The Queen v Perry [2014] VSC 534

Supreme Court of Victoria|2014-10-27|Before: HOLLINGWORTH J

CRIMINAL LAW - Sentencing - Murder contrary to Crimes Act 1958 s 3A - Intentionally causing injury - Armed robberies - Accused stabbed two jewellery store owners (one fatally) in course of committing armed robbery - Two further separate armed robberies - Accused on parole at time of offending - Early guilty plea - Long criminal history - Antisocial personality disorder - In protective custody - Sentenced to total effective sentence of 27 years' imprisonment, with a non-parole period of 23 years

2 The most serious of those charges arose out of events which took place on Friday, 12 July 2013 at Hastings.

3 On that day, you and your then partner, Rhiannon Bailey, spent the morning in the Frankston area, before having lunch in High Street, Hastings. While waiting for your lunch to be prepared, you suggested to Ms Bailey that the two of you go into a nearby jewellery store, called the Jewel Shed, to have an earring appraised. When you went into the store, you were served by one of the owners, Bridget O'Toole.

4 You stayed there for about five minutes. As you were leaving, you made a comment about having made the counter dirty with your fingerprints; you put your hand inside your t-shirt and wiped down the glass counter. You then used your elbow to close the store door behind you. There is no dispute that you did these things to avoid leaving fingerprints, as you were already planning on robbing the store later.

5 After collecting your lunch, you and Ms Bailey returned to Crib Point, where you were living at the time. In the early afternoon, you drove back into Hastings alone, in Ms Bailey's silver Commodore sedan. You spent about two hours playing the pokies at a local hotel.

6 CCTV footage shows you entering the Safeway supermarket at Hastings around 4.38 pm. You stayed in the store for a couple of minutes, and left without stopping at the registers. Evidence later gathered by the police indicates that this was when you obtained the 20 cm carving knife that you used in the Jewel Shed incident.

7 You entered the Jewel Shed just before 5.00 pm. You had your hoodie top pulled over your head, and were wearing dark sunglasses. You produced a large carving knife from inside your tracksuit pants. You pushed your way through a hinged gate that separated the staff area from the rest of the store, and moved to grab a pad containing toe rings from behind the counter.

8 Mrs O'Toole confronted you. You started struggling with her, moving out into the customer area. Her husband, Dermott O'Toole, also moved towards you. You pushed Mrs O'Toole out of the way, and struggled with Mr O'Toole; he fell onto his back. He got up and followed you and Mrs O'Toole into the customer area. You scuffled some more with Mrs O'Toole, before stabbing at her and pushing her backwards into a glass cabinet. You pushed Mr O'Toole again, and he slipped over onto his back. He put his feet up towards you, in a defensive manner. You moved around to Mr O'Toole's left shoulder area, and stabbed him twice in the upper chest with the knife. You then struggled further with Mrs O'Toole, and again made stabbing motions with the knife in the direction of her midriff, while pushing her to the ground. You fled the store.

9 Mr O'Toole briefly got to his feet, before collapsing on the floor. A number of people rushed to his aid and tried to resuscitate him, but he died at the scene.

10 After you left the shop, you were chased by a number of local people. You were seen getting into a silver Commodore and driving off. A bystander noted the car's registration details, and informed the police.

11 Sometime after 5.00 pm that day, you enlisted Ms Bailey's assistance to get some petrol and a lighter, and to accompany you while you set fire to the Commodore on some vacant land at Crib Point. The two of you then went home in Ms Bailey's other car. Afterwards, she reported to police that the Commodore had been stolen, as you had directed her to do. You did this to try to avoid being linked with the Jewel Store events.

12 According to a post-mortem examination of Mr O'Toole, his death was caused by massive blood loss from a 20 cm deep stab wound to the left side of his chest.

13 Mrs O'Toole was taken to the Frankston hospital. She was treated for multiple lacerations - including to her left elbow and forearm, her back, and her left ear and forehead - as well as bruising to her chest area. She required suturing, and underwent plastic surgery in relation to a number of these injuries.

14 You have also pleaded guilty to committing two other armed robberies, in the week before the Jewel Shed offences.

15 Just after 11.00 am on Saturday, 6 July 2013, you entered a Red Rooster store in Cranbourne. You were carrying a large knife and a canvas bag. You demanded money. You told the 19 year old store manager, Jackson Barfoot, to hurry up and open the safe, or else you would "stab [his] eyes out". Still brandishing the knife, the two of you went into the office area, where Mr Barfoot opened the safe. You took Mr Barfoot's backpack (which contained his wallet), and put the money from the safe into it. You then went back behind the counter and took money from the till, before leaving the store. The amount you took on this occasion was just over $1,000.

16 At 10.10 am on Thursday, 11 July 2013, you went into a Money 3 shop in Cranbourne. You were holding a bag with a solid object inside it. You held the bag towards the staff member, with your hand inside it, as if you were holding a firearm. You told the attendant, Andrew Stallard, to put the money in the bag, or you would "blow [his] fucking head off." Mr Stallard opened the money drawer, and you took almost $3,000.

17 The maximum penalties for these offences are as follows:

• Causing injury intentionally - 10 years' imprisonment;

18 The murder of Mr O'Toole is the most serious of the offences. The prosecution has chosen to charge you with what is often called "statutory murder" or "section 3A murder",[1] rather than common law murder. Both types of murder carry the same maximum sentence. However, the significance of the charge, for sentencing purposes, is that the prosecution does not allege that you stabbed Mr O'Toole with any intention to kill him or cause him really serious injury. Instead, the prosecution case is that you unintentionally caused his death, by an act of violence done in the course or furtherance of committing the armed robbery. The court is obliged to sentence you in accordance with the charge which the prosecution has chosen.

19 The culpability of a person convicted of statutory murder can vary across a very wide range. This is a very serious instance of statutory murder, for the following reasons.

20 You had been planning to rob the Jewel Shed from at least lunchtime that day, when you took such pains to leave no fingerprints on your earlier visit to the store. About 20 minutes before you went to rob the store, you obtained the large-bladed carving knife, which you intended to use in the robbery. Even accepting that, prior to entering the store, you had not formed an actual intention to use the knife to harm anybody, you clearly intended to use it to threaten or frighten whichever staff were in the store at the time. And, as soon as you encountered the slightest resistance from the O'Tooles, you swiftly resorted to using the knife against them both.

21 Although the events in the Jewel Shed lasted for only about 30 seconds, in that short space of time you stabbed Mr O'Toole twice, stabbed at Mrs O'Toole multiple times, pushed them both around, and grabbed the toe rings. The CCTV footage shows you acting in a fast and frenzied manner, entirely consistent with somebody on "ice".

22 The O'Tooles were both in their 60s, and clearly no physical match for you. At the time you stabbed Mr O'Toole, he was lying on his back, in a vulnerable position. You were standing between him and the door and, at that stage, could have left the store. Instead, you moved around his legs and body, moving further into the store, in order to reach over and stab him. The fatal stab involved you thrusting the knife into Mr O'Toole's chest to the full depth of the blade. You fled the store without checking to see how he was.

23 As far as the offence of intentionally causing injury to Mrs O'Toole is concerned, that is a serious example of that offence. You stabbed at her multiple times, and pushed her around violently. She still bears physical and emotional scars from your actions.

24 The only explanation offered for your offending in the Jewel Shed is that you were high on "ice" at the time. That is not a mitigating factor, given your previous habitual usage of the drug, and the fact that you knew how it made you behave.

25 Each of the two earlier armed robberies involved you threatening to cause serious physical harm to shop attendants if they did not comply with your demands for money. The attendants were both "soft" targets.

26 It is an aggravating feature of all of the offences that you were on parole in relation to other armed robberies at the time of committing them.

27 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

28 Dermott O'Toole was 64 years old at the time of his death. Mr and Mrs O'Toole were born in Ireland, and had been childhood friends. After marrying in 1972, they emigrated to Australia. Mr O'Toole was a qualified jeweller by trade, and in 1983 he began his own jewellery business in partnership with his wife. Mr O'Toole would make the jewellery in an old tin shed at the back of their home, to be sold at markets. The business became successful enough for them to move into premises in High Street, Hastings. The business had moved again, to its current location, in early 2013.

29 Many eloquent, moving statements were provided to the court by family and friends of the O'Tooles. They paint a picture of a hardworking, kind, decent man, who lived life to the fullest. They speak of Dermott O'Toole's sense of humour, and his infectious laughter. Mr O'Toole had faced a number of serious health problems, with courage and determination. He loved making beautiful jewellery, and was devoted to his business and his customers, as well as to his family and friends.

30 Not only was Bridget O'Toole physically attacked herself, but she had to watch her husband of 41 years die in front of her, after he came to her defence. Apart from the physical scars caused by your attack, she has become very fearful and hyper-vigilant. She has been diagnosed as suffering from post-traumatic stress disorder. She has lost her enjoyment of life. She feels guilt at having been the one who survived. She and her husband had planned on working for a few more years, before retiring and travelling around Australia in a caravan; now she struggles to imagine her future without him.

31 Their three sons (Christian, Trent and Dale), their grandchildren, and other family and friends, have also struggled in different ways with grief and loss at the senseless death of Mr O'Toole, and the terrible effect that these events have had on Mrs O'Toole. His death has left an enormous hole in so many lives.

32 Having to sell off the remaining stock, and shut down a family business which had been built up over almost 30 years, was also very painful for all those involved.

33 Your actions have also affected some of the passers-by who came to Mr O'Toole's assistance, and found him on the floor, covered in blood. Apart from being more fearful for their own personal safety, they feel a sense of regret or guilt at having been unable to save him.

34 Although the amounts that you stole on the two earlier occasions that week were not particularly large, your actions have caused harm to those victims too. Both Mr Barfoot and Mr Stannard have become more anxious and fearful, particularly when they are at work.

36 You were born in March 1987, and are now 27 years old.

37 Your parents separated in your early childhood and you remained with your mother. Your father played no role in your upbringing after their separation. Your mother was a chronic alcoholic, and re-partnered with a violent man. Welfare authorities became involved after it was reported that your mother would leave you and your older brother alone in the house, while she went out drinking.

38 Your first court appearance was in July 1999, when you were 12 years old. By the time you were 13, you and your brother were both living in foster care. You disliked the foster care arrangements, and would go and sleep on the streets or at friends' houses. Since the age of 13, you have spent a large part of your life in juvenile and adult custody.

39 You attended regular high school until year 8. You completed years 9 and 10 while in custody. You have been assessed as of average, or close to average, intelligence.

40 In the periods when you have not been in custody, you have had some periods of unskilled employment, including house painting, factory work and furniture removal.

41 In late 2005, you started a relationship with Carly, with whom you have two children, who are now aged 6 and 7. You have not had contact with those children for some years.

42 It is not clear when you began your relationship with Rhiannon Bailey, or whether that relationship has now ended.

43 You have a long history of criminal offending. The overwhelming majority of your more than 200 convictions are for property offences (mainly theft and burglary) and driving offences. Particularly in your teenage years, you were regularly stealing to support yourself, and were sleeping rough in cars which you had broken into.

44 You were convicted of assault in June 2002, when you were 15; the circumstances of that offending are not known to me. You otherwise have no history of violence, until you started committing armed robberies in June 2008, when you were 21.

45 In February 2010, you were sentenced in the County Court of Victoria by Judge Wood to a total effective sentence of 6 years' imprisonment, for six armed robberies and two thefts committed between June 2008 and January 2009. Some of those later offences were committed while you were on bail for the earlier offences.

46 You were released on parole on 7 February 2013, and had been on parole for about 5 months at the time of the current offences. This is not the first time that you have offended whilst on parole; in 2005, you breached the terms of your then existing parole by committing further offences.

47 You have been dealt with on five occasions for breaching youth supervision orders, intensive correction orders or community based orders. The details of all of those breaches are not known to me, but the number of them further demonstrates your disregard for the law.

48 Whilst your childhood background of alcohol abuse, violence and social deprivation may have some mitigatory effect, it seems from the psychological evidence that it has also led to your becoming a person who poses considerable risks to the community.

49 Over the years, you have been assessed by a number of psychologists, in connection with your criminal activities: by Ian Joblin in January 2006, Bernard Healey in January 2010, and Wendy Northey in June 2014.

50 Mr Joblin expressed concern that you were showing signs of developing a personality disorder. He noted that you knew you should not be involved with alcohol, drugs and antisocial behaviour, but had been unable to put that into practice. He said that, due to your difficult upbringing, you had problems functioning appropriately in society. He said that if those problems were not addressed, the prognosis would not be good.

51 Personality testing conducted 4 years later by Mr Healey showed that you had mild depression, and what he described as a hypomanic trend (which he said was linked to heightened excitability and associated impulsivity). He did not make any mention of personality disorder.

52 According to Ms Northey, your difficult upbringing has led to your failing to develop a sufficiently well-developed moral compass to direct your actions. She diagnosed you as now suffering from antisocial personality disorder, to the extent that you cannot function within society in what she described as "a reliably pro-social manner". She believes the condition is amenable to treatment over time, and recommends you receive such treatment.

53 Your counsel did not suggest that your personality disorder gave rise to any Verdins-type considerations. Rather, the disorder was referred to in the context of prospects for rehabilitation, and the need to ensure that appropriate treatment is made available in custody.

54 As far as your drug and alcohol usage is concerned, the picture is not entirely clear. You told Mr Healey and Ms Northey that you began using cannabis when you were 15, but you in fact have convictions for using or possessing it for several years before that. You have reported that you started using intravenous amphetamine from the age of 20, and "ice" and "liquid G" more recently than that. However, you have no convictions in relation to drugs other than cannabis. You have been on a methadone program during your most recent period in custody. Both Mr Joblin and Mr Healey noted that you have a problem with excessive alcohol consumption, but you told Ms Northey that you do not like alcohol. There will be ample opportunity to address any drug and alcohol problems which you may still have, during the term of imprisonment which I am going to impose.

55 Except for periods when you have been in a management unit, you have been held in protection[2] throughout your term of current imprisonment.[3] Under the current arrangements, you have been housed in a single cell, allowed out of your cell for two hours each day, worked as a billet, and only been able to mix with limited groups of prisoners. Conditions in protective custody can vary over time, and between different prisoners and prisons; but I accept that they are generally more onerous than for prisoners in the mainstream prison population. However, in his sentencing remarks, Judge Wood noted that you had been able to complete a number of courses in the past, even whilst being in protective custody. I cannot predict the precise protection conditions in which you may be held in the future. However, although it is not possible to be certain as to how long you will need to remain in protective custody, I accept that that situation is likely to continue for the foreseeable future.

56 Ms Northey noted that you adapt well to a custodial environment, and that the degree of heavy containment and structure serves to settle you. There is no suggestion that your personality disorder (or the depression for which you are currently being medicated) makes incarceration more onerous for you than for a prisoner without those conditions.

57 In relation to Mr O'Toole's death, you were originally charged with common law murder. When the charge was dropped to statutory murder, just before the committal hearing for the Jewel Shed charges, you offered to plead guilty to that charge, as well as the other charges.[4] This is a very early plea.

58 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has been spared the time and cost of a committal hearing and a trial of these charges against you. The family and friends of Mr O'Toole have been spared what would, undoubtedly, have been a very traumatic trial.

59 Apart from any remorse which is implicit in your plea, there is some evidence of actual remorse. You told Ms Northey, shortly before the plea hearing, that you had felt deeply distressed when you discovered that Mr O'Toole had died. Your counsel says that you have expressed regret to your lawyers, and have told them you would trade places with Mr O'Toole if you could; it is difficult for the court to evaluate such an assertion made from the bar table.

60 On the other hand, the prosecution disputes that you have demonstrated substantial remorse or contrition for your actions. As far as your initial actions were concerned, you fled the scene and took steps to destroy the getaway car.

61 The prosecution also tendered the recordings from 21 phone calls between you and Ms Bailey, during the period from July 2013 to April 2014. In a number of these calls, you vigorously protested your innocence to Ms Bailey, assuring her that you had absolutely nothing to do with the Jewel Shed events. Then, on 30 March 2014, you told her that you had pleaded guilty, because there were "just too many statements" and the DNA had come back positive.

62 In assessing these phone calls, I have borne in mind that you were trying to reassure your then partner, who was your main support person, that you would soon be released from custody. You were also well aware that the phone calls were being recorded by the prison authorities, and may have been reluctant to make admissions on the record. Nevertheless, your calls do not demonstrate even the slightest concern for Mr O'Toole and his family, far less any regret or remorse for what you had done.

63 Unless you receive appropriate treatment for your antisocial personality disorder, your prospects of rehabilitation are poor, and you will continue to present an unacceptable risk to the safety of others. In order to reduce the risk of further offending once you are released from prison, the prison authorities need to make appropriate treatment available, and you need to be prepared to participate seriously in such treatment.

64 Given your personality disorder, your lengthy history of criminal convictions and disregard for the law, and the fact that you have reoffended several times whilst on bail or parole, there is a clear need for specific deterrence in this case.

65 People who arm themselves with dangerous weapons, and go out with the intention of committing an armed robbery, run the obvious risk that things may not go according to plan, leaving somebody dead or injured. And when such people have consumed "ice", there is an even greater likelihood of their reacting or overreacting violently. There is considerable need for general deterrence in this case.

66 The sentence imposed on you must also reflect just punishment, and the community's denunciation of your conduct.

67 Your parole under the sentence imposed by Judge Wood was cancelled on 15 July 2013, and you were ordered to serve the remaining 1 year, 11 months and 14 days of that sentence.[5] That sentence will expire on 28 June 2015. It was not suggested that there were any exceptional circumstances, such that the sentence I am going to impose should not be served cumulatively upon your current sentence.[6] Nevertheless, I am required to have regard to principles of totality, in sentencing you for the current offences.

68 As far as current sentencing practices are concerned, there have been so few people sentenced for s 3A murder, that it is difficult to find comparable cases.[7] However, balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of murder I sentence you to imprisonment of 20 years.

69 For intentionally causing injury, I sentence you to 4 years' imprisonment. Although you injured Mr and Mrs O'Toole in the course of the same short episode, there needs to be some cumulation to reflect the fact that there were two different victims. I order that 2 years of that sentence be accumulated on the sentence for murder.

70 For the armed robbery at the Jewel Shed, I sentence you to 5 years' imprisonment. Having regard to the nature of the statutory murder charge, and the degree of overlap between the facts giving rise to the armed robbery and the murder charge, there should be total concurrency between those two sentences.

71 For each of the two earlier armed robberies, I sentence you to 5 years' imprisonment. They were separate offences, committed on different days and against different victims; there should be substantial cumulation to reflect those matters. However, having regard also to the principle of totality, I will order that 2 ½ years of each of those sentences be accumulated on the sentence for murder.

72 That makes a total effective sentence of 27 years. I fix a period of 23 years as the period you must serve before becoming eligible for parole.

73 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 32 years' imprisonment, with a minimum non-parole period of 27 years.

74 Further, I declare that the period to be reckoned as already served under this sentence is 2 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] Under s 3A of the Crimes Act 1958.

[2] You have not been held in solitary confinement, as Ms Northey incorrectly understood.

[3] There is a non-publication order preventing the publication of the reasons why you have been held in protection whenever you have been in custody since around 2008.

[4] The committal hearing in relation to the two earlier armed robberies had already taken place.

[5] The Adult Parole Board has not made any direction, under s 77C of the Corrections Act 1986, for any of the period during which the parole order was in force to be regarded as time served.

[7] Defence counsel referred to the sentences for eight individuals who have been sentenced for s 3A murder between 2008 and 2014. Neither the prosecution nor the court could locate any other cases. I agree with the prosecution that your offending and personal circumstances are at least as serious as those in Kelly v R [2013] VSCA 336 and Zaim v R [2011] VSCA 80.

At a glance

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Judgment (83 paragraphs)

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