DPP v Whitelegg [2016] VSC 412

3 You strangled your wife at your home between 5.25 pm and 6.39 pm on Thursday 18 September 2014.

4 Your wife had visited a friend earlier that day and returned home after 3 pm.[2]

6 You were a fitter and stronger person than your wife and were easily equipped to overpower her.

7 The circumstances of the murder were detailed in the Crown Opening which was read into evidence at your plea hearing.[3] Victim impact statements were also read aloud in court and tendered.[4]

8 Mr Johns, of counsel, submitted a written plea submission on your behalf,[5] as well as psychological reports from four authors.[6] He also provided some further material pertinent to your current custodial circumstances.[7]

9 The Crown alleges that your wife was killed by ligature strangulation.

10 Mr Johns submitted that the evidence that her death was caused by ligature strangulation rather than manual choking was somewhat uncertain, and that aspect of the Crown Opening was not conceded, although the defence did not put forward positive evidence in contradiction.

11 Although the item used to perform the fatal act has not been identified by police, the explanation you have given through your counsel - that you used your hands to strangle your wife - does not adequately explain the injuries examined and described by the pathologist, Mr Burke. The autopsy photos do not appear consistent with mere manual strangulation. Mr Burke testified at the committal hearing that he was satisfied that a ligature of some sort was used, probably a buckled belt.

12 Mr Burke's opinion as to the cause of death being strangulation and the mechanical means of causing death being ligature strangulation is not attended by reasonable doubt. Although ligature strangulation implies a short period of preparation, perhaps the period required to remove a belt from apparel worn at the time of the event, I am satisfied that the attack on your wife was relatively unplanned and spontaneous. For this reason, the impact of a finding as to ligature strangulation does not significantly aggravate the objective gravity of the offence as against the alternative scenario of manual strangulation.

13 I accept the argument of your counsel, Mr Johns, that on the day in question, you lost control of your temper in the course of a verbal argument with your wife about her decision to leave you, and about her attitude towards you at that point in time.[8]

14 Your wife had accused you of bullying her throughout your relationship in a conversation that occurred shortly before the killing, and said that she was going to leave you for the sake of her own sanity. In acute psychological distress and anger, you killed the person you claimed to love.

15 You later told police that the deceased was your soulmate, but the Crown argued that your attachment to your wife was connected to a need to be in control within the marital relationship.

16 Shortly before you killed your wife, you recorded a verbal argument on your mobile telephone.[9] You apparently wished to have your wife admit that if she left you, you were not forcing her out. Your wife was heavily intoxicated by alcohol at the time of her death.[10]

17 The Crown submitted that the dispute about your possible marital separation in the moments leading up to the fatal attack may have provided a financial motive for the killing. This submission was based on your subsequent report to a psychologist, Mr Guy Coffey, that, following the part of the conversation recorded by you, further shouting occurred with your wife saying she would take half of your assets.[11]

18 The depositions, psychiatric and psychological reports reveal that angry words to a similar effect were said in the past during domestic arguments, especially when the deceased was inebriated, but on those past occasions, the disharmony was resolved and marital relations were restored.

19 I am unable to infer from the content or manner of the recorded conversation captured on your phone that your wife had settled upon a finalised plan to leave you, or that you wished her to leave you or not, or as to what arrangements, financial or otherwise, might have been anticipated by you in the event of marital separation. I am unable to infer that you killed your wife to prevent her from leaving you or seeking a share of the marital asset pool.

20 In my view, the recording is probably typical of the kinds of verbal disputes that were occurring in response to the pressures which you both found yourselves under in late 2014 due to a combination of factors. These factors included your wife's loss of employment, her excessive drinking and gambling, and your own intense preoccupation with the unstable and unsatisfactory employment circumstances afflicting you at that time.

21 You were an officer in the Australian Defence Force ('ADF') and had achieved the rank of Major. Despite an impressive military career and seemingly comfortable lifestyle, your work and home life had become increasingly pressured in the lead up to your offending. You had developed a Delusional Disorder with a paranoiac obsession that the ADF and ASIO[12] were stalking you and wanted to force you out of the ADF to prevent a workplace bullying episode from being exposed by you.[13]

22 You were also embroiled in a long-running dispute with residential neighbours who had made complaints to the ADF against you.

23 It is not evident that over this period you regarded your wife as the key source of your unhappiness or that you desired to be rid of her.

24 There is a spectrum of views provided by other people in their statements to police about the state of your marital relationship over the previous several years. Whilst some of your wife's friends believed that she was unhappy or might leave you, it is also clear that your wife frequently expressed her admiration for you. She was not in regular contact with her family of origin in the United Kingdom or her own children, had had three previous marriages, and may have preferred to remain with you in the hope that things would improve.

25 There is evidence in the depositions, referred to in the Crown Opening, of two previous temporary separations between you and your wife in the months before her death.

26 Mr Downes and Mr Moss, who were friends with both your wife and you, were of the understanding that you had forced your wife out of the marital home for a week-long period about three months before the murder, after an argument over credit card debts she had accrued. You had only agreed to resume co-habitation once you had consolidated those debts and extracted a promise from your wife about repayment. You had also insisted that she reduce her drinking.

27 During a subsequent period of estrangement, when she stayed with Mr Moss and Mr Downes, your wife spoke about her thoughts of leaving you, and fearing that you would harm her, although it is not clear that she had fully resolved to follow through with a permanent separation at that time.

28 However, your wife had previously communicated concerns about your mental state to several people in the latter part of 2014 stating that you had started to become very paranoid.[14]

29 In the recent past, she had also contacted your ADF commanding officer on an occasion when she could not make contact by telephone with you and was worried that you may have self-harmed.[15] You perceived that this caused difficulties for you at work in the form of increased scrutiny of your performance.

30 There had been some lengthy periods of separation during the course of your 18-year relationship.

31 Your wife originally came to Australia for work in 2006, whereas you did not arrive until May 2007. You co-habited in Wantirna at first, but there was a further period of separation between late 2007 and the end of 2008 because you were concerned about your wife's drinking habits, although you did recommence seeing each other whilst living apart.

32 After the most recent period of separation referred to by Mr Moss and Mr Downes, you had spent two weeks away working in Tasmania but when you returned you took your wife away for the weekend to a winery for a deferred celebration of her birthday. The weekend away at the winery preceded the week of your wife's death and was described by you and your wife as a happy event.

33 There is no doubt that your mental state was abnormal to some degree on the night you killed your wife. You were angry about your wife's response in the argument that continued after the recording cut out on 18 September 2014. You told police that the argument was about your wife not trying hard enough to find a new job. I can only conclude that you gave in to murderous rage as a result of your own fragile predicament combined with frustration over your wife's loss of regular employment and spiralling alcoholism.

34 I doubt that you commenced recording the verbal argument with any view towards killing your wife. It is more likely that you lost control and attacked her spontaneously, taking umbrage at her willingness to abandon her relationship with you. Your behaviour directly after the murder is suggestive of an impulsive act quickly regretted.

35 Following the murder, you were consumed by the enormity of what you had done and decided to end your own life, rather than face the consequences of your actions.

36 The evidence reveals that you attended Bunnings at Craigieburn at 6.39 pm and purchased two pieces of plastic tube and some gaffer tape, which you later adapted for suicide by motor vehicle carbon monoxide poisoning.

37 Prior to putting the suicide plan into effect, you transferred money from your bank accounts to your mother in the United Kingdom and wrote her a letter apologising for your actions in killing your wife. You wrote that you were ashamed of what you had done and must pay for it. You apologised for damaging the family name. You invited your mother to take down any pictures of yourself and said that you would be dead by the time the letter arrived.[16]

38 You then set about surrendering your cat to the Epping RSPCA shelter on Friday 19 September 2014, stating to a staff member that you had to flee the country.[17]

39 You wrote a letter to your solicitor indicating that you would be dead by the time he received the letter and that your wife had died on 18 September.[18] Your letter purported to bequeath all your worldly goods to your mother, including your military pension, although, strangely, your letter failed to acknowledge your wife as having been a joint owner of any of those assets.[19] You allocated money to pay for the funeral for yourself and your wife, with her funeral 'to be as lavish as money can afford' and your ashes to be placed together with your wife's ashes if possible. You chose songs and devised details for your wife's funeral.

40 Whilst making these preparations you answered a message on your wife's phone from Mr Moss seeking to borrow a drill, and you then dropped off the drill to Mr Moss, providing him with a false cover story as to the whereabouts of your wife.

41 You posted the abovementioned letters at 1.40 pm on Friday 19 September 2014 at the local post office and then returned home and set about attempting suicide.

42 According to what you told Dr Cidoni, you placed your wife's body into your car alongside your wedding photos. After placing yourself on the seat next to her and holding her hands, you attempted suicide by carbon monoxide poisoning. You failed in your attempt, succeeding only in making yourself very ill.

43 At some stage, you also imbibed a large quantity of prescription medication which also made you very unwell.

44 Over the weekend, you recovered enough from the attempted suicide to take steps to clean up evidence of your illness in your bedroom, although tell-tale signs were still visible to police when they attended.

45 Ultimately, on Sunday 21 September 2014 you telephoned a funeral parlour, stating that your wife had died unexpectedly after being unwell on Friday and asking for assistance. An employee said that you were distressed and crying during the call, and he tried to persuade you to call '000' but met with questions and resistance. He therefore notified the authorities of your call.

46 Paramedics attended your home and observed your wife's body on the floor of the kitchen. Rigor mortis had already set in. You gave a patently misleading account of your wife becoming ill to the paramedics and later to police in an incomplete statement.

47 Subsequently that same day, you participated in police interviews,[20] maintaining the transparently false account put forward in the earlier statement or declining to comment, despite the presentation by police of an array of evidence which contradicted your account.

48 You said, when asked about the adaptations made to your car, that you merely sat in the car 'to take a trip down memory lane', not to commit suicide.[21]

49 You also said you missed your wife and she was your best friend.[22]

50 When asked directly at the end of the interview if you had anything to do with your wife's death, you asked to speak to your solicitor.[23]

51 Since your arrest, you have made a number of serious suicide attempts whilst on remand, including placing a bag over your head and attempting to puncture your heart with a television aerial, piercing your own lungs and requiring surgery.

52 I have no doubt that your suicide attempts have been motivated in part by shame at having killed the person you loved and grief at the loss of your wife's companionship.

53 Whilst some of your conduct in the days after the killing was irrational and muddled, your lies and evasions to the homicide investigators do you no credit, especially given the series of irreversible steps you took following the murder pointed to you as the author of that crime. You equivocated, rather than admitting your own guilt, only finally indicating through your lawyers a plan to plead guilty after you were committed to trial to this Court.

54 Nevertheless, I accept that once the issue of mental impairment was fully explored by your legal advisors, the prospect that you would contest the murder charge was low. This can be gleaned from the transcript of the mention which occurred in late 2015.[24]

55 I also accept that your plea of guilty deserves significant weight as a factor in mitigation of sentence, even though it was not made prior to the contested committal proceeding.[25] By pleading guilty, a great deal of police and court resources have been saved and witnesses have been spared from giving evidence in a murder trial. There are a myriad of reasons why a plea of guilty is usually recognised by superior courts as worthy of a discounted sentence and most of those reasons apply with force to your case.[26]

56 You were born into a large family and were the eldest of seven children. Your father was a strict disciplinarian, but your mother treated you kindly.

57 You have a very close and loving relationship with your elderly mother to this day, despite the fact that she lives in the United Kingdom. Both of your parents are still alive, as are a number of your siblings.

58 The fact that your relatives live abroad and that your parents are unlikely to be able to travel to Australia makes your imprisonment more burdensome, especially in light of the paucity of social connections you retain in your current circumstances.

59 You worked hard at school and were a good student but had to leave school to obtain employment. After achieving your 'O' Levels, you worked at a brewery and completed your Higher National Certificate and Bachelor of Applied Science in 1988 but then attended training at Sandhurst as a reservist before joining the Royal Air Force at age 28, whilst completing officer training at Cranwell. You transferred to the regular British Army in 1990 and served for 17 years.

60 Your British military service caused you to be deployed in the Gulf War in 1991. You were also a participant in peacekeeping forces in Bosnia in 1993 and later deployed as a United Nations military observer in Georgia in 1997. In 2004, you were deployed in Kosovo after the civil war in the former Yugoslavia.

61 You witnessed the trauma and loss of life for which some of those conflicts became internationally known.[27] Psychiatrist Assoc. Prof. Carroll and psychologist Mr Coffey took a history which included features of ongoing trauma as a result of your military service, although not diagnosing a post-traumatic stress disorder.

62 You married Anne Whitelegg in the United Kingdom in 2001, having met and become involved with her in 1994. You had been married once before for a short period.

63 In 2006, she found a job in Australia at Knox Private Hospital and migrated here to take up that role.

64 You later followed her to Australia, obtaining a transfer to the ADF in 2007. You were employed in logistics and attended international and interstate conferences in that role. At an earlier stage of your military career you were in charge of a large number of personnel.[28] However, your career began to falter in late 2013.

65 You had moved with your wife to the house in Hidden Valley in 2012 and co-habited there until the time of these events.

66 Your posting to the Melbourne barracks within the ADF brought you into difficulties with a brigadier who gave you a poor performance review.

67 On 5 December 2013, you broke down at work in response to criticism of your performance and were seen by a medical officer.[29] You were off work until January 2014.

68 A subsequent ADF psychiatric assessment by Dr Baron on 7 January 2014 diagnosed you with depression and an adjustment disorder and led to your position being downgraded in accordance with Army protocol.[30]

69 On 27 January 2014, you were allocated a new role and different commanding officer.

70 You were placed on restricted duty and banned from access to live ammunition for a period until March 2014, when you were re-classified for normal duties by Dr Baron.

71 You were prescribed the anti-depressant escitalopram but advised to come off it within 12 months, and so ceased taking it in May 2014.

72 In April 2014, you made a Freedom of Information request for access to documents on your personnel file. You obtained some redacted documents questioning your fitness to remain in the ADF.[31] You sought further access to un-redacted documents which you had hoped to receive on 18 September 2014 - the day of the murder - but did not in fact manage to obtain.[32] You obsessed over these grievances.

73 You had applied for a discharge from the ADF but then withdrew your discharge application between 15 to 17 September 2014 due to your wife's failure to obtain alternative employment following her retrenchment.

74 The difficulties you were experiencing at work between July and September 2014 occurred concurrently with complaints about you by your neighbours. The ADF was notified of a Magistrates' Court intervention order application by your neighbours after a dispute over vegetation and landscaping.

75 It seems that your paranoia about the actions of the ADF was magnified by a belief that the neighbours were colluding with the ADF to bring about your demise. I am persuaded, on the basis of the depositional evidence and the psychological and psychiatric evidence available to me, that you were suffering from a Delusional Disorder in the lead up to the offence. You thought that the ASIO was involved with the Army and had entered your premises and removed data. You held a number of irrational beliefs and were seen to be acting strangely.

76 It has been submitted on your behalf that I should be satisfied from the psychological and psychiatric reports that your agitation over the workplace issue and your Delusional Disorder were contributing factors in the murder you perpetrated.

77 Since being charged with murder you have been diagnosed with a major depressive episode in partial remission.[33] Your symptoms of depression are in part reactive to your circumstances since the murder.

78 You have also been diagnosed with Delusional Disorder.[34]

79 In considering the submissions as to the effect of your mental abnormality I am cognisant of the clarification provided by the Court of Appeal in the recent case of DPP v O'Neill.[35]

80 I accept that your mental functioning was impaired by the Delusional Disorder you were suffering from at the time you killed your wife, although it is difficult to measure the precise extent to which this abnormal mental state contributed to your commission of the murder.

81 You were capable of rational thought, and knew what you were doing at the time of your actions, although your conduct before and afterwards is suggestive of a disturbed psychological condition, which was effectively untreated in September 2014.

82 Although it was submitted on your behalf that your actions could be partly explained by a belief that your wife was conspiring with the ADF against you, I am unable to satisfactorily conclude that any such belief motivated your actions at the precise time that you killed your wife. However, I do accept that you had become highly agitated about a probable loss of your military career, and related financial worries within a background context of being distracted by paranoid and delusional thoughts.[36]

83 It is likely that your ability to make calm and rational choices at the time you killed your wife was impaired to some degree.[37] But general deterrence still has a significant role to play in the sentence I must impose.

84 Dr Douglas Bell of Forensicare wrote in June 2015 that you were admitted to the Acute Assessment Unit after attempting suicide in prison and found to be suffering from a paranoid illness requiring ongoing treatment .

85 It is likely that your depressive condition will not improve in prison and may be exacerbated by your confinement and isolation from friends and family.

86 I note, however, that you have received some psychiatric treatment and counselling whilst on remand and that you have been compliant with anti-depressant and anti-psychotic medication . You have also acted as a billet and participated in educational courses and an anger management program whilst on remand.

87 But it is likely that your current mental state is such that prison will be more burdensome for you than for a person of normal functioning, as evidenced by your custodial suicide attempts.[38] This proposition is supported by the supplementary report of Dr Cidoni[39] and in the reports of Assoc. Prof. Carroll[40] and Mr Coffey.[41]

88 I should add that the combination of psychiatric and psychological source material proffered in this case was extensive. It included information drawn from lengthy and detailed consultations with Dr Cidoni, Assoc. Prof. Carroll, psychologist Mr Coffey, and from Corrections Victoria and Forensicare records, as well as pre-offence Veterans Affairs' counselling records and ADF personnel records.

89 Although Verdins[42] principles are only modestly engaged in this case, I note that your overall circumstances at the time of your offending, including the personal crisis you were undergoing and the emotional strains of your marriage, were important triggers to your offending.[43]

90 Murder is a grave and irrevocable crime and must be punished accordingly.

91 The victim impact statements filed in this case spoke volubly about the void left in the lives of others by your actions. Your wife was loved and appreciated for her warmth and caring qualities and was a cherished sister to Mr Rutherford, who resides in the United Kingdom, and close friend of Mr Moss and Mr Downes. Although her contact with her British born son, Mr Nadin, was infrequent, he was saddened to hear of her death.

92 Homicidal spousal violence is abhorrent in any instance and you attacked your wife when her ability to escape from you was compromised by the alcohol she had consumed.

93 Despite the Crown's submission that I should have reservations as to the degree of your remorse, I do accept that you are remorseful, and that you deeply regret having killed your wife.[44]

94 Your mature age means that the sentence I must impose will deprive you of your liberty at a stage of life when many of your contemporaries will be enjoying their years of retirement from the workforce.

95 I also acknowledge that your previous contribution to society through your military and peacekeeping service likely came at a significant personal cost to your psychological wellbeing. Your criminal behaviour was wholly uncharacteristic.[45]

96 Your prospects for rehabilitation are strong, but will be enhanced if you are able to receive appropriate psychiatric management into the future.

97 I note that you have some pre-existing medical ailments that will impact on your prison sentence.[46]

98 In considering the appropriate sentence in your case, I have given weight to the importance of denunciation, just punishment, and general deterrence. I do not consider specific deterrence to be particularly important in your case. I have also considered the principle of parsimony and your rehabilitative prospects.

99 I have paid attention to comparable sentences supplied by both the Crown and the defence.[47]

100 The maximum sentence for murder is life imprisonment.[48]

101 David Whitelegg, I sentence you to 18 years' imprisonment. The minimum term that you must undergo is 14 years before being eligible for parole. I declare 668 days of pre-sentence detention, excluding today.

102 Pursuant to s 6AAA of the Sentencing Act 1991, I state that, if not for your plea of guilty, I would have imposed a sentence of 20 years' imprisonment with a minimum non-parole period of 16 years.

[1] You were arraigned and pleaded guilty to murder on 3 February 2016 before Lasry J in the Supreme Court of Victoria.

[2] Statement of Frances Lowe dated 21 September 2014, contained in depositional material.

[3] Crown Opening (Prosecution Exhibit 5).

[4] Victim impact statements of Marc Nadin, James Rutherford, Stuart Downes and Jacques Moss (together Prosecution Exhibit 4).

[5] Defence outline of plea (Defence Exhibit 1).

[6] Letter from Dr Bell to Spicer Lawyers dated 3 June 2015 (Defence Exhibit 3); Psychiatric report of Assoc. Prof. Andrew Carroll dated 11 March 2016 (Defence Exhibit 4); Psychological report of Guy Coffey dated 19 May 2016 (Defence Exhibit 5); Psychiatric report of Dr Cidoni dated 30 November 2015 and supplementary report dated 20 February 2016 (Defence Exhibit 6).

[7] Prisoner certificates (Defence Exhibit 7).

[9] Recording of audio conversation of 18 September 2014 (Prosecution Exhibit 1).

[10] Her post-mortem blood alcohol content was found to be 0.14 g/100 ml of blood.

[12] Australia Security Intelligence Organisation.

[13] Defence Exhibit 4 [165]-[170]; Defence Exhibit 5 [49]-[55] and [63]-[66].

[14] Statement of Jacques Moss dated 21 September 2014, contained in depositional material, 197-8: 'They had issues with their neighbours. She said he started to believe that people in the army were watching him and that they would come into the house & move things around just to let him know they had been there. He would carry his black shoulder bag with his passport, cash & all their documents because he believed the army wanted to get something on him & that this was the only way that he could make sure they couldn't get it.'

See also evidence of Anna Jurcun: Transcript of committal hearing, Police v Whitelegg (Magistrates' Court of Victoria, Magistrate Lamble, 7 December 2015), contained in depositional material, 20 ('Committal Transcript'); Statement of Stuart Downes dated 24 October 2014, contained in depositional material, 234.

[15] Statement of Nicolene Donn dated 30 October 2014, contained in depositional material, 297.

[17] Statement of Joanna Skrodzka dated 22 September 2014, contained in depositional material, 287.

[19] The Crown pointed to the post-offence transfer of money to your mother as evidence of a controlling attitude over the marital assets, allegedly consistent with the financial motive for the murder.

[20] Record of interview, contained in depositional material, 1301.

[22] Record of interview Q&A 605 and 606.

[24] Transcript of directions hearing, R v Whitelegg (Supreme Court of Victoria, S CR 2015 0177, Justice Lasry, 11 December 2015). See also Transcript of plea hearing, R v Whitelegg (Supreme Court of Victoria, S CR 2015 0177, Justice Jane Dixon, 27 May 2016), 76-8 ('Plea Transcript').

[25] Mr Johns submitted that the questioning at committal focussed on establishing the details of the marital relationship and mode of strangulation rather than contesting guilt of murder: Defence Exhibit 1 [94].

[26] See Phillips v The Queen (2012) 37 VR 594; R v Tasker [2003] VSCA 190; (2003) 7 VR 128.

[27] You were required to video the impact of the Basra road military action on Iraqi troops and saw multiple charred bodies: Defence Exhibit 5 [14]; Defence Exhibit 4 [46]-[50].

[29] Statement of Lieutenant Colonel Richard Critchley dated 31 March 2015, contained in depositional material, 303.

[30] Letter from Dr David Baron, Consultant Psychiatrist, dated 20 May 2014, contained in depositional material, 555.

[31] Indeed, Lieutenant Colonel Critchley testified at the committal hearing that he did not believe you were fit for your role in the army: Committal Transcript, 126-48.

[32] Mr Johns relied on this disappointment as part of the background context to what occurred: Plea Transcript, 78.

[33] Defence Exhibit 4 [172]; Defence Exhibit 6, 9 [12].

[34] Defence Exhibit 4 [80], [167], [173] and [207]; Defence Exhibit 5 [95]-[98].

[35] DPP v O'Neill [2015] VSCA 325.

[36] Defence Exhibit 4 [80] and [165]-[182]; Defence Exhibit 5 [92]-[93]; Defence Exhibit 6, 9 [11].

[37] Defence Exhibit 4 [177]-[200]. Defence Exhibit 5 [89]-[98].

[38] Letter of Dr Douglas Bell dated 3 June 2015 to Spicer Lawyers (Defence Exhibit 3).

[39] Defence Exhibit 6, Supplementary report, 4.

[40] Defence Exhibit 4 [186]-[189] and [207].

[42] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[43] Felicite v The Queen (2011) 37 VR 329, 333 [19].

[44] Defence Exhibit 4 [102] and [155]; Defence Exhibit 5 [65]-[69], [80] and [86].

[45] Before this offence, you had no criminal history: Defence Exhibit 1 [1].

[46] These include a cervical spine laminectomy in 2010, carpal tunnel surgery in 2011 and symptoms of prostate enlargement: Defence Exhibit 4 [110]-[113].

[47] Delich v The Queen [2014] VSCA 66; DPP v O'Neill [2015] VSCA 325; DPP v McPhee [2014] VSCA 156; DPP v Diver [2010] VSCA 254; Cf DPP v Browning [2016] VSCA 153.

[48] Crimes Act 1958 (Vic) s 3(1).