DPP v Withers [2007] VSC 411

2 According to Callinicos and Stoupas, the plan did not work as you envisaged. Stoupas hit Mr Shellard at least twice around the head with an unknown object. She admits that she did this without your knowledge or consent. Callinicos also hit your victim. He did so with his hand at least once in the area of the head. This too was outside any plan that you and he had discussed.

3 In other respects, however, the plan was put into effect. You did find Mr Shellard at home, as you hoped you would. He was asleep, on the bed, when you entered the bedroom. Again, this accords with the scheme you had in mind. Resistance from him was expected. Although he put up more of a struggle than was perhaps foreseen, the ropes that you and your companions had brought to the house were successful in subduing him. A further component of your plan was to inject Mr Shellard with a syringe containing heroin. It was the Crown case that you administered this yourself, shortly before Mr Shellard's death. The evidence in support was in my opinion conclusive; and, by their verdict, the jury must have accepted this.

4 You had also brought with you a proladone, otherwise known as oxycodone pectinate, suppository for use, apparently, as a sedative; and in Stoupas you found a person willing to insert it. By this time, however, the victim was either dead or so close to death that the post-mortem examination found that no oxycodone had been absorbed into the blood or urine. This was almost certainly because Mr Shellard's body temperature at the time was not high enough to allow such absorption.

5 According to the Deputy Director of the Victorian Institute of Forensic Medicine, who gave evidence at the trial, there was an interrelationship between each of, first, the damage suffered to Mr Shellard's brain as a result of Stoupas' assault; secondly, the presence of coronary arthrosclerosis; and, thirdly, the effect of drugs on the brain. While it is possible, according to this evidence, that only one of the three factors associated with the death actually caused it, all three were present at the time and all three appeared to have some operative effect. It is conceivable that death occurred within minutes of the blows being struck to the head, but probable that death followed within minutes of the injection of heroin and before the suppository had any effect. According to the evidence of the toxicologist called at the trial, the concentration of heroin detected in Mr Shellard's body was within the range capable of causing death.

6 On the basis of this and other evidence called at the trial, the jury found you guilty of the charge of murder. It was the Crown case, which the jury must have accepted as having been established beyond reasonable doubt, that you either intended to kill Peter Shellard, or intended to inflict really serious injury upon him, or acted with the knowledge that it was probable that death or really serious injury would result from what you intended to do to him. This intention may not have been conveyed to Callinicos or Stoupas, and if they are to be believed, was not. But it had been formed by the time of the administration of heroin, and perhaps much earlier.

7 The result of your actions at Rose Craddock on 7 May 2005 was the death, in horrific circumstances, of the man with whom you were then sharing your life. He was accosted, while asleep, in the bedroom of his home. He was awakened by people attempting to handcuff his wrists, bind his feet, and place a pillow over his head. The horror he must then have experienced is impossible for the rest of us fully to comprehend. This was, moreover, an assault which had been planned for a considerable period. And this is true even if the intention to kill was only formed shortly before the death.

8 The almost indescribable trauma that must have been experienced by Mr Shellard in those last moments of his life resonates today in those who were close to him. I have read the victim impact statements of his brother John and his first wife Jane. You heard read to the Court on Tuesday last the victim impact statements of his daughters Claire, Sarah and Jenny. You may remember, in particular, Jenny Shellard's description of the trauma of giving evidence, and the torment she experienced as she sat in court and heard about the circumstances in which the father whom she loved and respected had died. It is, indeed, clear that the death of their father has resulted in great anguish to each of his daughters, all of whom were very close to him. It is impossible not to be deeply moved by their account of their loss.

9 I am satisfied beyond reasonable doubt that, some months before Mr Shellard's death, you made a will which you hoped he would execute. Had he done so, and had it been admitted to probate, you would have been a significant beneficiary. In the days after 7 May 2005, you attempted to take advantage of the death by seeking to persuade some of Mr Shellard's debtors to pay their debts to you rather than to his estate. You presented yourself to your stepdaughters as being the deeply sorrowing domestic partner of the man whom you loved. I am satisfied beyond reasonable doubt that in this way, too, you sought both to take advantage of his death and avoid being implicated in it. In the case of Jenny, in particular, you exploited her vulnerability by presenting as one who could share, and empathise with, her sense of loss as well as the deeper trauma caused by the manner of her father's passing. She has described in her victim impact statement how the trust and comfort of which you were once the source has been replaced by what she says is a feeling of utter betrayal.

10 In addition, you sought to incite the murders of Callinicos and Stoupas. You told the undercover police officer whom you hired to do the job that you wanted them dead because they had gone beyond their instructions and killed Peter Shellard, the man you loved. You also told him that you were afraid they would talk.

11 A report from a psychologist, Mr Patrick Newton, has been tendered on your behalf on your plea. He describes the development in you of post traumatic stress disorder as a result of childhood abuse. Difficult as that must have been for you, it was in remission at the time of these offences although it may have contributed, as your counsel submitted, to the very severe post-natal depression from which, as I accept, you suffered following the birth of your second son in 1998. You continue to suffer from this debilitating illness. As a result, any sentence of imprisonment will weigh more heavily upon you than it would on a person in normal health. Moreover, I accept the statement by Mr Newton in his report of 11 October this year that your periods of depression will be more frequent and more intense in prison than they would be were you not incarcerated. For this reason I would ask the correctional authorities to be mindful of the recommendations that Mr Newton has made, and the needs which he has emphasised, at page 4 of his report of 11 October 2007. For my part, I have taken all of the above considerations into account in mitigation of the sentence that I would otherwise have imposed.

12 I have similarly taken into account your pleas of guilty to the charges of incitement to murder. This fact is of limited significance, however, since the prosecution case was very strong, indeed overwhelming. Not only that, but your pleas were made after the start of the trial - although not long after.

13 Impaired mental functioning, whether temporary or permanent, may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. I am not persuaded on the balance of probabilities that your depression has in any way reduced your moral culpability. Indeed, having carefully considered Mr Newton's report and the other relevant evidence, I am satisfied that it has not. All the evidence is that your capacity to function, as you planned the events of 7 May 2007, and as you attempted subsequently to exploit them, was unimpaired by any mental illness or other relevant mental factor.

14 For this reason, too, I am unable to conclude that in your case there should be any moderation, let alone elimination, of specific deterrence as a sentencing consideration. I appreciate that, as is the case with considerations of general deterrence, I must have regard to this aspect of the sentencing exercise both as at the time of the offending and at the date on which sentence is passed. I have proceeded accordingly. I nevertheless remain of the opinion that your depressive illness does not in your case moderate the need for either general or specific deterrence. You are an intelligent and resourceful person, and I take into account your level of functioning at the time of the offences, and your present capacity for insight, which is I am satisfied unaffected to any relevant extent.

15 You are close to your brothers, to your sister, and to your sons, who are, respectively, eleven and nine years old. Imprisonment will it seems result in your only being able to communicate with your children by correspondence, so long as they remain in the custody of their father. This it seems to me is most unfortunate, as I believe that you have qualities from which, with appropriate contact with you, they would benefit. In any event, you are their mother and that in itself is a basis for the belief that they and you would be the beneficiaries of as much contact as in the circumstances is reasonably possible. It is a mitigating factor, for sentencing purposes, that this outcome is unlikely: as a mother separated from her young children, I am satisfied that you will find the burden of imprisonment greater on that account.[1] On the other hand, while the Court is sympathetic to the position of children who through no fault of their own suffer from the imprisonment of a parent, the law does not ordinarily reduce what is otherwise a proper sentence by reason of the impact that imprisonment has on those close to the offender.[2]

16 Your personal circumstances are that you are now 41 years old, having been born in India on 14 October 1966. You lived in relatively comfortable circumstances in New Delhi until arriving in Australia with your parents in 1970. Your schooling was successfully completed, despite your suffering a period of physical abuse as a child, and you became a bookkeeper, an occupation you followed until the birth of your first child. Substance abuse has been a problem in the past, and introduced you to Callinicos and Stoupas. You were reluctant to talk to Mr Newton about this aspect of your life. In the circumstances, it is not an issue that I am in a position to address.

17 I now turn to the appropriate sentences. The first to be considered is that of murder. This was a very grave instance of a very serious crime. You planned your course. You did so with deliberation. You invaded your victim's home. You then invaded his person in the most demeaning way by injecting him with heroin. An accomplice committed a similar insult by inserting a suppository. The injection occurred shortly before death, and the suppository was inserted at the point of death, or very shortly afterwards. Before that, Mr Shellard was awakened from his sleep to be subjected to a night-time attack by three persons, one at least of whom (Callinicos) was in disguise. He was severely injured in that attack. He must have been terrified. He struggled hard, but to no avail. He died from its effects.

18 The unchallenged evidence at the trial was that you were present throughout all this. Despite this, you continue to protest your innocence. As a result, remorse is not a factor for sentencing purposes.

19 You have two prior convictions. I treat them as irrelevant for present purposes. I therefore proceed on the basis that you are a person of good character. Taking this and all other relevant considerations into account, a sentence of 20 years' imprisonment on the charge of murder is warranted.

20 I must next consider the two counts of incitement to murder. It is true that the undercover police officer made the initial contact with you, and not you with him. At the same time, it was you and not he who first raised the subject of the prospective killings of Callinicos and Stoupas. Having raised it, you thereafter continued to give him instructions to put your scheme into effect, and made several down payments as an earnest of your intentions. Yours was not a casual or diffident approach to the prospective deaths of two people. It was purposeful and continued over an extended period. In my opinion, the appropriate sentence is, in each case, seven years' imprisonment.

21 There must, in my opinion, be a degree of cumulation as between the sentence on the charge of murder and those on the charges of incitement to murder. The latter should, I think, be served concurrently, but six years of the first sentence for incitement must be served cumulatively with the sentence for murder. The result is an effective head sentence of 26 years' imprisonment.

22 It is necessary that I give separate consideration to the non-parole period. I must for this purpose determine what period justice requires that you serve in gaol before there can be mitigation of punishment in favour of rehabilitation through conditional release. That period must be fixed by reference to all relevant circumstances, including the fact that parole has a penal aspect.

23 I have, in fixing the non-parole period, proceeded accordingly. Because you suffer from depression, I have taken into account the special hardship that imprisonment will for that reason impose on you. I have similarly taken into account your prospects for rehabilitation. Given your intelligence and resourcefulness, they are, I think, good. I have come to this conclusion despite your lack of remorse. I have also taken into account the hardship that separation from your children will impose upon you while you are in prison.

24 Taking into account these and the other relevant factors, I fix a period of 18 years before you become eligible for parole. I declare that the period of 862 days be reckoned as already having been served under this sentence, and direct that the declaration and its details be entered in the records of the Court.

[1] R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258 at [33] per Callaway JA.

[2] R v Mangione [2006] VSCA 34 at [10].