R v Vandergulik [2009] VSC 3

Supreme Court of Victoria|2009-02-13|Before: KELLAM J

SENTENCING - Manslaughter by criminal negligence - Criminal negligence consisting of burning the deceased whilst alive without forming any reasonable belief as to whether he was dead or alive - Serious case of manslaughter by criminal negligence - Sentence nine years' imprisonment with a non-parole period of six years' imprisonment.

1 You Margaret Vandergulik have been found guilty of one count of manslaughter. The maximum penalty for the crime of manslaughter is 20 years' imprisonment. The circumstances under which you were so found guilty require some explanation.

2 On 15 June 2006 you were charged with the murder of Patrick Plumbe. On 2 October 2008 you were presented for trial before a jury at Wangaratta on one count of murder. On the third day of that trial after evidence had been taken, and in the absence of the jury, your counsel informed me that you were prepared to admit that you were guilty of the crime of manslaughter. The prosecutor informed the court that a plea of guilty to manslaughter would be accepted by the prosecution and that no further evidence would be led on the charge of murder. You were re-arraigned before the jury when you again pleaded not guilty to the count of murder, but stated that you were guilty of the crime of manslaughter. The prosecutor then announced in the presence of the jury, that no evidence would be led on the count of murder. Accordingly I directed the jury to enter a verdict of not guilty on the count of murder. The jury was invited to bring in a verdict of guilty on the alternative charge of manslaughter on the basis of your admission. Subsequently the jury found you guilty of that crime.

3 In the circumstances I consider that it is appropriate to treat your admission of guilt before the jury as a plea of guilty and to take that matter into account in your favour as required by law. However the weight that I should give to your admission of guilt is another matter, to which I shall return later.

4 Upon the hearing of your plea the prosecutor read out a statement which contains the facts upon which your admission of guilt to the crime of manslaughter is based. Those facts reveal the following circumstances.

5 Patrick Plumbe met his death on 28 April 2005. He was born on 30 August 1944 and accordingly was aged 60 years at the date of his death. He had no children. His first wife Lydia died in 1986. He married for a second time in 1995 but that marriage ended in divorce in 2004.

6 You met Patrick Plumbe some time in 2003. At that time you were working as a nurse at the Albury Hospital. You were introduced to Patrick Plumbe by a work colleague. Approximately a year later you and he entered into a relationship. Then, at a later time, you and he moved into a house in Orchard Drive in Glenrowan.

7 On Saturday 26 April 2005 you and Patrick Plumbe were married in Wangaratta.

8 On the morning of Monday 28 April 2005 Mr Plumbe attended to undertake volunteer work at the St Vincent de Paul store in Wangaratta. He left that work at about 4.45pm. Shortly before 9.00 pm that evening his car was found on fire, apparently having crashed into a tree on a remote track known as Adams Road. Patrick Plumbe's badly burnt body was found in the driver's seat.

9 At approximately 10.00 pm that evening you attended at the Wangaratta Police Station where you reported your husband to be missing. That report was false, as you well knew that your husband had been placed in his car which had been set alight subsequently and in circumstances which were designed to suggest that he had been involved in a motor car accident. You told police that you had tried to telephone your husband at about 7.00 pm that evening but that you were unable to contact him. That statement was, likewise, false.

10 On 25 April 2005 you made a written statement to police. The content of that statement was substantially false. Further oral and written statements made by you on 13 May and 23 May 2005 and on 4, 5 and 13 June 2006 were also substantially false.

11 A post mortem examination conducted on 3 May 2005 revealed that Patrick Plumbe had been alive at the time that he was burnt. The conclusion of the forensic examiner was that the death of Patrick Plumbe was in consequence of the "effects of fire following a motor vehicle incident".

12 The full circumstances under which Patrick Plumbe met his death are not known. However, approximately one week after the funeral of Patrick Plumbe, you received a visit from one Tony Calandro, a person with whom you had previously had a relationship. You told him that on the day of the death of your husband you had received a telephone call from an estate agent in Port Macquarie who told you that your husband had put a deposit of $2500 on a property and that he was intending to sell the Glenrowan property. You told Calandro that Patrick Plumbe had not informed you of this.

13 You also told Tony Calandro that Patrick Plumbe had come home that day and had gone into the shed to drink. You told Tony Calandro that Patrick had come into the house later and that you and he had had an argument. You claimed that in the course of that argument Patrick had hit you with a chair and that you had pushed him away in response. You told Calandro that Patrick had fallen and hit his head on the corner of a raised hearth near the wood stove. You said that he was dead and that your son Michael had come home shortly thereafter. You told Calandro that you and your son wrapped Patrick Plumbe in a blanket and put him in the front of his utility vehicle. You told him that the car was driven out to a "crash site" after that, and that it was "lit up".

14 Originally the inquest into the death of Patrick Plumbe was fixed for 5 May 2006. Shortly before the inquest took place Tony Calandro reported to police that nearly a year previously you had made the above statement to him.

15 The inquest was adjourned as the Homicide Squad then became involved. Subsequently and on 6 June 2006 the body of Patrick Plumbe was exhumed at the Wangaratta Cemetery and arrangements were made for a further post mortem examination to take place.

16 On 12 May 2006, Tony Calandro went to the police and made a formal written statement as to what you had said to him shortly after the funeral.

17 On 4 June 2006 you had a discussion with Tony Calandro whereby he told you that he had spoken to police. You became hysterical. At the conclusion of the discussion you said to him. "What are you going to do? Shoot me or blow my head off." You then attended at the Shepparton police station and made a written statement alleging that Tony Calandro had made death threats against you.

18 On 6 June 2006, the day of the exhumation of the body of Patrick Plumbe, you received a gunshot wound to your left upper arm. Upon investigation police found a .22 calibre rifle containing a spent cartridge in your home. Gunshot residue established that the rifle was discharged in close proximity to you. There is no doubt that the injury sustained by you was self inflicted. The only explanation for this is that you shot yourself in the arm so as to lend some credence to your false allegation that Tony Calandro had made death threats to you, and in an endeavour to discredit him in the eyes of police.

19 On 7 June 2006 the body of Patrick Plumbe was exhumed and a further post mortem examination was conducted. On this occasion a prominent skull defect was observed. On the right parietal region a punched out defect was found indicating the application of blunt force to the head. On this further examination the pathologist concluded the cause of death to be by reason of the effects of fire and by reason of blunt head trauma.

20 You have now admitted that you struck Patrick Plumbe with the handle of a walking stick after he had thrown a chair at you. There is no evidence that you intended to kill the deceased or that you intended to cause him really serious injury. There is no evidence to rebut your assertion that the deceased was struck with a walking stick after he had assaulted you. Your admission of guilt of the crime of manslaughter is related to the events which followed. It is based upon your stated belief that Patrick Plumbe was dead as a result of the blow to his head. Thereafter, whilst he was still breathing, but not necessarily conscious, you organised the placement of his body into his utility vehicle which was then taken to Adams Road, an accident staged and the vehicle set alight. The prosecution is unable to say conclusively who it was that assisted you in this regard. There is no doubt that Patrick Plumbe was still alive at that time and had you obtained medical treatment for him, rather than disposing of him as you did, there is at least a possibility that he would still be alive. Your criminal negligence in being involved in the placing of his body in the utility and being a party to the plan to stage a motor car accident, without ensuring that he was dead or alive is of a high order. That is all the more so in circumstances whereby you are a qualified nurse and had the training and expertise to assess his condition readily.

21 However it is argued on your behalf that your crime, being an involuntary manslaughter, falls into a lesser category of manslaughter offences for sentencing purposes. It is submitted on your behalf that your actions reveal panic rather than malice. It is submitted that what occurred took place in a short timeframe. The evidence is that Mr Plumbe arrived home at approximately 5.00 pm. There is no evidence that he consumed alcohol during the course of the day whilst he was engaged in his volunteering work. However he was found to have had a blood alcohol concentration of .18 percent at the time of his death. You told Tony Calandro that your husband had been drinking in his shed before he came inside and the physical altercation between you and him took place. His motor vehicle was found to be on fire shortly before 9.00 pm. Thus it is argued that the timeframe in which your decision to dispose of his body was a short one and reflects panic.

22 True it is, as submitted by your counsel, that manslaughter by criminal negligence does not involve premeditation or any intention to cause injury and thus does not carry the same culpability in the eyes of the law as those crimes of manslaughter which are premeditated and/or which have as an element an intention to cause serious injury.

23 Your counsel submits further that crimes of criminal negligence can be seen as being of lesser significance on the sentencing hierarchy than offences of involuntary manslaughter by unlawful and dangerous act. Whilst that might be so in some circumstances, it is not a fixed rule. It is not at all difficult to imagine circumstances whereby an unlawful and dangerous act which is not of great heinousness and is momentary nevertheless causes death. Alternative circumstances where negligence is gross, but likewise is momentary but tragic in result, can be imagined. Both those circumstances differ in the magnitude of culpability from the circumstances before me. As King CJ said in R v Weinman[1] the facts and circumstances of a crime of manslaughter are "varied". For that reason the Court of Criminal Appeal in R v Papazisis & Anor said[2]:

... there is not and never has been anything like a single tariff for the offence of manslaughter although within distinct categories of manslaughter varying patterns of factual circumstances may be identified. It is in fact notorious that manslaughter is a crime which attracts a wide range of sentences, perhaps a wider range than any other crime. The reason for this is simply that the circumstances in which the crime is committed can vary infinitely.

24 In my view the circumstances under which your crime was committed are of considerable culpability. You were a highly experienced nurse. On any view your husband had sustained a serious injury in the physical altercation between the two of you. It would have been a simple matter for someone of your experience to ascertain whether or not he was alive. You did not do so. Rather you chose to arrange for his body to be placed in his car and driven away to be disposed of by burning.

25 It is said on your behalf that this decision was made by you "in panic". Whilst I accept in your favour that it is likely that the decision to dispose of his body was made in some haste, nevertheless there was ample time for someone of your experience to have undertaken the relatively simple task of determining whether or not your husband was alive. His body had to be wrapped in a blanket and moved from the house and placed in the car. Clearly there was sufficient time to form a plan to dispose of his body. Your criminal negligence reveals a callous indifference on your behalf to fulfil the clear duty of care that you had to your husband, which was to ascertain whether he was alive and if so to arrange medical treatment for him. Furthermore, your actions following the infliction of the initial injury to your husband bespeak considerable thought and presence of mind.

26 In my view, this case is a most serious example of the crime of manslaughter by criminal negligence.

27 Your crime has left the family of Patrick Plumbe devastated by his loss and the manner of his death. Victim impact statements have been tendered before me. His only brother, Terry Plumbe misses him greatly. He has consulted with a psychologist and has been prescribed anti-depressant medication. In addition, written impact statements from your victim's sister-in-law Christine Plumbe, his nephews Lachlan Plumbe, Kevin Plumbe and Samuel Plumbe, his nieces, Angelina Plumbe and Lieszel Plumbe are before me. Likewise your victim's sister Barbara Cole and her husband have filed written impact statements. Those written impact statements spell out with clarity the effect that the death of a good and decent man has had upon each of them and in particular upon the brother and sister of Patrick Plumbe. Not surprisingly the manner of his death, and your callous and grossly negligent disregard for his welfare causes each of them great grief. Your criminal negligence has caused and will continue to cause the family of Patrick Plumbe great distress.

28 You were born on 24 April 1947 and thus are now 61 years of age. You matriculated from Liverpool High School in New South Wales and then completed a degree in Accountancy at Newcastle University. Subsequently you became a registered nurse, which occupation you pursued for approximately 38 years. Over the last 5 or 6 years of your working life as a nurse you were employed principally as a hospital administrator and manager.

29 You first married in 1967, that marriage ending in divorce in 1980. You have three children from that marriage. You remarried in 1983, but your second husband died in 1996. That marriage produced your son, Michael Vandergulik who is now aged 23 years.

30 Your counsel has informed me that in 1994 you suffered back injury during the act of lifting a patient with the consequence that you have had multiple surgical procedures in relation to damaged lumbar discs. Your counsel has informed me that you have been left with chronic lower back pain with radiation and loss of sensation into the lower limbs. This is said to be the principal reason for your use of a wheelchair. In addition your counsel has informed me that as a result of the shooting incident you have suffered some nerve damage which makes it more difficult for you to grasp and control objects with your left hand.

31 A number of medical reports have been tendered before me. Reports from a general practitioner, Dr Peter Tisdall are before me. Reports from a consultant rheumatologist, Dr John Findlay have been tendered before me. In addition, a report from St Vincent's Hospital relating to your treatment for a gunshot wound is before me, as is a report from consultant psychiatrist Dr Danny Sullivan.

32 Dr Tisdall reports that you first attended upon him in May 1994 following a lifting incident in the course of your employment as a trained nurse at the Goulburn Valley Base Hospital. A CT scan reveals a "possible small disc protrusion at L4-5". You then had intensive orthopaedic and neurosurgical treatment including multi-level decompression lumbar laminectomy in January 1995. Decompression of nerve roots at L4-5 and L3-4 disc levels was reported to have been achieved with good prognosis. Thereafter you developed an anxiety and depressive condition which required psychiatric treatment.

33 In 2002 you moved to Albury and ran a nursing home for approximately one year. You then accepted an offer of employment as the administrator of another nursing home in Albury, but soon thereafter that nursing home lost its accreditation. As a result of this event you developed severe anxiety and depression. Your lower back pain returned. You again had psychiatric treatment in 2003, 2004 and 2005. Dr Tisdall referred you to a consultant rheumatologist, Dr Findeisen, in December 2005. Dr Findeisen's report reveals that his examination of you was essentially normal except that you had a raised Erythrocyte Sedimentation rate which suggests some inflammation in your body. He considered that you suffered from inflammatory arthritis and prescribed Prednisolone. From time to time you have suffered from slightly elevated blood pressure. Whilst I accept that you have suffered back injury and have arthritis, no medical evidence is before me to suggest that you are confined to or indeed in constant need of a wheelchair.

34 In addition to those reports I have been provided with an up to date psychiatric report prepared by Dr Danny Sullivan who examined you after I remanded you in custody. Dr Sullivan was provided with reports from Dr Tisdall and Dr Findeisen to which I have referred. In addition Dr Sullivan noted that he was provided with medical reports from Dr L Walton, Dr W Orchard, Dr Turecek and Mr D Suri. Those reports have not been tendered before me. Dr Sullivan observed that you suffered from no "clinically significant mood disturbance". In particular he considered that on the material before him there "was no apparent mental disorder related to your offence" neither at the time of its commission nor at the time of his examination.

35 As stated above I accept that you have a back injury which causes you some pain and disability and that you suffer from arthritis. Indeed Dr Sullivan observed that you have conspicuous arthritic changes in your fingers. I accept that your state of health and your age is such that imprisonment will be somewhat more burdensome for you than for others. That said however, there is nothing in the medical evidence before me to suggest that you suffer from any condition which will not be capable of being dealt with in an appropriate manner by prison authorities or that your physical and mental health is such that imprisonment will be more difficult for you to undertake than it is for other prisoners.

36 It is argued on your behalf that your admission of guilt is an indication of some remorse. It is argued that it was not until after the shooting of yourself that you came to learn of the "terrible error" that you had made, that is that you believed your husband to be deceased at the time you arranged for his body to be disposed of, but that you had not "checked adequately" to ensure that he was not alive. It is contended on your behalf that in such circumstances your attempt to discredit Tony Calandro in the eyes of police does not reflect a lack of remorse in respect of the offence of manslaughter, but rather in respect of another offence of disposing of a body.

37 The shooting of yourself took place on 9 June 2006. The first autopsy was conducted on 3 May 2005. The conclusion reached by the pathologist who undertook that autopsy was that your husband died from the effects of fire following a motor vehicle accident. It may be that you did not know of that finding until considerably later and thus it can be said that your conduct in falsely accusing Calandro does not reflect a lack of remorse for your killing of your husband. Accepting that that is so, nevertheless your conduct reveals a lack of remorse for your callous disposition of his body and a determination that the truth not be uncovered. Certainly there is no evidence of any remorse on your part from the time that you must have been aware of the enormity of your conduct.

38 Furthermore, your counsel has submitted that the fact that you have not assisted the prosecution in nominating other potential accused, does not reflect a lack of remorse. It is submitted on your behalf that the likelihood is that those who assisted you in the disposal of Mr Plumbe's body are one or more of your own children, and in such circumstances your lack of cooperation does not demonstrate a lack of remorse.

39 Whilst, perhaps it is not surprising that you have not provided any such assistance to police, you have in fact provided no assistance at all to police. Save for the fact that on the third day of your trial for murder, you admitted your part in the death of your husband on the basis that you believed he was dead at the time his vehicle was set alight and in addition that you now concede that what you told Tony Calandro was in essence the truth, you have provided no assistance at all to the authorities. On the contrary, by the series of stratagems and manipulation I have described, you sought until after the jury was empanelled in your trial to deflect and impede proper police investigation into this crime.

40 In my view you do lack remorse for the death of your husband and for the part you played in it. Apart from your late admission of your guilt, and an assertion made by you to Dr Sullivan that you "felt guilt and wished the events had not happened", I am unable to detect any sign or statement of contrition made by you. There is nothing before me to demonstrate that you have anything approaching a full understanding of the enormity of your conduct or the effect it has had upon those who cared for Patrick Plumbe.

41 I accept, as is submitted by your counsel, that in all the circumstances specific deterrence and rehabilitation, to use the words of your counsel, are "not overly significant sentencing aspects". I agree that it is unlikely that you will commit a similar crime again. That said however, general deterrence remains a matter of significance, and as is conceded by your counsel, so does the question of just punishment. Your criminal negligence resulted in the death of your husband. As I have stated, in my opinion your negligence was gross in the extreme and was characterised by callous indifference as to whether your husband was indeed dead as you believed. I am bound to accept that you did so believe that your husband was dead. However, apart from the fact that he had suffered a head injury of some significance and was apparently unconscious, and no doubt was bleeding, there was no reasonable basis for a belief that he was dead. Your criminal culpability is all the greater because your nursing training would have enabled you to have determined the truth quickly and simply and to endeavour to obtain medical assistance. Instead of checking the condition of your husband you determined to destroy his body. He was denied the opportunity of having medical treatment for his head injury. Your conduct does call for the application of just punishment as a sentencing principle in all the circumstances.

42 There is no alternative other than to impose a sentence of imprisonment. Your counsel, very properly concedes that that is so. However he submits that your age, your state of health, your lack of prior convictions and the circumstances of the offence call for what he describes as a "lower than normal non-parole period" to be imposed. In my view, there is little basis for the fixing of a non-parole period which would leave you, if paroled, on parole for an extended period of time. As your counsel has submitted rehabilitation and specific deterrence are not overwhelming factors in your case. It is difficult to see what benefit the community, or you, would derive from a long period of possible parole. In my view this is a case where if anything, the opposite is the case.

43 Section 6AAA of the Sentencing Act 1991 makes provision for the articulation of sentence discount by reason of a plea of guilty. Although you did not plead guilty in the conventional manner I have reduced the sentence I would otherwise have imposed but for your admission of guilt by one year. Your admission of guilt however does not signify remorse and it came at the eleventh hour after a long course of strategems and manipulations by you seeking to avoid your true liability. However a limited discount is appropriate.

44 I sentence you to 9 years' imprisonment. I direct that you serve 6 years' imprisonment before being eligible for parole.

45 I declare that you have served 289 days pre-sentence detention and I direct that such declaration be noted in the records of the Court.

ADDENDUM: 13 February 2009: Upon completing the 'Return of Prisoners Convicted Form' which records that pursuant to s 6AAA of the Sentencing Act 1991 I have by reason of the admission of guilt reduced both the head sentence and the non-parole period I would have otherwise imposed by one year, I realized paragraph 43 above did not reflect or state my full intention. The signed 'Return of Prisoners' however does do so.

[2] (1991) 51 A Crim R 242, 245 (Young CJ, Brooking and Marks JJ).

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