R v Cumberbatch [2002] VSC 382

8. Stanley Cumberbatch lived at 1276 Mount Dandenong Tourist Road, Kalorama. Although you were legally separated, you maintained a relationship with him, this relationship being in more recent times an amicable one. At the time of the murder you were living in a unit at 10A McKay Avenue, Mooroolbark in a complex run for the elderly by the Anglican Church and known as St John's Park. It was your practice to spend a lot of time with the deceased, Stanley Cumberbatch and you regularly went to stay at his home for three or four nights at a time. Your husband was last seen alive on Tuesday 5 September 2000 when he kept an appointment with his former employer and friend, Mr Stephen Johnson, in Croydon after which he collected you from the Croydon Library and then stopping at the Silverdale General Store and Post Office on the way home where he spoke to the Postmaster, Mr John Rollinson. According to the evidence, you returned with your husband to the Kalorama property on the evening of 5 September some time after 6.30 p.m.

11. You were observed leaving the area by bus at approximately 6.00 a.m. on the morning of 6 September 2000.

14. You claimed that you had left the premises that evening some time prior to 8.00 p.m. but returned later that same evening, attempting unsuccessfully to gain access to the house. Your version of events was an attempt to set up an alibi for the time during which Stanley Cumberbatch was murdered. The jury rejected your version of events and accepted the fact that you were in the house at the time Stanley Cumberbatch was murdered and that you murdered him.

17. Stanley Cumberbatch was ultimately discovered by police at 1.20 p.m. on Saturday, 11 September 2000. He was found deceased in his bed. He had suffered a severe head wound involving eight discrete injuries to the head and he had also been stabbed in the middle of his back a number of times (detailed by Dr Shelley Robertson as four discrete incised injuries to the back). According to Dr Robertson the stab wounds to the back appear to have been inflicted after Mr Cumberbatch was dead.

20. On any view of it, it was a brutal attack on a man who was asleep in his bed and unable to defend himself. You went to lengths to avoid apprehension or even suspicion for the crime. You created a scene that, at the very least, was suggestive of a burglar, involving the removal of a computer or part of a computer from the house.

23. You concocted a story about the details of your return from Kalorama to Mooroolbark and then revisiting your husband's house on the nights of 5 and 7 September 2000 respectively whereby said you were unable to gain entry to the premises on either occasion.

26. As conceded in the course of the trial, you told a number of significant lies, particularly in relation to your access to the house. You engaged in complicated manipulative conduct in order to avoid coming under suspicion. The weapon or weapons used to inflict the injuries were never located or identified.

29. The motive for the killing as put by the Crown - and in my view accepted by the jury - was a perception by you that Mr Cumberbatch was about to cut you, and by implication your sons, out of his will in favour of a Ms Jan Le Gros. It was your erroneous perception that Mr Cumberbatch was still involved in an affair with Ms Le Gros at the time that these events occurred. This was confirmed by evidence of telephone conversations you had with your son, Mr Phillip Cumberbatch and in particular your sister, Ms Lydia Hackney. Ms Hackney gave evidence that your concern that your husband would change his will, cropped up in nearly every conversation and that you were very worried about it.[1] This conclusion was further confirmed by the fact that you had in your possession the relevant will at the time of speaking with the police on 12 September 2000 and that you had attended a solicitor with the will in your possession between the time of the killing and the time at which you were speaking to the police.

32. An overview of the whole history of your concern about the will and Ms Le Gros points overwhelmingly to that issue being a motivating force almost to the point of obsession.

35. In short, I am satisfied beyond reasonable doubt that your crime was constituted by the premeditated attack on a sleeping man because of your perceived loss of future entitlement to you.

38. It has been put that the further attack by the knife after Stanley Cumberbatch was dead suggests some stronger degree of animus. Whether that is so or whether it was simply done to ensure that the deceased Stanley Cumberbatch was in fact dead is, on the objective facts, speculative and I make no finding on that issue.

42. Turning to your individual circumstances, you are presently 74 years of age, having turned 74 on 3 May of this year. You have no prior convictions and you suffer from what has been described by your Counsel as compromised physical health.[2] You married Stanley Cumberbatch in 1951 in England when you were about 23 years of age. Initially you lived with his parents and at the age of 30 years you and your husband came to Australia with your son, Phillip, who had been born in England in 1952. Both you and your husband were able to successfully obtain employment here. Your husband worked with Mr Stephen Johnson in Croydon and appears to have had an excellent work record. You also found work, firstly, with Bryant and May, and then later at the Peter MacCallum Clinic. There was evidence in the depositional material to suggest that your domestic relationship was not a happy one. Your Counsel suggested that from time to time that you had been the victim of domestic violence. I also note that your son, Phillip Cumberbatch, recorded that the deceased, Stanley Cumberbatch, was often goaded and pushed to the limits and would lose his temper and strike you. I accept, however, that there was matrimonial discord and that you were, from time to time, the subject of physical as well as verbal assault. (See statements and committal evidence of Phillip and David Cumberbatch).

45. Your son, David, was born in 1963 and it is said that you were much closer to your second son than you were to the first. When your son, David, completed his HSC you moved out of the matrimonial home with him. You rented a fully furnished flat some time in the early 1980s when you were 57 years of age. You returned to the United Kingdom to see your sister in the mid 1980s. You stayed there for some three months before returning to Australia. Upon your return you moved back in with the deceased, Stanley Cumberbatch, in Kalorama. Your Counsel has submitted that this was a particularly difficult time for you and that in that period you had recourse to refuges.

48. The legal separation took place in 1989 whereby you were the recipient of some $90,000. You moved to Queensland where your son David had been transferred. You purchased a mobile home in close proximity to your son, daughter-in-law and grand-daughter.

51. You returned to Melbourne when your son, David, was transferred back to Victoria You initially rented accommodation in Ringwood but then later moved sometime in 1997 to the retirement village where you were living at the time of these events.

54. By September 2000, you had developed an amicable relationship with the deceased, Stanley Cumberbatch. To use your own words in the Record of Interview, "He was my friend and he helped me a lot. He took me to the doctor's. He took me to all my appointments. He worked out a diet for me."[3]

57. Your perspective on this matter would appear to be borne out by the objective facts. You appear to have fallen out with both of your sons and I note that you were not even aware that your first son, Phillip, had a child, your latest grandchild. You have been described as a very private person and this, together with the adverse effects of your ill-health, may have been a contributing factor to why you appear today to be so isolated within the community. It has been further put to me that you will be isolated within the prison system due to your age, health and absence of previous gaol experience. Although you have spent approximately one year in custody, that has been reported as being a traumatic experience for you. It has been suggested that your time in custody will be much more arduous than that experienced by a younger and less physically challenged individual.

60. I have read a psychological report from psychologist, Ms Helen Barnacle, conducted on 10 May 2002. You had been consulting Miss Barnacle during your period of incarceration. In the course of these consultations you not only related earlier physical and verbal abuse, but you suggested a sense of betrayal because of what you perceived as Stanley Cumberbatch's predilection to have affairs with other women. I note that Ms Barnacle qualified that in the following way;

"It is my opinion that despite ......past abuse and betrayal, May still spoke warmly about him and continued to share her life with him right up until his death."

64. In general terms, Ms Barnacle concluded that your prognosis at this stage was poor and that you would require psychiatric and/or psychological assistance, particularly in the short term.

69. It has been submitted that I should take into account that you were the subject of verbal and physical abuse earlier in the marriage. Although this was primarily put to suggest a reason for the brutality of the attack, that has to be weighed against the context of the evidence relating to the commission of this offence. Not only is the argument speculative, it flies in the face of the evidence. As Ms Barnacle said in her report

"May has related that the physical and verbal abuse perpetrated by Stanley ceased some years ago , and as such she was able to maintain her sense of companionship with him".

73. This was supported by your answers in the Record of Interview. In particular, I note your answer to Question 1632 of your Record of Interview. Although it reflected an exculpatory argument by you, it nevertheless was a consistent feature in the background of the offence.

77. The gravamen of the plea put on your behalf was that your ill-health and your prison experience to date is such that those factors should mitigate punishment significantly because imprisonment will be a greater burden on you than other offenders. Your Counsel submits that I should take into account the fact that each year of the sentence I impose will represent a substantial proportion of the period of life which is left to you given that you are now aged 74 years. He also referred me to case of Michael Smith, (1987) 27 A Crim R, p.315 wherein King CJ. said:

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape criminal punishment because of the condition of their health. It is the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill-health will be a factor tending to mitigate punishment only where it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." (emphasis added)

81. Your Counsel relied upon the last paragraph above to submit that by reason of your particular state of health and the proposition that there is a serious risk that imprisonment will have a gravely adverse effect on your health, I should give great weight to that as a factor tending to mitigate punishment. I have also been referred to the case of Austin (1996) 87 A Crim R 570 at 572 in which another case of Smith, Unreported Court of Criminal Appeal Western Australia No. 30 of 1994 is cited:

"The significance of old age as a mitigating factor particularly when combined with ill-health is that it constitutes a basis on which the court in the exercise of mercy may impose a sentence significantly shorter than otherwise might be the case."

85. I have also been referred to a case of Hunter (1984) 36 SASR 101, in which King J. said:

"A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial period of a period of life which is left to him."

89. On the other hand, there is a body of authority consistent with the South Australian decision in Smith that, whilst old age is relevant to the quantum of sentence to be imposed, it is nevertheless only one of the sentencing considerations to be taken into account. In Bazeley (1993) 65 A Crim R 154, the court said at page 158:

"The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence."

93. Similarly in Holyoak (1995) 82 A Crim R 502 at 507, Allan JA. (with whom Handley JA. agreed) stated:

"It simply is not the law that it can never be appropriate to impose a minimum term which would have the effect, because of the advanced age of the offender that he may well spend the whole of his remaining life in custody."

97. The authorities on this issue have recently been thoroughly reviewed by Cummins J. in a matter of Che Kien [2000] VSC 376; (2000) 116 A Crim R 339. After a comprehensive review of the authorities His Honour analysed the relevant principles. More significantly, Cummins J. addressed the question that general deterrence is not unimportant in elderly homicides,

"I consider that the question of general deterrence is not unimportant in elderly homicides, because of the aging population and because more and more are coming forward in the courts are cases of elderly persons convicted of serious offences."

101. In that particular case, the murder was perpetrated by an 80 year old accused at the time of the offence, who was 82 years at the time of sentence. His Honour concluded in the course of that sentence that he took into account her age and the fact that she quite possibly would end her days in prison. That case is however different from this case in that His Honour found that there was clear mental disturbance falling short of legal mental impairment or as it was formerly known to the law as insanity. That fact reduced the weight to be given to her culpability for the offence and principles of general and specific deterrence.

105. In the end I must balance the principles of sentencing enunciated in s.5 of the Sentencing Act 1991.

108. Although this is not a case where specific deterrence is an issue the same cannot be said for the issue of general deterrence.

111. The objective facts of this case reveal a premeditated and brutal killing of a defenceless man for gain.

114. While I take into account the consequences of your ill-health and age and the fact that each year of your sentence will represent a substantial portion of the period of life that is left to you these matters must be balanced against the wider sentencing considerations.

* The need to reflect the nature and gravity of the offence;

* Your culpability and degree of responsibility for the offence;

* The need to manifest the denunciation by the Court of the type of conduct in which you were engaged.

124. Balancing the factors as well as I can and being conscious of the principles of law applicable in the circumstances, ultimately I have decided that the appropriate sentence to be imposed upon you is one of imprisonment for fifteen years. I fix a non-parole period of eleven and a half years.

127. I declare that the period of 314 days that you have undergone as pre-sentence detention should be reckoned as having been served under the sentence already imposed.

130. I direct that this declaration and its details be entered in the records of the court.

[2] You suffered from such problems as rheumatoid arthritis, diverticulitis, panic attacks, urinary and faecal incontinence, a trapped sciatic nerve in your left leg, bursitis, and a collapse vertebra.