The Frankston Serial Killer

by Vikki Petraitis

On New Year's Eve 1993, Denyer's solicitor lodged an appeal against the severity of Denyer's sentence on two grounds: firstly that the 'sentence on each count was manifestly excessive', and secondly, that the 'sentencing judge wrongly exercised his discretion in failing to fix a minimum term of imprisonment being a term of imprisonment less than life imprisonment'.

  Soon after, Melbourne barrister Dyson Hore-Lacy was approached to represent Paul Denyer in an appeal to the Full Court of the Supreme Court against the severity of Denyer's sentence. As far as Hore-Lacy was concerned, barristers had a duty to appear for anyone who requested their services and everybody had the right to receive the best representation they could. Denyer was no exception.

  Preparing the appeal in his spacious but cluttered seventh floor office a short walk from the County Court, Hore-Lacy read through the brief and the summary documents prepared by the Crown Prosecutor. It soon became obvious to the experienced barrister that the appeal was based on a narrow legal principal: should Denyer have received a minimum sentence?

  At his huge polished wooden desk surrounded by weighty, bound legal volumes, Hore-Lacy prepared the defence appeal, noting cases which set a precedent as far as minimum sentences were concerned. He was fully aware of the importance of a minimum sentence to every offender in terms of potential rehabilitation. In spite of the crimes, it was a legal principle requiring a somewhat clinical approach and it was under the simple premise that fair legal representation was the cornerstone of democracy, that Hore-Lacy went to work on the appeal.

  Partly as a courtesy, Dyson Hore-Lacy made a visit to Denyer in Pentridge. Meeting the prisoner for the first time, Hore-Lacy thought he seemed like an average, quietly-spoken person; but then again, he figured, dress most murderers in a suit and put them in a room full of accountants and you'd never spot the difference. Denyer was no exception, which was almost chilling considering what he'd done.

  When the case finally came before the Full Court of the Supreme Court in July 1994, section 11 of the Sentencing Act (1991) came under scrutiny by the three presiding judges, William Crockett, Alex Southwell and Chief Justice John Phillips. Section 11 reads:

  If a court sentences an offender to be imprisoned in respect of an offence for - a) the term of his or her natural life; or b) a term of 24 months or more - the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature or the past history of the offender make the fixing of such a period inappropriate.

  The defence application contended that the previous judge had erred when he had said, 'Unfortunately, I must sentence you now and I cannot abrogate my responsibility to some distant Parole Board.'

  The defence felt that the statement was indicative of the intrusion of an irrelevant circumstance into the judge's considerations.

  The defence also objected to Justice Vincent's wording when he had said, 'Whether you will ever do so [walk among the ordinary people of our community] must await the passage of years and the decision of the executive government at the time.'

  Justice John Phillips upheld the defence submission that Justice Vincent had erred when he said he couldn't abrogate his responsibility to some distant parole board.

  'In my opinion,' Phillips told the court, 'in the exercise of the discretion, no such abrogation arose.'

  It was then that section 11 became relevant. A non-parole period must be set unless the nature of the offence or the past history of the offender made the fixing of such a period inappropriate. Although Paul Denyer's crimes were abhorrent, he had no past criminal history. However, Phillips upheld the original sentence in his refusal to grant a non-parole period.

  In his summing up, Phillips wrote:

  The Nature of the Offences: Three murders and one kidnapping of women were committed over some six weeks.

  The murderous attacks were pressed home with almost unbelievable savagery. There were elements of preparation, planning and subsequent concealment involved. The applicant well knew what he was doing. It was conceded, both before the sentencing judge and before this court, that life sentences were appropriate on the murder counts.

  The past history of the offender: For years prior to these offences, the applicant had harboured thoughts of killing and had carried out stalking of women. According to undisputed expert evidence before the sentencing judge, for a number of years, the applicant had an entrenched sadistic personality disorder for which no effective treatment was presently or prospectively available. The applicant had a hatred for all females except his (de facto) wife and mother and finds the infliction of injury, suffering and death intensely gratifying and pleasurable. In the light of the above summary, it might be said that, on its face, the case of the applicant called for the discretion vested by section 11 to be exercised adversely to him.

  But there are other considerations. The relevant authorities show that minimum terms of imprisonment are to be viewed, in appropriate cases, as benefits to prisoners and conducive of rehabilitation as well as being sentences which, according to the dictates of justice, must be served. The matter of rehabilitation can present in a very great variety of circumstances. It may fall to be considered in relation to offences committed by a youthful person being led astray or by reason of transient pressures or conditions. It may fall to be considered in relation to offences committed by an apparently incorrigible criminal. In the case of the applicant, it falls to be considered in the light of the undisputed expert evidence to which I have earlier made reference. Although, as the learned judge noted, the possibility of some alleviation of the applicant's mental condition in the future cannot be completely dismissed, in my opinion, this expert evidence reveals the applicant's prospects of rehabilitation to be theoretical rather than real.

  Notwithstanding that I am prepared to find error in His Honour's reasons for sentence; I have come to conclude, after consideration of the relevant criteria, that the case of the applicant is one where it is inappropriate that a non-parole period be fixed. Accordingly, I would dismiss the appeal on the grounds that I do not think a different sentence should have been passed.

  It was Justice William Crockett's view, however, that the application rested with the sentencing judge's refusal to set a minimum sentence, thereby withholding from the prisoner the benefits of such a minimum sentence.

  Was the sentencing judge obliged to set a minimum sentence? Justice Crockett summarised the attacks in his findings:

  The nature and extent of the wounds can only allow each attack to be described as one of scarcely credible cruelty and barbarity… The foregoing events are sufficient to suggest strongly that there must have been something in the applicant's mental condition that was seriously amiss. And so there was. The evidence of a psychiatrist and of a psychologist was that the applicant suffered from what is termed a 'sadistic personality disorder'. A sufferer of such a condition possesses 'a narcissistic personality with features of self-idealisation.'

  It was said that the applicant obtained immense gratification from the humiliation, mutilation and killing of others. There is much more in the evidence descriptive of the applicant's psychological condition of the symptoms of that condition. Elaboration of them is not necessary.

  Crockett went on to say that Paul Denyer had been stalking women since he was 14-years-old and that he had freely admitted that he would have continued his 'regime of homicidal attacks upon women.'

  Crockett then moved in his deliberations to the wording of the original sentencing judge, Justice Vincent. The crucial wording of the Sentencing Act regarding the obligation by a sentencing judge to fix a non-parole period when an offender is given a life sentence came under scrutiny.

  Referring to Paul Denyer, Justice Crockett said:

  His past history was unremarkable. He had been free from previous trouble but for a trifling indiscretion dealt with in the Children's Court nine years ago. Guilt of the crime of murder, of itself, is not sufficient to require the sentencer to abst
ain from fixing a non-parole period. We were told of a number of cases where such a period was fixed where murder was the offence and the circumstances of its commission were every bit as sickening as those in the present case.

  Moreover, perpetrators of multiple killings have not been denied the benefit of an order fixing a non-parole period. Indeed, it might be thought that a refusal to fix a period that rests solely upon a finding that there is now, and there may be for the rest of the applicant's life, a risk of danger to the community were he to be granted his liberty at any time in his lifetime, was a refusal which the section did not empower the judge to make.

  It may be said that the suffering of a mental condition that makes the applicant a danger to society has nothing to do with the nature of the offence or the applicant's past history.

  Crockett argued that if no non-parole period was set and the average life expectancy was around 70 years, then Denyer's effective sentence was one of around 50 years, perhaps longer. Denyer, he argued, would be devoid of any incentive to rehabilitate himself.

  Crockett also argued that if, hypothetically, a 40-year-old man had committed the same crimes, he would only serve 30 years if he lived to the average age of 70. That, said the judge, would be a substantial difference in penalties:

  The length of the sentence served and, thus, the measure of the punishment inflicted is dependent upon the pure chance of the offender's age.

  With the exception of Stanley Taylor, the man convicted of the Russell Street bombing, the judge told the court, no one had ever been refused a non-parole period. Taylor was 51-years-old and had a lengthy record of serious crimes of violence.

  While Crockett conceded that Denyer would be an undeniable danger to the community if free, he ruled in favour of a minimum sentence.

  The need to protect the public from an offender's depredation does not permit his incarceration beyond what is an appropriate sentence having regard to his moral culpability.

  The sentence cannot be allowed to act as one of preventative detention.

  Justice Crockett then discussed the possibility that Paul Denyer might one day be cured of his murderous impulses and it would then be the responsibility of some future parole board to decide whether he was released. Justice Crockett concluded that he was of the opinion that:

  …neither the nature of the offences nor the past history of the offender entitled the court to conclude there would never be a prospect of rehabilitation. Consequently, it was the duty of the judge to have fixed a non-parole period.

  Error having been disclosed, the order refusing to fix a non-parole period should be set aside. In lieu, I would fix a non-parole period of 30 years.

  When the third judge, Alex Southwell, agreed with Justice Crockett, Denyer was granted a 30-year non-parole period on a majority verdict.

  It was Friday 29 July 1994 - one day before the anniversary of the day Paul Denyer killed Natalie Russell.

  As far as lawyer Dyson Hore-Lacy was concerned, the community didn't lose by the decision. Denyer's minimum term was the highest non-parole period ever imposed in Victoria, equal only to that of Burwood triple murderer, Ashley Coulston. It was three years longer than that imposed on Hoddle Street killer Julian Knight, who had received a 27-year minimum.

  Hore-Lacy also knew that if the prognosis of Paul Denyer's condition didn't change, he would never be released anyway.

  Future parole boards would have full access to Denyer's file and if there was no cure for his condition and if he continued to be a danger to the community, he would remain in prison forever. His sentence hadn't been reduced; he would simply now have the same opportunity as almost anybody else to apply to be released on parole, if suitable, after serving the minimum term which the majority of the Full Court believed was appropriate in the circumstances.

  Hore-Lacy was also aware that with the incredible advances in medical technology, it was impossible to predict what treatments would be available in 30 years.

  CHAPTER THIRTY-EIGHT

  How long is life?

  With the granting of the minimum sentence, Paul Denyer was once again the focus of media attention. Elizabeth Stevens' uncle, Paul Webster was interviewed for the evening news voicing his outrage at the 30-year sentence.

  'That's ten years per life,' he said. 'It's unbelievable.'

  Natalie Russell's mother Carmel was photographed in full colour for the Friday edition of the Herald Sun under the banner: 'Lament for a life taken.'

  She told journalists that she still, a year later, walked into her murdered daughter's bedroom every morning and said, 'Morning Nat.' Pain was still visible in the mother's eyes. Especially painful for the Russell family was the Supreme Court decision coming on the eve of the anniversary of Natalie's murder.

  Carmel Russell spoke poignantly about the family's plans to visit Natalie's grave and to walk along the bike track and place flowers at the site where Natalie was murdered. The last thing the Russells needed was to hear that their daughter's killer had been granted a minimum sentence. The pain began all over again.

  Carmel Russell also voiced the community's concern. 'He cannot get out because he's going to do it again and people will say, "Oh, he shouldn't have been let out".'

  Debbie Fream's grandfather, William Fream, told the press that 'a person who can do that sort of thing forfeits the right to live in our sort of society at all. They're not human and the fact that he will get out in 30 years, or probably less with good behaviour, it frightens me.'

  Also speaking out strongly against the reduced term was Tricia Rhodes, the president of Victims of Crime Assistance League (VOCAL). She asked publicly what an offender had to do to stay in prison forever.

  'The judgement by two out of three judges of the Supreme Court ignores the death and mutilation of three innocent young women,' she said. 'It ignores the pain and suffering that their families go through to this day and will continue to go through and, just as important, it ignores the feeling of the community.'

  The media made much of the hundred-thousand signatures, collected since the murders began, to bring back the death penalty for Denyer. The Herald Sun even set up a line where readers could register their vote that 'life meant life.'

  Broadcaster Neil Mitchell had followed the Frankston murders from the beginning on his radio program on 3AW. Mitchell had spent his formative years in Rosebud where his father was a teacher, so he knew the Frankston and Peninsula area well from his childhood.

  Before Denyer was apprehended, Mitchell had devoted a lot of airtime to the reaction of the community. Indeed, the listening audience on the Peninsula had increased by 60 per cent with people following the latest news of the murders. The fear was palpable and the only case that Mitchell could compare it to was the reaction to the so-called 'Mr Cruel' abductions and the subsequent murder of 13-year-old Karmein Chan in 1991.

  The first strong wave of public feeling had come after Debbie Fream's body was found. Because reports filtered through that her car had been sighted after her abduction with its lights flashing, it was obvious that she had been kidnapped and then murdered. Her ordeal must have been terrifying.

  The nature of the victims had a lot do with the community fear, and its empathy. The women could have been anybody's sister, daughter or wife.

  Mitchell said, 'There are some murders, because of the entirely innocent nature of the victims, that just grab you.' The radio broadcaster wouldn't let it rest. Devoting much of his program's time to debates on the use of capsicum spray, personal alarms and self-defence methods, Mitchell called upon experts to offer the public advice on personal security.

  Then Denyer was caught.

  Speaking off the record with police officers, Mitchell had been privy to some of the worst details of the murders and Denyer's subsequent confessions, and he had decided to follow the case publicly to the finish.

  When - on behalf of Carmel and Brian Russell - Carmel's sister Bernadette Naughton contacted Neil Mitchell a week after Natalie's murder, he invited
them to come on his program.

  'They really impressed me,' he said later, 'I was in tears on air.' Mitchell has a daughter and as a parent he felt their pain.

  Once the disgust with the granting of the minimum term was voiced on air, the public took over. One caller said, 'We've got to appeal. We've got to make them listen.'

  Mitchell agreed and encouraged people to write to the Director of Public Prosecutions to voice their concern. Using Premier Jeff Kennett's weekly spot on the program to discuss the issue, Mitchell spoke of the crimes and the subsequent sentencing. Kennett himself wondered, on air, what one had to do to get the maximum sentence.

  During Jeff Kennett's interview, Bernadette Naughton rang the station and was put through to the premier. She told him that the Russell family wanted justice and the premier agreed that Denyer should never be released. It was the beginning of the ground-swell of support to lobby the Director of Public Prosecutions to appeal the minimum sentence.

  Initially sceptical that public opinion would have any effect on the DPP, Neil Mitchell nonetheless encouraged the appeal. He had made similar bids to the DPP before on other cases, but to no avail. Lawyers and police he spoke to said he didn't have a chance of success, but to Mitchell, some things were worth fighting for; even if it was just to send the DPP a strong message. He figured that the DPP needed to listen to the public feeling and represent the people.

  The only thing that concerned Neil Mitchell during the whole process was a certain lynch-mob mentality that was apparent in some of the callers. Every time someone phoned in to support the death penalty, he would argue strongly against them.

  In Mitchell's opinion, if ever there was a case that deserved the full punishment of the law, it was this one; and that was exactly what he was fighting for - not the death penalty.