REGINA v. LEVER [2000] NSWSC 953

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 30 November 1999 the offender, Samuel Noel Lever, was found guilty by the verdict of a jury of the crime of murder. He had, on the night of 15 November 1996, at Fingal in the State of New South Wales, murdered his life partner, Linda Jo Lever. 2 Objectively, the crime was an appalling one. The offender beat his wife to death using a baton and a strap. He inflicted upwards of 200 blows. He may have kicked his wife, or kneed her, in this ferocious bout of abuse. Following this attack, however, he sought to care for his wife. He summoned the ambulance. When arrested by the police, almost irrationally and incoherently, he sought to explain what he had done and what had occurred. I am entirely satisfied that at that time he was, to some considerable degree, irrational, grieving and contrite. 3 By way of background, it appears, in particular from the observations of Mr. Chalk, who had known the offender professionally and socially, that the offender's conduct had, for months, progressively changed from normal and that he had become, using the term in its lay sense, increasingly paranoid. In particular, the focus of his paranoia was his wife and, as it has been put, on her involvement, in some manner, with some harassment of his home and his family, which he believed he was being subjected to, which harassment may have been based on what was actually occurring in some more or less degree, or have been entirely within his mind, which was, at the time of the killing, I find, gravely affected, at least to the extent of his suffering from the disturbance to which I have referred and some considerable degree of depression. 4 I shall return to the question of the verdict and its effect, and the findings that I might make in law as to the state of the accused's mind at the time of the killing, later in these reasons. 5 There is evidence before me that during the relationship of the offender with the deceased he had subjected her to serious violence on occasions. Indeed, there were occasions on which he beat her very severely, on at least one occasion resulting in her hospitalisation suffering from a serious injury. 6 There was also evidence to show that he believed, on occasions, apparently without any rational foundation and sometimes in beliefs attended by bizarre overtones, that she had been sexually unfaithful, or was being sexually unfaithful, to him. 7 Whatever be the surrounding circumstances, generally, on the night in question, no evidence could be found to support, objectively, a belief that the home was being harassed, or that she was being unfaithful to him. Indeed, over the years, notwithstanding his treatment of her, she had apparently remained a loving wife and mother, with concern for her family, and he a loving husband and father. Indeed, there is evidence before me now, which I accept, of his deep concern for his children, and there was evidence from the ERISP to the police of his deep concern for her shortly after her death. 8 In that context it falls to me to sentence the prisoner for the most serious crime in the calendar: the taking not only of a human life but the taking of the life of his spouse, taken in such a brutal way. The verdict of the jury established that the prisoner at the least intended, by the beating he inflicted, to occasion grievous bodily harm to the deceased. I am unable to be satisfied to the requisite standard that he intended to kill her, but the sheer number of blows and the sheer extent of the beating is such as to satisfy me that he must have realised that he, by his actions, would occasion her serious bodily injury had he been reasoning rationally and normally at the time of the beating. 9 There were, in substance, only two issues at the trial. One related to the cause of death. A question arose as to whether amphetamines might have played some role. The jury was not satisfied that there was such a role, if any, as might have displaced the effect of the beating in causing her death. I am not satisfied that there was any role played in the occasioning of her death by such drugs as she might have taken leading to the forensic pathologist's findings that were ventilated at the trial. But, even if there had been some such role, it would not, in any way, displace, either factually or in culpability, the effect of the beating he administered. 10 The Crown has submitted that the objective seriousness of the matter was great, and I have been referred to rib fractures and soft tissue injuries to the deceased, although it is conceded that it is not possible to ascertain what precisely caused the fractures. It is submitted by the Crown, and I accept, that I could not be satisfied that the prisoner himself was affected by drugs or alcohol at the time such as, in any way, to mitigate this culpability, and that I could not accept that what occurred on this occasion, as far as the infliction of violence was concerned, was an isolated matter. 11 On the other hand, when I come to the other great issue at the trial, that is the mental condition of the offender, I conclude, in the light of the psychiatric evidence before the jury at the trial from Dr. Westmore and Dr. Nielssen, from the subsequent psychiatric evidence given orally by Dr. Nielssen, and by the numerous reports provided by the Crown and the defence from Dr. Nielssen and Dr. Westmore, that I cannot regard that episode of violence in which the offender beat his wife to this extent as otherwise than atypical. This episode I find, even having regard to the previous violent history, involved conduct of such an extent as to be so aberrant as to accord with what Dr. Nielssen said in his evidence on sentence before me. 12 I accept the psychiatric diagnoses from both Dr. Nielssen and Dr. Westmore; that is, that the prisoner was suffering at the time of the infliction of these appalling injuries upon his wife from a serious mental condition, and I accept what Dr. Nielssen has said in evidence most recently today that there may also have been a transient psychotic episode overlying a more general chronic condition. But, whilst I accept those matters of fact, on the evidence now before me they are of limited significance to the course I must now take for the reasons I will now give. 13 At trial the defence advanced the defence of diminished responsibility under the law then applicable, and that defence was rejected by the jury. In the light of the decision of the Court of Criminal Appeal in Regina v. Isaacs (1997) 41 NSWLR 374, I am entitled to form my own view of the facts on the evidence at trial and on sentence before me, provided that that view is consistent with the jury's verdict. Although it is not open to me to enquire of the jury as to the basis of its verdict, where, as here, the only, or in this case the only, relevant issue advanced has been rejected by the jury, it is not open to me to sentence on a basis inconsistent with that verdict and in acceptance of the matters the jury has rejected. 14 Consequently, the accused must be sentenced on the basis that he does not have available to him those matters of fact which would have founded a defence of diminished responsibility, that defence having been rejected by the jury. Nor might the accused be sentenced on the basis that he was psychotic at the time, even though I accept the evidence of the psychiatrists now given that he possibly was, or mentally ill within the meaning of the mental health legislation. 15 How does this problem come about? At the trial Dr. Westmore gave evidence supporting a defence of diminished responsibility. Dr. Nielssen, called for the Crown and appraised of such circumstances with which he had been provided by the Crown, expressed the view that he could not support the existence of those matters which might give rise to the defence. Subsequently, Dr. Nielssen became apprised of factual matters concerning the accused's belief in harassments and his deteriorating conduct, to which I have referred, following a conversation with Mr. Chalk. The surrounding circumstances to that matter are set out in the accounts of Mr. Chalk in his affidavits and in material supplied on sentence. 16 Dr. Nielssen thereafter took a different view to the view that he had taken at the trial. Following some questions by me concerning the terminology used at the trial, Dr. Nielssen provided additional reports and has given evidence on a number of occasions. It has now become entirely apparent that there is a unanimity of conclusion supporting the diagnoses I have referred to between the psychiatrists and that that unanimity of conclusion is, at least to a certain extent, supported by the view of Dr. Davies on the offender's admission to gaol. Thus, the Crown evidence at trial and on sentence was entirely contrary on this. 17 It was in consequence of what I have been told was this unique circumstance that the sentencing of this matter was deferred, and has been deferred, for almost a year, to allow the Crown and the defence to make further enquiry as to what course should properly be taken. The last step in that process was taken today, when I drew to the attention of all parties the provisions of s.474D and s.474E of the Crimes Act 1900. Whilst the Crown was prepared to concede that on the material at the time of the acts causing death the offender might well have had such abnormality of mind as the defence of diminished responsibility applied to, nonetheless the Crown submitted, and it was accepted by Mr. Odgers, SC. for the accused, that I had to deal with the matter by way of sentence in accordance with the verdict of the jury. Both counsel opposed my taking any action under those provisions, or otherwise, and it remains for the Director and the offender to take such course as they may be advised on the verdict. 18 For my part, I am of the view that I am placed in a situation on sentence of the utmost artificiality. Nonetheless, I will proceed, as best I can, to undertake the required task. 19 I have regard to what the Crown has said in drawing my attention to what Allen, J. had said in Regina v. Cheung (CCA, unreported 11 December 1995) concerning the arrogance of those men who feel entitled to impose their will upon their partners by violence, justifying that course by a claim of some grand passion, but that is not this case. I am entitled, in having regard to the offender's mental condition, to reject the condition his Honour there refers to as being that applicable here. I am entitled, too, to have regard to the fact that the condition now established must be given some such significance as would mitigate the general deterrence and personal deterrence that might otherwise be applicable, as I understand counsels' submissions. It is not necessary for me to set out the lengthy list of authorities on these questions. 20 On the other hand, it is necessary to denounce the appalling conduct and to emphasise that value the law puts on human life in the sentence, particularly because I am bound by the verdict not to consider the culpability as reduced, as it might have been were manslaughter found, or the defence upheld. 21 In this regard the Crown has drawn my attention, in relation to the various sentences that might be imposed, to a lengthy discussion of cases in a bound volume provided to me. None of them have applicability to this situation, though they do afford some limited guide. 22 I gain some assistance from the course taken by Dunford, J. in Regina v. De Souza (unreported 10 November 1995), where the defence of diminished responsibility had been rejected by a jury but nonetheless the mental condition caused by the influences acting upon the accused could be taken into account by his Honour to an extent. 23 Having made these general remarks, I should turn to the particular circumstances of the offender. Although he has a prior criminal record commencing in 1979, when he received a recognisance for the offence of break, enter and steal, and had minor matters involving cannabis and an assault in 1981, he has had, since then, some driving, alcohol and minor summary matters but, otherwise, according to the evidence, has become a deeply religious person, who has served on his local land council, in the interests of the community generally and the local aboriginal community, notwithstanding personal circumstances in which he has apparently been under some degree of fear, and has acted entirely meritoriously within his community, except in respect of the episodes of violence against his wife. All of the evidence persuades me that he has, except in that respect, been a man of entirely estimable character. 24 In the chronology presented to me, Exhibit B, there are set out various of the matters of violence against his wife. They commence in 1980 with a vicious assault. In 1981 he was dealt with for a severe beating, which produced the offence in the Coolangatta Magistrate's Court to which I have referred. He punched his wife on her 21st birthday. He had punched her again during 1985 and 1986 on various occasions. In 1987 it seems that, in a particularly violent altercation, he bashed her with a belt with a belt buckle in a prolonged attack, leading to her being taken to a local hospital. She was quite severely injured. In 1995 she complained that he was asserting that she was having sex with other men, that his conduct toward her seemed bizarrely to be directed to forcing her to do that, and she was subjected again to a severe beating, again, she was attacked in November 1996, when she apparently lost two teeth. 25 He received the benefit of a recognisance in 1979 and, after reporting to the Probation and Parole Service for some years, was charged with the assault to which I have referred. A pre-sentence report had been prepared. That service thus had had, by the time it prepared the report for this court which has been tendered in evidence marked Exhibit C, some acquaintanceship with the offender and importantly, the officers of the service were aware of his public life subsequent to those occasions on which he had formerly come under the supervision of the service. 26 That report valuably points out that when he performed his community service in 1989, and subsequently, following a driving charge, he had become involved in church activities, married his wife and settled down with his family, putting away the prior period of alcohol abuse and domestic upheaval. That report sets out that the offender, who was born on 1 April 1960, came from a family where the father was a violent, heavy drinker, who abused, physically, the offender. That account shows instances of almost sadistic violence, as it was described regularly, used against the offender when he was a child. 27 He and his wife first met at primary school and lived together from when he was about the age of 20. Their first child was born about a year later. The report categorises their relationship as, initially, one of conflict and violence from the outset, with some degree of drinking to excess and illegal drugs. Two of the children died in appalling circumstances, putting stress upon both partners to the relationship, and to the relationship. 28 His account, given to the Probation and Parole Service officer after this offence, referred to a belief then of his wife's infidelity for many years and his involvement with amphetamines. He asserted then that she had told him earlier that she had been sexually abused when young. 29 The children are now in care and, despite his closeness to them, it is apparent that he is going to have little contact with them for many years. 30 His education concluded at 15 but, after his conversion, he has spent nine years as the coordinator of the local land council, chairman of the local aboriginal housing cooperative, and the material before me, in support of what is said in the Probation and Parole Service report, establishes, clearly, the value he has been to the local community. 31 In his public life this man was a negotiator who was able to use patience, courtesy and reason. In prison his behaviour has been said to have been excellent. He is the aboriginal prison delegate. He is the person with responsibility to seek to avoid self harm amongst aboriginal prisoners in gaol. He is said to be a person who would respond to counselling and assistance. 32 One can only say that, in the context that one cannot know precisely what psychological mechanisms or psychiatric conditions were operating, and what treatment this man might have, there is much to hope for by way of rehabilitation. 33 I am unable to conclude that the beating was itself premeditated in the usual sense this term is used. I am able to conclude that the violent conduct escalated. I am unable to conclude that this beating was out of accord with the beatings that had previously occurred, except as to its result, its severity and except by reason of that distinguishing feature of the offender's state of mind which, as I have previously said, made this episode in that respect atypical. I am certainly unable to conclude, and reject the proposition, that the offender is to be regarded as generally dangerous in that, whatever be the psychological or psychiatric mechanisms or illnesses operating, it is plain that they focused entirely upon that woman with whom he appears to have been concerned, the deceased, his wife. 34 In all the circumstances it is not necessary for me to analyse to any detailed extent the evidence now on sentence of Dr. Nielssen in consequence of the view to which he has now come. I do, however, observe that the accounts given, in particular by Mr. Chalk, would tend to support the proposition that, to some extent at least, the harassment the prisoner believed he was being subjected to might have some foundation in fact. But it would seem highly likely that there was as well a belief of a paranoid kind, since such harassment as he might actually have been subjected to seems to have led to a belief in harassment and in its cause which may well have been entirely delusional, or at least substantially delusional. Dr. Nielssen, having come to the conclusion that he has, however, I need go no further. 35 The observations of Mr. Chalk of the offender's deteriorating conduct have been entirely supported by those observations of Reginald John Lever, his older brother, which are referred to in his statement, Exhibit 6. Those observations tend to support the proposition that there was some degree of harassment in fact. 36 The evidence provided to me from Bob Carroll by affidavit of 14 August 2000 supports the conscientious devotion the prisoner had shown in his public life to the welfare of the Aboriginal community, and to the work he has done in the gaol, and to the role that he is occupying there. It is not necessary for me to detail, beyond referring to the evidence provided to me by Mr. Stephen Wright, Mr. Michael Wright, Senator Ridgeway, Mr. Rooney and Ms. Lever concerning these matters and which have been provided to me in a folder. 37 It has been submitted on the offender's behalf that the extraordinary contrast between his public persona and his private aberrance suggests that the offence must have been committed out of some disordered mind. Further, that the very facts of the offence itself and his conduct, when spoken to by the police, suggest that aberrance such that it is not appropriate for there to be the usual components of personal and general deterrence. I accept those submissions to the extent I have already referred to but remain persuaded that it is necessary, particularly in the light of the verdict of the jury, to pass a sentence which the community can regard as sufficient to meet the objective seriousness of the taking of a human life in such an appalling way. 38 I have concluded that there are, here, as was conceded by the Crown, special circumstances such that it is appropriate that there be a longer than normal non-parole period and a shorter than normal non-parole period. These special circumstances include the prisoner's prior circumstances, his mental condition, his prospects for rehabilitation and the length of the sentence that, in my view, would have to be passed. I have regard to the offender's prior deprived circumstances, and particularly in the context of his Aboriginality. 39 I note, too, that a plea of guilty to manslaughter by reason of diminished responsibility was offered to the Crown shortly after the offender was charged, but was rejected, although it may well be, on the evidence as things now stand, that that plea, had there been full enquiry at the time, might well have been accepted. The Crown accepts that the offender should be dealt with as though an early plea of that kind was offered. 40 Having regard to those matters and to the fact that, prior to his release on bail, the offender has spent some 251 days in custody, having been in custody refused bail. This is notoriously a period of custody operating in a most onerous fashion upon a prisoner. I will, therefore, reduce the sentence that I would otherwise impose, both the non-parole period and the total sentence, in order to reflect the general effect of those days in gaol and the early offer of a plea. 41 He has been in custody continuously since the verdict of the jury on 30 November 1999. The sentence will date, then, from that day. The offender will be sentenced, having regard to that reduction that I have referred to, to a total sentence of 13 years imprisonment, with a non-parole term of nine years, the expiry date of which will be 29 November 2008. The first opportunity for release will therefore be 29 November 2008. There will be a parole period of four years to date from 30 November 2008, and the non-parole period will expire on 29 November 2008. 42 I recommend that the offender be afforded such assistance and treatment for such psychiatric or psychological condition as he may have as might be available to him.

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