R v Skura [2003] VSC 290

Supreme Court of Victoria|2003-07-29|Before: Bongiorno J

CRIMINAL LAW - sentencing - incitement to murder - plea of guilty - expression of forgiveness from victim - remorse - psychological disorder - whether inappropriate vehicle for general deterrence - forensic sample - discretionary considerations - s 464ZF Crimes Act 1958

Dorothy Maree Skura, you have pleaded guilty to one count of incitement to murder, such incitement being your attempt, in March this year, to have another person murder your husband on your behalf in consideration of your paying him $25,000. It is now my duty to sentence you according to law and to rule upon an application by a member of the police force that you undergo a forensic procedure for the taking of a body sample for the provision of material for the DNA database, pursuant to of the .

I can dispose of the second matter shortly. The power of the Court to order a forensic procedure as sought in this case is a discretionary power to be exercised upon appropriate criteria in respect of certain scheduled offences. That a person has been convicted of a scheduled offence is not enough on its own to trigger the discretion. If it were, there would be no discretion, an order would follow conviction automatically. In this case Mr Morgan-Payler, Q.C., who appeared to prosecute, can point to no discretionary considerations as to why an order should be made. Accordingly, no order will be made.

You were born in Canada on 3 August 1965. You are now 37 years of age. You married your husband, Gerry Skura, in December 1999 in Vancouver, British Columbia, having met him some years earlier by reason of your both having been employed in the grain industry. You have a daughter, by a previous relationship, who is now 12 years of age. Although your husband has never adopted this daughter, she has been treated as a child of your marriage and is about to return to Canada with your husband, with your consent, to be cared for there by him.

In April 2002 you, your husband and your daughter settled, at least temporarily, in Melbourne, your husband having been transferred from Canada to Australia in the course of his employment with an international grain company. You were not happy with this move; you had no friends or relatives in Australia and were unable to obtain employment. Your husband accepted this transfer which, although not actually a promotion, represented a good opportunity to advance his career. He also hoped that a change of environment would enable you to exercise greater control over a drinking problem which you had apparently had for some time.

Shortly after your arrival in Australia, your husband suffered the first of a series of unexplained medical conditions which persisted throughout most of the rest of last year. He was admitted to hospital with what was presumed to be food poisoning. In May he suffered an episode of persistently falling asleep whilst at work, which resulted in a degree of amnesia. A blood test showed that he had ingested some form of sleeping drugs although he had never taken sleeping pills. Over subsequent weeks he noticed that certain drinks which he took tasted "off". On one occasion you gave him an open bottle of a soft drink at his place of work which tasted strange, such that he threw it out.

In November 2002 your husband had another bout of falling asleep at work. This was followed by an unexplained fire in the bedroom in which he went to sleep alone whilst you went to a shopping centre to buy Christmas presents.

I mention these events because they were detailed in the depositions although they are not the subject of any charge against you. The Crown says that the offence to which you have pleaded guilty was committed against a background of your having engaged in some failed earlier experiments in harming your husband. Whether evidence of those events would have been admissible had this matter proceeded to trial is a matter I need not now determine. No matter how suspicious one might be of your behaviour in respect of these events, you are not being sentenced in respect of them even if they might have constituted criminal acts. You are being sentenced for the incitement to murder your husband in March of this year to which you have pleaded guilty.

At about the end of last year you become acquainted with a group of men who were living in a lodging house in Noble Park. You visited their premises, supplied quantities of alcohol to them and amounts of cash from time to time. In the course of conversations with the undercover policeman whom you subsequently sought to contract to kill your husband, you said that you had paid one of these men $10,000 prior to March this year to carry out that act for you. Apparently he simply disappeared with the money.

At some time prior to March you commenced a sexual relationship with another of the men you had befriended. You asked him if he could obtain a quantity of heroin for you because you wished to put it in your husband's food. He refused to assist you. You then approached yet another of these men who shortly thereafter went to the police.

As a result of this contact with the police, on 4 March of this year you were introduced to a man who called himself "Jason" at the Elsternwick Hotel. "Jason" held himself out as a professional killer. In fact he was an undercover police officer. On that day and in two further meetings on 5 and 6 March at cafes in Elwood, you had long conversations with "Jason" in which you entered into an agreement with him whereby he would kill your husband for $25,000.

In the course of your conversations with "Jason" the price you were to pay for your husband's murder, the method by which it would be carried out, the time at which it would be carried out and your reasons for wanting your husband dead were all discussed. You detailed your husband's habits and movements and showed "Jason" where he worked. You expressed a preference for his death to occur sooner rather than later. You said you would prefer it if your husband's death looked like an accident but ultimately accepted that if that could not be achieved it did not matter as long as he was dead. If the death was a motor accident you would, you believed, benefit even more in financial terms. You told "Jason" that you would also benefit from insurance policies on your husband's life in Canada and would receive a pension from his work related pension fund. You would also inherit the house which he owned in Vancouver. You said you just wanted to go back to Canada so that you could get your life back. Up until the very end of your discussions with "Jason" you were adamant that you had thought the matter through and wanted the murder carried out.

So far as the price for murdering your husband was concerned, the sum of $50,000 was discussed, although you ultimately settled with "Jason" on $25,000, payable by a $2,000 deposit and the balance within 24 hours of your husband's death. Initially you had proposed that a safe method of payment would be for you to transfer money to a business account to be set up by "Jason" after you had returned to Canada with your daughter. You suggested that he should pretend to set up a business involving an ecologically friendly way of cleaning swimming pools without chemicals, and that your transfer of funds into his account could be disguised as an investment in that business. This delay in payment did not suit "Jason", he said, and he insisted on a deposit and a final payment, both in cash. In the event you paid "Jason" $600 at your first meeting and a further $1,400, all in cash, at your third meeting.

It would be difficult to conceive of evidence which more adequately proved the offence to which you have pleaded guilty.

In the course of your discussions with "Jason" you told him of the $10,000 you had paid to another man to have your husband killed and of your difficulty in explaining the withdrawal of that amount, and others, from a family bank account. Your husband believed that you had a gambling problem and you told a psychologist who examined you in prison that you had spent $60,000 on poker machines since coming to Australia. On the other hand, in the conversations you had with "Jason", on at least two occasions you denied that you were a gambler. Whatever may be the truth, I am satisfied that it is of no moment in fixing an appropriate sentence in your case.

Since your arrest on 6 March of this year you have been on remand at the Dame Phyllis Frost Women's Prison at Deer Park. Whilst in prison you have undergone fortnightly counselling sessions with a forensic psychologist, Ms Erica Leonard. This treatment has been paid for by a Canadian health fund.

Ms Leonard was not called to give evidence before this court on your plea, so that her opinion as to any psychological problems you may have, the effect they have had upon your commission of this offence and any opinion she might have as to your prognosis had been denied to the court. The only psychological evidence called was that from Mr Daniel Davis, a psychologist who saw you on two occasions at the request of your solicitors solely for the purpose of giving evidence to assist your plea in mitigation of sentence. His report notes that Ms Leonard was not prepared to discuss your case with him as she believed it would interfere with her therapeutic alliance with you. Whatever may be the situation, Ms Leonard's absence in the circumstances has the inevitable effect of depreciating, to some extent at least, the value which can be placed upon Mr Davis' report and his oral evidence.

Mr Davis' opinion is that you have a mixed type of personality disorder, an adjustment disorder and a disorder of pathological gambling. As I have already noted, you denied that you were a gambler to the undercover police officer whom you attempted to recruit to kill your husband although you had told Mr Davis that you had spent $60,000 on poker machines since arriving in Australia in April 2002.

In his oral evidence Mr Davis offered the opinion that there had been a significant improvement in your psychological situation between the first and the second time upon which he spoke to you. He noted that on the first time you were at pains to shift the blame for your offending to other people. In this regard I note the appendix to his report entitled "Circumstances of Offending" in which he sets out the history you gave him as to the way in which you came to commit the offence for which you are about to be sentenced. Mr Davis told the court that you told him on the first occasion on which he spoke to you that the idea of killing your husband had emanated not from you but from one of the men in the Noble Park boarding house to whom I have already referred. You accused that man, Darren, of blackmailing you and of threatening to harm your daughter if you stopped providing him with money. You never recanted this assertion in your second interview with Mr Davis, hence its inclusion in his report. I do not accept it as a true statement of fact but rather as an attempt to cast blame for your criminality elsewhere. Like the rest of the history you gave Mr Davis, it was not the subject of sworn evidence before this Court.

Ultimately, Mr Davis agreed with a leading question put to him by your counsel to the effect that your offending was borne out of your personality disturbance and adjustment difficulties.

Mr Davis' opinion was, in some respects, corroborated by evidence from Ms Jennifer Hayes, the Uniting Church Chaplain at the Dame Phyllis Frost Centre, who thought that your response to her was one of genuine remorse and a realisation as to the seriousness of your actions combined with a thankfulness that those actions had not ended in a more tragic result.

As the Crown concedes that your early life history (particularly as to a long and terrible history of sexual abuse at the hands of your mother's partner and your grandfather) was much as Mr Davis understood it to be from the history you gave him, some reliance can be placed upon his opinion so far as it relies upon that history. The Crown does not concede, however, that the history reported by Mr Davis as to the way in which this offence was committed was accurate. It indeed contends the opposite. I accept the Crown's contention in this regard. I do not accept that anyone suggested killing your husband other than you.

Your counsel urged me to accept that your offending in this case was as a result of your psychological predisposition or personality disorder and that accordingly any sentence imposed upon you should be moderated as your condition reduced the moral culpability of your offending and that in the circumstances you are not an appropriate vehicle for the principle of general deterrence. Nothing in Mr Davis' evidence, however, leads me to the conclusion that you were suffering any serious psychiatric illness or that your personality disorder or adjustment difficulties deprived you of rational judgment at the time you committed the offence so that you were unable to weigh the potential advantages and disadvantages of the course of conduct in which you were engaged. On the contrary, your decision to recruit someone to kill your husband and the steps you took in furtherance of that aim were all voluntary acts directed towards a logical and rational if wickedly criminal end, namely your freedom to return to Canada and to enjoy the financial benefits which would flow from your husband's death. There is no suggestion that you did not know that what you were doing was wrong or that it was criminal. Indeed, your conversations with "Jason" display an acute awareness of the need for care lest you both be caught. Any moderation of the need for general or special deterrence in your case by reason of any psychological disability you might have as a result of your early life, including a history of sexual abuse, must be minimal indeed.

I accept that you have shown now some remorse for what you have done and are entitled to the benefit of that factor in mitigation of your sentence although whether your plea of guilty was an expression of that remorse or merely a recognition of the overwhelming case against you is impossible to say. Certainly when you were interviewed by the police you maintained denials of your criminality in the face of overwhelming evidence of your guilt. Whatever may be the situation, however, you are entitled to have your plea of guilty and the very early stage at which it was made taken into account in mitigation of any sentence which might otherwise have been imposed had you gone to trial.

Together with your husband you have the care of your 12 year old child. A custodial sentence imposed upon you would have the effect of depriving that child of your care and contact with you over some of the most important of her adolescent years. I accept that you are close to her and that deprivation of contact with her will also affect you more harshly than had that circumstances not existed. Indeed, the imminent departure of your husband and daughter for Canada will itself increase your isolation so as to exacerbate the effect of a custodial sentence upon you. In this regard your counsel drew the court's attention to the International Transfer of Prisoners Act 1997, a federal statute which provides for the repatriation of foreign prisoners to their home countries to serve the balance of their sentences in appropriate cases. He informed the court that Canada is one country with which such an arrangement has been recently put in place. I note the existence of this situation although I consider that the possibility, as a matter of administrative decision, of your repatriation to Canada is a matter irrelevant to the question of an appropriate sentence in your case. I might observe, in passing, however, that there would appear to be very good reasons why that statute should be able to be invoked in your case.

It was argued by Mr Lasry that the most significant mitigating factor in your case and one which distinguishes it from most other similar cases is the fact that your husband has filed a victim impact statement in which he has forgiven you for attempting to have him killed. As well as expressing his wish that you be able to return to Canada with him and your daughter, he says in that statement that he is willing to offer you love, support and a change of lifestyle so that you can re-enter society and your family as a better person.

The Crown did not argue that your husband's attitude was not a mitigating factor in your case. Accordingly, I am prepared to accept it as such although as a matter of principle its relevance must be doubtful. It must be borne in mind that it is the body politic which is represented here by the Crown which has the principal interest in ensuring that a just and appropriate sentence is passed, not the victim.

You come before the court without any criminal history whatsoever and there is nothing to suggest that you will engage in criminal conduct again. Thus, your prospects of ultimate rehabilitation must be regarded as good, although if Mr Davis is correct, that might depend upon your having and benefiting from ongoing counselling and a growing realisation of the enormity of the crime you have committed.

You have pleaded guilty to a crime which had as its object the killing of another human being for motives which, in your case, include the basest of all, greed. You wanted to rid yourself of your husband and Australia and contemporaneously acquire substantial assets as a consequence of doing so. Notwithstanding, your counsel has submitted that it would not be inappropriate in this case for you to receive a suspended sentence. The Crown, on the other hand, has submitted that a substantial period of imprisonment which must be immediately served would be the appropriate sentence in your case.

Incitement to murder is an extremely serious offence. The maximum penalty prescribed by law is life imprisonment, thus demonstrating Parliament's view of its seriousness. It is an offence often difficult of detection until after the cognate offence of murder itself has been committed. Had your intentions been carried out that would have been the situation in this case. You would then have been facing a very long period of incarceration indeed.

In fixing an appropriate sentence I am required to have regard to the purposes of sentencing set out in the Sentencing Act 1991; that is to say, punishable, deterrence, rehabilitation, denunciation of the crime committed and protection of the community. Subject to what I have already said, all of these are relevant except perhaps in this case protection of the community. Of particular concern is the need for the court to denounce the type of conduct in which you engaged and demonstrate that those who engage in it will only do so at the cost of a substantial deprivation of their liberty. Thus it must be in your case.

The sentence of the court is that you be imprisoned for seven years. It is further ordered that you serve an minimum of four and a half years before being eligible for a parole. It is declared that the period of 145 days is to be reckoned as the period of pre-sentence detention for the purposes of the Sentencing Act 1991. It is ordered that this declaration and its effect be entered in the records of the court. It is further ordered that the application by the police pursuant to s.464ZF of the Crimes Act 1958 be dismissed.

Transfer of Prisoners Act 1997

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