R v Faure [2000] VSC 208

8. Furthermore, the prosecution has sought an order pursuant to s.464ZF(2) of the Crimes Act 1958 to the effect that the prisoner undergo a forensic procedure for the taking of a blood sample. An order to this effect was previously made by Hampel, J. On 15 December 1998. By reason of the successful appeal upon your previous conviction that order was not executed and ceased to have effect.

11. I, however, adopt the reasons set out in the ruling of Hampel, J. at p.546 to p.549 in the transcript of the trial of this matter before His Honour and order, pursuant to s.464ZF(2) of the Crimes Act 1958 that Leslie Peter Faure undergo a forensic procedure for the taking of an intimate sample, namely blood, in accordance with Part 3 of the Crimes Act 1958.

14. Mr Faure, for the reasons previously advanced by Hampel, J., namely, that the offence is one of murder, that a revolver was used, and that you have a prior conviction for having possession of a proscribed weapon, I make this order. I am required by law to inform you that a member of the Police Force may use reasonable force to enable the procedure to be conducted.

20. You, Leslie Peter Faure, have pleaded guilty before me to the murder of Lorna Stevens. The factual background to the plea made before me is as follows:

23. You and Lorna Stevens had commenced a relationship about three weeks before her death. At about 11 p.m. On

26. 5 August 1997 you and Lorna Stevens went to her residence, which was situated at a bungalow next to a house in Seaview Parade, Dromana. The occupier of the house, one David Dunlop heard, a car arrive at about 11 p.m. Some minutes later he heard what sounded to him like an argument in the bungalow between Lorna Stevens and a man. Thereafter he heard a loud cracking noise like a car backfiring. Everything then went quiet. About half an hour later you were heard by Dunlop to be calling out in the street. You came to Dunlop's front door and he asked you why you were calling for Lorna. You told Dunlop that she had your car. You then went into the bungalow where Dunlop joined you. Dunlop entered the bedroom of the bungalow and found Lorna Stevens lying on the bed, still alive, but obviously wounded. You then walked away from the bungalow. An ambulance was called by Dunlop.

29. Shortly thereafter you were arrested by police a short distance from Seaview Parade. Upon being cautioned by the arresting officer you said, "It was only a game".

32. In the course of a subsequent record of interview you said that you and Lorna Stevens had been playing Russian roulette and that it was all an accident. You said you had been drinking heavily that night and had taken medication for back pain and for other reasons.

35. You were examined by a police medical officer who formed the opinion that your levels of alertness and consciousness were normal and that you were speaking in a rational, if inconsistent, manner. A sample of your blood was taken by that doctor at 4.55 a.m. At that time the sample registered a blood alcohol level of 0.154.

38. In the course of the record of interview you stated on a number of occasions that you had been drunk at the time of the shooting. You said that you had begun drinking at about 11.30 a.m. On the day of the shooting and that you had drunk a great deal.

41. You had met Lorna Stevens at about 2.30 p.m. That afternoon and had been with her from then on. You said that upon return to her bungalow you had sex with her and you both then decided to play Russian roulette with a six shot revolver you had borrowed. You told police you discussed with Lorna Stevens the dangers of that game saying, "You can die here". You told police her reply was, "You gotta die some time". She too had been drinking. You told police that you agreed that you would pull the trigger of the revolver no more than two times each. You told police that you placed a single cartridge in the cylinder of the revolver. The cylinder was spun each time the trigger was pulled. You told police that when you pulled the trigger you aimed to skim her head. First she pulled the trigger, then you did, then she did again, and finally you pulled the trigger and the shot that led to her death was fired.

44. You told police that you were lying on the bed as you played the game and you must have been "too drunk" and pointed the revolver the wrong way. You told police that the alcohol and drugs had affected your judgment and made you "stupid". You said that you had been smoking marijuana at a friend's place during the afternoon in question.

47. There is expert evidence before the court which was led at your trial that the blood alcohol concentration of 0.154 per cent when the sample was taken from you represented a concentration of about 0.22 per cent at the time of the shooting. There was evidence from persons in whose company you had been during the afternoon and night of the day of the shooting about how much liquor you had to drink and about how much you appeared to be affected by alcohol. It was apparent that at the time of the shooting you had had a great deal to drink and you were considerably affected by your consumption of alcohol.

50. In December 1998 you came to trial before a judge and jury in this court on the charge of murder. On that trial you conceded that you were guilty of manslaughter but maintained that you were not guilty of the crime of murder. The prosecution's primary case at that trial was that you were guilty of the wilful murder of Lorna Stevens, it being argued that you had put the revolver to her head in anger in the course of an argument which may have concerned whether she was suffering from AIDS.

53. The prosecution put an alternative case of reckless murder on the basis that you were playing Russian roulette, and on the basis that you must have known that therefore serious injury was likely to result from engaging in that game.

56. The jury found you guilty of murder. You were sentenced to 15 years' imprisonment with a non-parole period of 11 years.

59. Upon handing down your sentence, the learned sentencing judge concluded there was insufficient evidence for him to be satisfied that you had the intention to kill or inflict serious injury upon Lorna Stevens. He, however, was satisfied that you foresaw the probable consequences of your acts and acted with reckless indifference of her life and at a time when your judgment was impaired to some extent by liquor and drugs.

62. You appealed your conviction of murder and in September 1999 the Court of Appeal quashed your conviction on the basis that there had been a misdirection. A retrial was ordered. Your retrial was due to commence before a jury on 17 January this year. On that day I was advised by your counsel, Mr Punshon, that you intended to plead guilty to the count of murder appearing on the presentment. You were subsequently re-arraigned and, as indicated by your counsel, you did indeed plead guilty to the murder of Lorna Stevens.

65. I heard your plea on 20 January this year. Although in the course of that plea the prosecution did not concede that I should find that your murder of Lorna Stevens took place in circumstances of recklessness in the course of a game of Russian roulette, Mr Hillman of counsel who appeared for the prosecution accepted that it was open to the learned sentencing judge in your first trial to make that finding of fact and that it was open for me to do likewise.

68. The learned sentencing judge, who was a senior and experienced judge in this court, imposed sentence upon you after having heard witnesses give evidence upon your trial and having before him all of the evidence. In my view good reason would need to be found by me to come to a different conclusion.

71. Having read the depositions and the transcript of the previous trial, I likewise am unable to be satisfied beyond reasonable doubt that you wilfully and intentionally murdered Lorna Stevens and, accordingly, I accept that the murder of Lorna Stevens took place in circumstances whereby you foresaw the probable consequences of your acts and acted with reckless indifference at a time when your judgment was impaired at least to some extent by the consumption of alcohol and possibly drugs.

74. No oral evidence was led upon your plea before me, but I was invited by your counsel to act upon the evidence which was led before the learned sentencing judge at the conclusion of your trial before him.

77. It was submitted upon your plea that I should impose a sentence which reflected a meaningful reduction of the sentence previously imposed upon you. The prosecution conceded that I should make such a reduction. It was submitted by your counsel, Mr Punshon, that there were three relevant and significant factors which justified such a reduction. Those factors were the fact that you now plead guilty; the fact that there has now been an additional delay of more than one year before sentence; and furthermore, that I should take into account the fact, as submitted by Mr Punshon, that Lorna Stevens, your victim, played an active part in the game of Russian roulette.

80. The issues involved in resentencing after a retrial has been ordered, received the attention of the Court of Criminal Appeal in R v. Chen [1993] VicRp 64; (1993) 66 A.Crim.R. 154. The Full Court in that decision cited with approval a statement appearing in R v. Bedford (1986) 5 N.S.W.L.R. 711 at 713-714 where Street C.J. Said:

"Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view."

84. The Full Court in Chen's case also cited with approval a statement of the Western Australian Court of Criminal Appeal in Williams (No.2) [1982] W.A.R. 281 at 283-284:

"In my opinion the trial judge following upon a conviction on a retrial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so-called, 'that unless there is some strong ground there should not be a disparity between the sentence imposed upon persons convicted on the second occasion after a retrial compared with those that were imposed upon them on the first occasion'. ... That principle is based upon policy. The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed. In the second place, the passing of a heavier sentence on a new trial could be seen as by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But at the same time it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature. But if having had regard to the first sentence and the policy considerations to which I have referred, as the trial judge in this case did, and to all other facts relevant to sentence, the sentencing judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is at that point of his judgment which is decisive and it is a judgment which he must make and act upon."

88. I note that Mr Hillman of counsel on behalf of the prosecution stated upon your plea that the prosecution did not assert that the sentence previously imposed upon you was inadequate.

91. Taking into account the fact that the previous sentence which I respectfully consider to be merciful and humane, was imposed upon you by a senior and experienced judge of this court after he had heard all the evidence in the trial of the matter, and further evidence upon your plea, I do not conclude that there is a basis for me to find that a longer sentence is called for than that passed after that trial.

94. Accordingly, the first issue to be determined by me is what, if any, reduction of the previous sentence passed upon you should be made in consequence of the circumstances which are now before the court.

97. Your counsel, Mr Punshon, submitted before me that there should be a reduction of no less than two years of the minimum term to be served by you before you became eligible for parole. The principal matter raised by your counsel is that the plea of guilty now made by you should be taken into account in your favour. It is submitted that I should accept your plea of guilty is motivated by remorse. It is further submitted that although the plea is late, it is only now that you can make this plea with confidence that your version of events will be accepted, rather than that as the Crown submits, the murder took place in consequence of your murderous intent. It is submitted that I should accept that the plea is motivated by remorse and, further, it was submitted by Mr Punshon that a plea of guilty in a murder trial is an unusual and significant step.

100. I note that evidence of your remorse was given before the court on the occasion of your previous plea by your father who unhappily is now deceased and by your brother Keith Faure and by one Francis Thompson. I note also that psychologist Ian Joblin in a report provided to the learned sentencing judge on the occasion of your previous plea noted your contrition.

103. His Honour in sentencing you on the previous occasion accepted that you realized the extent of your acts and had expressed remorse. He referred to the victim impact statement filed by the mother of Lorna Stevens. This statement, which was also filed before me, confirmed the dreadful emotional loss suffered by her in consequence of her daughter's death. His Honour expressed an opinion in the course of his reasons for sentence that he believed you were aware of the effect of your crime upon Mrs Stevens. Accordingly, the previous sentence reflected the findings of remorse at that time by the sentencing judge.

106. In addition, a psychological report prepared by Mr Jeffrey Cummins, dated 19 January 2 000 was placed before me. You told Mr Cummins that you had thought deeply about the circumstances of the death of Lorna Stevens. You told him that you had no reason to kill her and that you loved her at the time of her death and that you still grieve for her. You told Mr Cummins that you had reached the conclusion that you wanted to plead guilty to the charge of murder partly by making a public statement to Ms Stevens' family that you concede that you were behaving in an extremely reckless manner through playing Russian roulette. You told Mr Cummins you had come to the firm conclusion that you wanted to plead guilty to the charge of murder because you do not wish to put Ms Stevens' family and other witnesses through any further anguish. In this regard I note that upon your plea I was informed that the informant in this matter had stated that Mrs Stevens was "elated" at the fact she would not again be required to give evidence in a trial. Accordingly, I accept that there is a degree of remorse suffered by you and which is reflected in your plea. This requires to be further taken into account.

109. On the other hand, however, the plea of guilty was made at a very late stage and it is difficult not to conclude that your prospects of obtaining an acquittal upon retrial were speculative. I note that on your appeal Brooking, J. Stated that he would not expect a jury upon retrial to have any difficulty in concluding, on the evidence placed before the jury on your first trial, that your act was dangerous in the sense necessary for reckless murder, on the assumption that the jury was not satisfied that the game was an invention.

112. In circumstances where the prosecution case against you is a strong case, it is apparent that plea of guilty is not without forensic advantage.

115. The second significant matter upon which your counsel relies is that there has now been a further delay of more than one year before this matter is to be finally completed. I accept that you have suffered further anxiety and uncertainty throughout this period of delay and that the delay is through no fault of yours.

118. I note also that in relation to your decision to plead guilty you told Mr Cummins that you have now made some level of adjustment to being in custody and that you did not wish to prolong your own anguish and concern regarding your future through participating in another trial.

121. I accept that the issue of delay is a matter which should be taken into account in your favour.

124. The third issue upon which Mr Punshon relies is that in his submission, and to use his words "the crime in this case has to be in a special category because of the complicit role of the victim". The fact that your conduct, which led to the commission of the crime, received the co-operation of the victim may be a relevant issue in terms of mitigation. (See Fox on Sentencing 2nd Ed par 3.628.)

127. Although I accept that is so, the effect of that principle in the circumstances of the present case is not overwhelming. It must be remembered that your victim was by reason of her own drug abuse vulnerable. Furthermore, it was you who had possession of the revolver and the ammunition.

130. You are now aged 35 years. I accept and act upon the basis of your prior personal history as stated by the previous learned sentencing judge at pp.1, 3 and 4 of his sentence. I note he concluded that the evidence heard by him in the trial supported the conclusion that you cared for Lorna Stevens.

133. I note you have no convictions for violence and that His Honour concluded your prospects for rehabilitation are reasonably good.

136. Accordingly, for the reasons set out above, I accept that there is an appropriate basis upon which the sentence which was previously passed upon you should, as submitted by Mr Punshon and as the prosecution concedes, be reduced. However, the fact that the matters referred to by me in these reasons must be taken into account, and the fact that I accept there must be a reduction of the previous sentence imposed, does not mean that I should engage in some mechanical discounting which leads to an inappropriate result. The sentence imposed upon you must still be just. It must still reflect the important issues of general deterrence, specific deterrence and retribution.

139. In my view an appropriate sentence which reflects the balance of the matters in your favour, together with the factors relevant to a just sentence, is 14 years' imprisonment with a period of ten years which I fix, before which you will not be eligible for parole.

142. I declare pursuant to s.18 of the Sentencing Act that the time you have already spent in custody is 913 days.