The Queen v Doherty [2017] VSC 626

2 On Monday 14 December 2015 at approximately 9:40 am, you were at your home address at 6/51 Boonong Avenue, Seaford when a dispute developed between yourself and your erstwhile friend, Christopher Stevens. Mr Stevens had been known to you for some time and in the few days leading up to his death you had invited him to stay at your unit. In the weeks prior to that, Mr Stevens had been living a few hundred metres away at 2/7 Carder Avenue, Seaford. Mr Stevens was then 45 and he had spent long periods of his adult life imprisoned. I accept that your invitation for him to stay at your house was made in good faith.

3 The dispute between you culminated in you stabbing Mr Stevens in the buttock, causing him to bleed quite profusely. He ran from your unit to his friend's home at 2/7 Carder Avenue, Seaford. You followed him, carrying a black-handled kitchen knife with a 15-20 cm blade. You arrived at the Carder Avenue unit about 40 seconds after Mr Stevens. In that time, he had armed himself with three sizeable domestic knives. After some animated discussion, you both moved to the front porch area of the unit, outside the front door. Mr Wesley Robinson, an occupant of the Carder Avenue unit, removed the knives from Mr Stevens and placed them on a table just inside the front doorway. They are clearly visible in that location in police photographs taken subsequently.

4 Mr Robinson remained outside. He described to the jury what he then saw. After a further animated exchange, you moved towards Mr Stevens and stabbed him in the neck/throat area. You tried to stab him again but Mr Robinson prevented you. You then left the Carder Avenue unit and returned for a brief time to your Boonong Avenue unit. Mr Stevens rapidly lost consciousness and subsequently died at the Alfred Hospital that afternoon. The stab wound to the right buttock was approximately two centimetres long and eight centimetres deep. The stab wound to the neck/throat area was harder to measure because of subsequent surgery, but appeared to be about two centimetres in length and about six centimetres deep. It sliced through Mr Stevens' internal jugular vein. I am not satisfied beyond reasonable doubt that you intended to kill Mr Stevens. The jury, by their verdict, were obviously satisfied to that standard that you intended at least to cause him really serious injury. I shall sentence you on that basis.

5 Your conduct over the next several hours was violent, chaotic and bizarre. In short, you taunted police, ran police interceptions, holed up in a drug house, used heroin, took hostages, were unsuccessfully sprayed with OC spray and ultimately you stabbed a female hostage, prompting the police to shoot you. Your conduct was atrocious and must be denounced in very strong terms.

6 I shall spell out this post-murder offence conduct in a little more detail. After you left Boonong Avenue, police made contact with you by telephone. Amongst other things, you told Acting Detective Sergeant Daly that if police turned up at your address you would stab them in a frenzy. At about 2 pm the police attempted to intercept your vehicle on Wells Road, Seaford. You refused to comply with their direction. About half an hour later, police observed you parking your vehicle in Yuille Street, Frankston. They drew their firearms and instructed you to exit your vehicle. You reversed your car rapidly and drove off at high speed on the wrong side of the Overport Road, Seaford. You were not pursued.

7 Shortly thereafter, you attended at 65 Dandenong Road East, Frankston. This house was occupied by, amongst others, Mr Peter Heppeler. Also present when you arrived were Ms Rachelle Wilson, Ms Belinda Harold, two unknown brothers and a man named 'Anton'. You produced a kitchen knife with a dark handle. You were agitated, yelling and screaming. You stated that you had stabbed a guy, the cops were coming and you had run two checkpoints. You falsely asserted you had stabbed your victim eight or nine times - two death blows, 'one in the neck, one blow in so far ...'. You said the cops will be coming and 'it's going to be on'. The brothers and Anton left not long after hearing this and observing your agitated state. Ms Kerrie Summers arrived during this afternoon period.

8 The police located you at about 5:15 pm. They forced entry to the house via the front door. You grabbed hold of Ms Wilson's hair and threatened her with a knife. You yelled to police, 'one of you cunts is going to die' and then ran from the back of the house. This is not the subject of an offence on the indictment and I include it to provide context to your conduct at this stage. Over the next twenty minutes to half an hour, you spoke with police in the street. You were armed with a knife and you made further threats. You were sprayed with OC spray which seemed to have little effect. Somehow you managed to return to the house, which still seemed to be occupied by Mr Heppeler, Ms Wilson, Ms Harold and Ms Summers. It is clear to me that they were far from hostages at this stage.

9 Over the next several hours the police attempted to negotiate with you. You were supplied alcohol and Ms Harold injected you with heroin as the night wore on. You demonstrated to police that the occupants of the house were safe. At about 2:15 am you demanded that the police procure and supply you with ice. It has been agreed between the prosecution and your legal representative that the occupants of the house became hostages (that is, unable voluntarily to leave the house) at about 4:15 am. I shall sentence you on counts 1, 2 ,3 and 4 of the plea indictment on that factual commencement time. As the 4:15 am deadline for the supply of ice passed, you became increasingly agitated. Negotiations continued, and at about 6:25 am, you dragged Ms Wilson to the front door, held a knife to her throat and repeated your demand for ice.

10 You were highly agitated at this time. Negotiations continued unsuccessfully and at about 7:10 am you emerged from the house apparently reciting part of a sonnet from Shakespeare. You were told there was to be no ice. You immediately retreated back into the house and grabbed Ms Summers, who had gone to sleep near the front door. Still armed with your knife, you dragged her outside by the hair. Ms Summers was screaming and begging you not to stab her. The police trained their pistols on you. You then used your large kitchen knife to stab Ms Summers just above the knee and extending upwards to her hip (Charge 5). You were immediately shot in the abdomen and thigh. You dragged Ms Summers back into the house where you both collapsed. The police then arrested you.

11 Ms Summers was taken to Frankston Hospital. The extent of her injury can be understood by the fact that approximately 47 staples were used to close the wound, as well as internal stitches. Her femoral artery was lacerated - this was repaired in surgery and Ms Summers remained an inpatient for nine days.

12 I regard this as a very serious example of the offence of intentionally causing injury.

13 As I have indicated during these reasons, I shall sentence you on the count of murder on the basis that your intention at the time you carried out the fatal act was to cause really serious injury. On the four false imprisonment counts, as I have indicated, I sentence you on the basis that the four persons imprisoned initially remained in your company voluntarily and only became held involuntarily at about 4:15 am.

14 I turn now to your personal circumstances. You are now aged 47. Your adoptive parents are deceased and you have a younger sister. I am told that you have had long term substance abuse issues and that you began drinking alcohol at a young age. I accept this. You were educated at Oakleigh Primary School and Oakleigh Technical School. You were expelled from Oakleigh Tech in year 8. At that stage, you were barely literate. I am told that you were sexually abused as a child and your sister, in her police statement, has expressed the view that this incident deeply traumatised you and has shaped the rest of your life.

15 Certainly, your life has been unstable since your early childhood. Not long after being expelled from Oakleigh Tech, you were sent to Baltara Reception Centre for about 6 months. From that time you were in and out of youth custody. Your sister's statement sets out that you were employed sporadically in labouring type roles. In 1992 you were convicted of intentionally causing serious injury, aggravated burglary and criminal damage. You received a very long sentence for a young man - 11 years and 9 months with a minimum of 7 years and 6 months. These convictions breached a suspended sentence you had been serving for intentionally causing serious injury, armed robbery, three counts of intentionally causing injury and other lesser offences.

16 The upshot of all this was that after this unpromising start to your life, you spent the rest of the 1990s in prison. You actually used your time profitably and by the time you were released, you had sufficiently educated yourself so that you were accepted into the Arts faculty at Melbourne University. You completed an Arts degree and I'm told for a time you were gainfully employed. You worked as a Salesman and a Human Resources Consultant. Unfortunately, you lost this job and lapsed back into substance abuse.

17 In 2010 you were convicted of possessing a controlled weapon without excuse and again in 2012. Later in 2012 you were convicted and sentenced to 3 months' imprisonment and a CCO for affray and criminal damage. You received a short concurrent gaol sentence in October 2012 for threating to inflict serious injury. In 2013 you were sentenced to 6 months' imprisonment, wholly suspended, for recklessly causing serious injury.

18 I consider your criminal history to be sufficiently serious and over such a protracted period as to constitute a significant factor in this sentencing exercise. The principle of specific deterrence must assume real importance in the sentence I shall shortly impose.

19 No psychiatric or psychological material has been relied upon, although I am told that a diagnosis of Bipolar Affective Disorder was confirmed as recently as 2012. It is not suggested on your behalf that any mental illness has contributed to the offences for which I am to sentence you, nor that the term of imprisonment that I shall impose will be any more burdensome as a consequence of it. I do accept that the long term of imprisonment that I must impose will be more burdensome as a result of the injuries you sustained when shot twice by the police. You sustained the following injuries:

(a) perforation of ileo caecal valve from shrapnel;

(d) bullet fragments remaining near L5, right psoas and iliacus, left buttock, adductor and hamstring compartments in the right mid-thigh;

20 You underwent a right partial hemicolectomy and ileocecectomy, being the removal of parts of your colon and 17 per cent of your small bowel.

21 You are currently taking medication for your pain, including 100 milligrams daily of methadone hydrochloride, which I understand is a relatively high dose. Medical records state your pain fluctuates. You suffer from bilateral lower leg weakness, especially in the right leg. You are largely confined to a wheelchair or walking frame when moving around.

22 There is no real evidence of your prognosis. However, it appears most likely that you will continue to experience pain and will be largely immobile for the indefinite future.

23 I accept that your incarceration will be a good deal more burdensome on account of your physical disabilities and I have moderated the sentence I shall impose to reflect this. I also accept that your injuries, the product of your own conduct, are to some degree a rough punishment for that conduct. I take this into account when fixing sentence.

24 I also take into account the fact that your pleas of guilty on Counts 1 - 5 on the plea presentment have saved the community the expense and inconvenience of a trial and some of the witnesses have been spared the ordeal of giving evidence. I am unable to distil remorse from your pleas or from any other source.

25 I accept that an explanation for your conduct can be found in your abuse of illicit substances, together with an underlying violent predisposition. The sentencing principle of general deterrence must be given real weight in the sentence I shall shortly impose. As well, I must reflect denunciation and punishment in the sentence. I consider your prospects for rehabilitation as bleak. I must also take into account the impact of your offending on Christopher Stevens' relatives and loved ones. I have read and take account of the two victim impact statements tendered in this matter. They make for depressing reading.

On the offence of murder I sentence you to 21 years' imprisonment.

On the plea indictment, on Charges 1-4, the false imprisonment charges, I sentence you to 18 months' imprisonment on each.

On charge 5, intentionally causing injury, I sentence you to 6 years' imprisonment.

27 The base sentence is that imposed on the charge of murder. I declare that each of the false imprisonment sentences be concurrent with each other and cumulative on the base sentence. I declare that 3 years of the sentence on charge 5 be cumulative on all other sentences. This comes to an effective head sentence of 25 years and 6 months. I order that you serve 21 years before you are eligible for parole.

28 I declare that you have served 668 days, not including today, by way of pre-sentence detention.

But for your pleas of guilty, I would have imposed sentences of 2 years' imprisonment for each of the false imprisonment charges concurrent with each other and cumulative on the base sentence. I would also have imposed a sentence of 7 years and six months for the intentionally causing injury charge. I would have ordered 4 years of this sentence to be cumulative on all other sentences.