary accommodation via such institutions as Ozanam House.

71. According to what you told Dr Barry-Walsh, you have a long history of alcohol abuse, which in the past has cost you jobs. Often your drinking led to alcoholic blackouts. Structured attempts to combat your drinking habits, such as attending Alcoholics Anonymous, have proved unsuccessful.

74. Your drinking and drug taking have been associated with many prior convictions, commencing in November 1988. These include driving offences, and the possession, use, and cultivation of cannabis. More disturbingly, however, from 1994 onwards there are a number of convictions for offences of violence. There was assault with a weapon, (October 1994), followed by rape, (two convictions), indecent assault and causing injury intentionally or recklessly, (February 1996), which offences were committed upon your then wife. Causing injury intentionally or recklessly, (June 1996), assault by kicking, (March 1998), which, according to your instructions, involved a dispute with a person who sought to enter a taxi you believed you had hailed. Finally, in September 2000, amongst a large number of offences of which you profess no memory, there are convictions for assault police and assault by kicking.

"There is a long history of maladjustment, with difficulties at school, problems with learning and conflict with his peers, leading into substantial substance abuse problems, and a frequently violent and conflicted relationship with his wife. He had major difficulties with employment because of his alcohol abuse. He has failed several attempts in the community to address his drinking and drug problems. He describes alcoholic blackouts, feelings of cravings for alcohol when he woke, and shakes and tremors when first waking that improved when he consumed alcohol. His substance abuse problems greatly worsened following the departure of his wife, when he lapsed into a sometimes itinerant, sometimes homeless and shiftless lifestyle. His own description would suggest that his substance abuse was to compensate for chronic feelings of low self esteem and unhappiness."

Currently, you are significantly depressed and in receipt of Doxepin, an anti-depressant medication, and Olanzapine, an anti-psychotic.

82. Any sentence imposed, apart from reflecting the seriousness of this crime and the requirement of general deterrence, must, in light of your criminal record, also give weight to the principle of specific deterrence. Moreover, the theme of drunken violence in your convictions since 1994 suggests that the need to protect the community must also be addressed.

85. Unfortunately, your history instils little confidence in your capacity to rehabilitate yourself. Perhaps your successful completion of courses in Drug and Alcohol Abuse, English, Maths, and Computer Science while you have been in custody, provides a glimmer of hope.

88. Balancing as best I can the principles in the Sentencing Act, I conclude that the appropriate sentence is that you be imprisoned for a period of 20 years. I fix a period of 15 years before you become eligible for parole. I declare that a period of 638 days, inclusive of today's date, be reckoned as the period of detention already served under the sentence. I direct that there be noted in the records of the court the fact that such declaration is made and its details.