The Queen v Maddigan [2016] VSC 790

2 On 10 & 11 November 2016, I heard an opening on behalf of the Director of Public Prosecutions, victim impact statements and submissions on sentence from counsel on your behalf and the Director. The maximum penalty for murder is life imprisonment. The maximum penalty for willfully committing an indecent act on a child under the age of 16 years is 10 years imprisonment. It is now my responsibility to sentence you for these very serious offences

3 Z was born on 8 August 2004 to Janelle Saunders and Stephen Buttigieg. She was a little over 11 years old at the time you caused her death on 25 October 2015. Her father had died as a result of suicide on 3 July 2010. In 2012, Z's mother commenced a relationship with a man named Joseph Duke.

4 At the time you committed these offences on 25 October 2015, you were almost 30 years old. Nineteen days earlier, on 6 October 2015, you were released from custody after serving the remainder of a sentence for breaching your parole for offences for which you were sentenced in the County Court in 2011. I will return to those matters later in these reasons.

5 Sometime after being released from prison you travelled to Wangaratta and resided with a man named Steven Murray. On 17 October, you were introduced to Janelle Saunders and her daughter Z when you and Murray went to their premises in Wangaratta.

6 A week later, on Saturday 24 October 2015, Z and her mother went to Melbourne for a birthday party and spent the day there. That same day you, Duke, Murray and others had been together and drinking. After their outing in Melbourne, Janelle Saunders and Z returned to Wangaratta at about 8:00pm. That night a number of people, including you, had assembled at Saunders' house. Originally you were not invited. Later, having discovered you had been excluded, you sent a text message to one of those present, Joseph Duke, and arranged to be collected and taken to Saunders' house to what might be loosely described as a party. At that stage, being about 10:45pm, you were described as wearing a gold-coloured chunky ring with a pattern on the face of it.

7 Alcohol and cannabis were being consumed by all present including by you and that seems to have occurred over an extended period. Later analysis from forensic samples taken from you showed that you had also consumed opiates in the form of bupremorphine and benzodiazepine.

8 In the early hours of the morning, Z was still awake. At about 1:30am she got out of bed and was then told to go back to bed. She returned to her room but may not have fallen asleep for some time. During this time alcohol was continuing to be consumed by those present. Later you, Saunders and Duke went to the laundry to use cannabis. At this stage Z was awake and watching YouTube videos with headphones but she did, as you later discovered, eventually go to her room to sleep. More cannabis was being used some time after 3:45am by you and two others and not long after that you fell asleep in the laundry of the premises. You were left there by the others and some kind of covering placed over you. After some time you woke and began to walk around the house. After inspecting most other rooms in the house, you entered Z's bedroom. You later claimed not to recall actually looking for her.

9 In all likelihood Z was asleep at that stage but you turned on the light in her room and woke her. You then recalled thinking that you wanted to have her all to yourself as you described it, and also thought to yourself that she looked 'angelic'. You gestured to her to come to you and she did so. You turned off the light and closed the door. You then removed some of Z's clothing including her pants and underwear. You touched her breast with your tongue and touched her inner thigh and buttocks. That conduct is at the basis of charge 2.

10 You then strangled Z with your hands causing her death, as is clear from the assessment by the pathologist on carrying out a post mortem. Why you did that is a tragic mystery. You have refused, and continue to refuse, to give any explanation as to your actions. I will return to that aspect of your behaviour also.

11 After killing Z, you put her back in her bed, covered her with a doona and left her there. You obviously well knew you had killed her.

12 At some later stage Ms Saunders went to check on you believing you were still asleep in the laundry. You were no longer there. She noticed your cigarettes and mobile phone were, strangely, still on the outside table but she nonetheless returned to the party.

13 Some time later, Ms Saunders heard the sound of someone vomiting and that turned out to be you. You told the group you had been sick and wanted to sleep outside. Mr Duke went inside to find a blanket for you but, when he returned, you had again disappeared. At 4:35am, you sent a bizarre text message to a woman named Felicity Ruhle saying 'tell my kids I love them'. Ms Ruhle was a person you met but barely knew. You had met her three days earlier at a medical centre in Wangaratta.

14 At some stage you left Saunders' house and some hours after that, at 6.20am, you were located by police wandering along the Hume Highway, barefoot and apparently delirious. You told police you were walking to Melbourne. You had superficial self-inflicted laceration to both your arms and a black-handled steak knife was found in your possession, which seems to have been taken from Saunders' house. Believing you to have self-harmed, police subsequently detained you under the provisions of the Mental Health Act and admitted you to Wangaratta hospital. You were breath tested and, at 7:30am, your blood alcohol reading was 0.085%. After being assessed at the emergency department, you were transferred to the Kerferd Unit which provided psychiatric services.

15 At the time of those events occurring, Z's death had not been discovered and she was still lying dead in her bed. It was not until 10:50am that, in an effort to wake her up, Ms Saunders discovered Z's lifeless body, naked from the waist down, where you had left her. Ms Saunders called 000 and paramedics arrived shortly afterwards, but it was all much too late. She was declared to be deceased shortly afterwards.

16 A post-mortem examination by Dr Francis, to which I have earlier referred, revealed Z had died from neck compression as a result of manual strangulation. Numerous materials belonging to you were found on her body including hair follicles and semen. The distinctive gold ring of yours, which you had been wearing on your arrival at Saunders' house, was found in Z's mouth.

17 On 28 October 2015, you were arrested by police at Wangaratta Hospital and conveyed to Wangaratta police station to be interviewed. You have remained in custody ever since. The police seized your mobile phone and found some child exploitation material amongst a much greater number of images of adult pornography. The search history on your phone indicated you had looked for images concerning young female children.

18 Dr Ellix, a psychiatrist who had treated you since your admission three days earlier, made a number of observations. Those included that you were not medically unwell; you were not psychotic nor suffering from any major mood disorder. She thought you may have been feigning some psychiatric symptoms. She diagnosed you with what she described as acute situational reaction. At Wangaratta police station you were seen by a forensic medical officer who concluded you were fit to be interviewed, and so you were.

19 During your record of interview you initially denied any involvement with the murder and molestation of Z and gave no comment answers, as you were legally entitled to do. Your counsel described your responses as 'all over the shop'. However, as investigators presented you with the evidence against you, you responded by saying 'I still honestly don't think I'm capable of that, but the evidence placed in front of me says that I did do it and I can't argue with that fact'. This response, as I will return to shortly when I discuss the issue of remorse, is strikingly similar to the way you reacted to allegations of earlier offending of which you were ultimately found guilty and later sentenced by the County Court to a term of imprisonment.

20 During the interview you described your offending as though you were somehow distant from it, claiming it was like having to sit through a horror movie you were unable to pause or rewind. You expressed being 'eternally sorry' for the family of the child you murdered.

21 Shortly after your arrest police conducted a search of the images on your mobile phone, as I have already described. Along with adult pornography, which made up the large majority of the cache, a number of images constituting child exploitation material were located. A web history search also revealed recently used search terms of a underage pornographic nature. That material demonstrated your predisposition toward sexual interest in female children.

22 In addition, materials subpoenaed from Justice Health disclose conversation between you and Justice Health staff during which you admit to having used 'YouTube' to search for videos of ballerinas and contortionists aged between ten and twelve years. You expressed regret at having not sought help earlier for the problem you appeared to recognise you had.

23 It is almost trite to say that your offending was extremely serious. Words in themselves are inadequate in a case like this. You sexually touched and then murdered a girl of 11 years as she slept in her own bed in her own home. She was entitled to feel safe where she was but it was there that you violently ended her life.

24 True it is, as your counsel pointed out, that a weapon was not used by you to murder Z and neither of your offences seem to have been pre-planned. It may not have been a prolonged or frenzied attack but the fact that you killed her is incomprehensible and in its own way gratuitous. When I raised with your counsel why you had done what you did, it became apparent that you had not given him any instructions about that. Very candidly and properly, Mr Marsh told me he would fall short in providing an explanation and he did.

25 So far as the second charge on the indictment is concerned, the seriousness of it needs to be viewed in the context of the murder and as perhaps providing a motivation for that offence. At all events you were a visitor in that house and, doing those acts to an 11 year old girl in her own bed in the early hours of the morning do not put the offending comprising that charge in the lower to mid-range category, as was submitted on your behalf. In itself it is a very serious offence.

26 At the hearing in Wangaratta on 10 November 2016, I was provided with some 16 victim impact statements. They were marked as exhibit B. A number were read by the junior prosecutor, Ms Holmes, and several of the makers of the statements read them themselves to the Court. As is so often the case in circumstances as tragic as these, these people are thoroughly traumatised by what you have done. They are burdened with this for the rest of their lives. The loss of a child is bad enough in any circumstances but to murder when the child victim was asleep in her bed magnifies the suffering to a point that is difficult to imagine. All of these people have been affected emotionally and in many cases in more material ways. The sense of loss they are suffering was palpable as the statements were being read to the Court. The Director submitted that the effect of your crimes spread well into the community most notably through the school that Z attended. As even your counsel conceded, the magnitude of the loss and grief of these people is very significant indeed.

27 I indicate pursuant to s 8K of the Sentencing Act 1991 that I am assisted by these statements in determining the sentence I should impose on you and I have taken them into account accordingly.

28 Your criminal history is said to be a product, at least in part, of your drug and alcohol history. You have a number of convictions from seven court appearances between 2005 and 2014. You first went into custody at the end of 2011. Significant offending included intentionally causing injury in December 2008 which resulted in a 12 month Community Based Order, which you appear to have complied with. On 8 November 2011, you were sentenced in the County Court for robbery, recklessly cause injury and other offences. The total effective sentence was 3 years and 6 months. The non-parole period was two years. Though you pleaded guilty, as in this case, you claimed no memory of the incident which led to these charges. It involved an incident outside a hotel during which you took items belonging to the victim and then viciously assaulted him. The sentencing judge found that you had remorse for what you had done and that you had positive prospects for rehabilitation. While in custody you were sentenced to concurrent terms of imprisonment for family violence related offences against your former partner.

29 You were released on parole on 29 April 2013 but almost a year later on 10 April 2014 you went back into custody for breaching that parole and remained there until 6 October 2015. Thus, at the time of this offending you had only a few weeks earlier been released from custody.

30 You have no prior convictions for sex offences and, as I said, most of your offending seems to be inextricably linked to your abuse of alcohol and drugs.

31 You are now aged 31 years of age. You are apparently of indigenous descent and are one of 5 children. Since you have been in custody a younger brother of yours and your mother have died.

32 Your education in Mildura was difficult. Your childhood was characterised by involvement with Child Protective Services which was made necessary by the way you and your siblings were treated by your mother. There was physical abuse inflicted on you as a child, so you are told and you have some scars to support that conclusion. You completed primary education and lasted at secondary school until year 9. You have some trade qualifications but your employment has been sporadic.

33 You developed dependencies on drugs and alcohol having commenced to drink alcohol and use cannabis at the age of 11 years. I accept that this began because it was behaviour that was pervasive in your home as a child and has continued from there on. I recognise that within Aboriginal communities alcohol and drugs are often, as it was in your case, endemic. Those pressures had an adverse impact on education and a stable home-life generally and you suffered in your formative years as a result. The continuing effect of your upbringing in those circumstances means that your moral culpability for these offences is lessened. It is the fact of your background of deprivation that is significant.

34 The Director pointed out that despite that background you have demonstrated certain abilities to be trained, to work and a capability to express yourself but I accept that the effects of your earlier deprivation remain a significant effect on your life.

35 Among the material relied upon on your behalf was a report by Dr Danny Sullivan dated 12 October 2016. Dr Sullivan did not give evidence. After a detailed analysis of the material, his conclusions were that you have polysubstance abuse and dependence and recurrent depressive disorder though there is no suggestion that the disorder was connected with your offences. You may also meet the diagnosis for paedophilia. Dr Sullivan notes the link between you consumption of alcohol and propensity for violence. As I understand his opinion, at the time of these offences intoxication disinhibited you to the extent that you were unable to suppress your sexual attraction to young females which you ultimately acted on with devastating effect.

36 Dr Sullivan further notes that your incarceration will be more burdensome due to your depressive disorder and, of course, it will be burdensome in any event because you will be in a long term protection placement.

37 As I noted at the beginning you pleaded guilty to these two offences. You first did that after the committal hearing which was conducted on the issue of mental impairment. Your counsel urged me to conclude that the committal was quite focussed in the way it was conducted and the object was to raise the issue of mental impairment. It soon became clear that a defence of that kind was not available and so you accepted you should plead guilty. The case against you was overwhelmingly strong. I accept that your pleas of guilty have saved the family and friends of Z from a trial and that you have accepted legal responsibility for this very serious offending. I recognised that a trial of this matter would have been a very traumatic experience for these people.

38 The issue of your remorse is significant. It means that if an offender is remorseful they can be seen to acknowledge what they have done with deep regret and take full responsibility for it.

39 Your counsel urged me to conclude that you are remorseful for what you have done. He relied upon your plea of guilty as a sign of your remorse. There is merit in that submission. He also relied upon a letter you wrote to the Court and which he read aloud. In it are erudite expressions of profound guilt, remorse and sorrow. However, despite your apparent repentance, you have omitted to provide an explanation to the family of Z for your conduct in killing this child. That lack of explanation includes the mystery of the gold ring found in her mouth. You are the only person who could explain either or both of those things, but for whatever reason you have not done so. I simply do not believe that it is because you do not remember.

40 Therefore, during the course of the submissions, I posed the question whether you lacked the insight into your offending such as to demonstrate genuine remorse. You persisted in declining to give any explanation for the killing of Z based on some lack of memory. Yet in the cause of establishing that your offences were spontaneous rather than a planned search for Z you did give your counsel instructions about what occurred after you awoke in the laundry of the house up until you entered Z's room and turned on the light. I am unable to reconcile those differences. I indicate now however, that I do not sentence you on the basis that you conducted a planned search for her because I could not be satisfied beyond reasonable doubt that you did that. On the other hand, though I am sure you regret what has occurred and no doubt the situation you now find yourself in, I have significant reservations about the insight you have into your offending and your degree of remorse.

41 As your counsel submitted, you are relatively young. I am bound to consider your prospects of rehabilitation even although you will be in custody for a very substantial period.

42 You have engaged in some educational activities since being in custody including studying English and acting as a peer listener. You have also engaged with the Christian Prison Fellowship and the gentleman from that organisation has written a character reference on your behalf. He suggests that you have been reflecting on your conduct and your life. Mr Marsh submitted that, as he put it, the concept of rehabilitation should not be regarded as closed for you. I am willing to accept that proposition but I am extremely guarded about your prospects. In many respects you have travelled this route of offending, apology and remorse before and then within a few days of your release in relation to those matters you committed these horrific crimes. It becomes very difficult indeed to know how you will change over the long period of time you will spend in custody. I do not conclude that you will not change but I am not confident that you will.

43 A matter of contention during the hearing of the plea was whether a sentence of life imprisonment should be imposed on you. Mr Marsh submitted that it was not open to me to impose a life sentence. In my opinion I should reject that submission. In the cause of submitting that life imprisonment would not be an appropriate disposition, it was first argued by Mr Marsh that in cases where life imprisonment was imposed after a plea of guilty, there were aggravating features that are not present in your case. He pointed out that though you murdered a child, you were not the parent of that child and therefore did not break that fundamental responsibility and relationship of trust. However you were an adult guest in the house of the child's mother where that child was entitled to feel safe. Whilst I acknowledge the difference, I do not accept that it is as significant as was submitted.

44 In other cases, it was also argued, there were often multiple victims with protracted, premeditated and callous or brutal treatment of the victim or victims that made that offending significantly worse than in your case.

45 On the other hand the Director submitted that I should impose a life sentence. He submitted that your offending was in the worst category. Z was very vulnerable and when you entered her bedroom you were, for all intents and purposes, a stranger. The method of killing was violent and occurred face to face and followed a sexual assault. It would not have occurred quickly. Importantly, the Director urged me to conclude that you intended to kill Z as opposed to the lesser limb of murderous intent and I am satisfied that is right. I agree with him, with respect, that the lack of explanation is a troubling feature of your conduct. In addition, and knowing the potential effect on you, you had been drinking alcohol and consuming cannabis all night as you told Dr Sullivan.

46 I have given this matter anxious consideration. A sentence of life imprisonment is a sentence that signifies the community's view about the seriousness of the crime. As is now well established, a guilty plea such as yours to a charge of murder will not necessarily mean that a sentence of life imprisonment will be avoided[1]. Though current sentencing practices must be considered, in my opinion there is little utility in comparing sentences passed in other cases '..because each case must turn on the facts peculiar to it'.[2] Also, in my opinion, and with respect to the Director, it is also not possible to classify murders with precision as instances of the 'worst case'.[3] It is further significant that at age 31 years you are relatively young and that is a relevant and important factor to be considered on this question.

47 However, the circumstances of your offending of sexually molesting and then murdering an 11-year-old child in her own bed without any subsequent explanation coupled with your prior criminal history, the significance of general and specific deterrence and the need for denunciation and protection of the community means that a sentence of life imprisonment is appropriately within the range of sentences.

48 On the first charge on the indictment of the murder of Z, you will be sentenced to life imprisonment. On the second charge, being an indecent act with a child under 16 years, you will be sentenced to be imprisoned for a period of four years. It follows from the imposition of a life sentence on the charge of murder that the two sentences will be served concurrently.

49 During your plea the Director, having urged me to impose a sentence of life imprisonment on you, quite properly indicated that he would not submit that I should not fix a non-parole period and I made it clear I would do so. In deciding on the length of that period I must balance, amongst other things, your prospects of rehabilitation against the right of the community to be protected from you and your potential future offending, distant as that prospect may be.

50 It is not in contention that when released from prison you will be a much older man, however not so old as to be incapable of committing similar crimes should your paedophilia be left unaddressed. On the other hand, I have already said I accept that the prospect of your rehabilitation is not closed and that on the completion of this non-parole period some useful, productive and, hopefully, law abiding life will remain for you. There will need to have been changes, particularly in relation to alcohol and drugs, which will obviously be assisted by your imprisonment. I realise that total abstinence cannot be guaranteed even in those circumstance.

51 In all the circumstances I will direct that you serve a period of 28 years before you are eligible to apply for release on parole.

52 I declare that your pre-sentence detention is a period of 418 days, not including this day, and direct that be entered in the records of the Court and reckoned as time already served pursuant to s 18(1) of the Sentencing Act 1991.

53 I also declare that, pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty to these offences the total effective sentence that I would have imposed would have been life imprisonment with a minimum period before being eligible to apply for release on parole of 33 years.

54 I have already made the disposal orders sought by the prosecutor.

55 The second charge on the indictment is one which will required an eight-year reporting period under the s 34 of the Sex Offenders Registration Act 2004 (Vic). I am informed by the Director that will commence upon your release, whenever that occurs.

[1] R v Quarry [2005] VSCA 65.

[2] DPP v Edge [2012] VSCA 289.

[3] R v Stone [1988] VicRp 19; [1988] VR 141 at 149.