Regina v Samuel Noel LEVER

Regina v Samuel Noel LEVER - [2001] NSWSC 1131 - NSWSC 2001 case summary — Zoe

[11]

9 This was an horrific beating. 10 The proceedings before me were a retrial. On 30 November 1999 the offender was found guilty by the verdict of a jury, at a trial before Greg James J, of the murder of Linda Jo Lever. 11 At the trial before Greg James J, and at the trial before me, there was no issue but that the offender had inflicted this beating upon his wife. The central issue on each occasion was the partial defence of diminished responsibility provided by s 23A of the Crimes Act 1900 (as it then stood). At the first trial Dr Westmore gave evidence in support of that defence. The Crown called Dr Nielssen who did not support the defence. Subsequently, and prior to the imposition of sentence, Dr Nielssen became aware of matters concerning the offender's mental state in the months leading up to the killing, which led him to change his opinion. At the time of the sentence hearing, there was a degree of unanimity in the psychiatric evidence before his Honour. 12 His Honour sentenced the offender to a term of thirteen years imprisonment. A non-parole period of nine years was specified. This sentence, which reflected a measure of leniency taking into account the evidence as to the offender's mental state, was nonetheless a sentence imposed in respect of the offender's conviction for murder. I am called upon to sentence the offender for the lesser offence of manslaughter. 13 The trial before me was conducted solely upon the issue of the offender's mental state at the time of the killing. He raised the partial defence of diminished responsibility. Two of the psychiatrists who gave evidence at the trial, Dr Westmore and Dr Wong both supported the availability of that partial defence, but went further and expressed the opinion that the offender had the defence of mental illness available to him. In the event, the defence of mental illness was not made out. 14 I approach the matter of sentence upon the basis that the offender caused the death of the deceased by his deliberate act, which was accompanied by the requisite intent for murder, but that his mental responsibility for that act was substantially impaired by an abnormality of mind. The abnormality of mind was that the offender was suffering from a delusional disorder such that he entertained fixed beliefs, not based in reality, including that his family were being harrassed by unknown intruders, that his wife was flagrantly unfaithful to him and that she was, in some way, in league with the harassers. 15 I am not satisfied beyond reasonable doubt that, at the time of administering this beating to the deceased, it was the offender's intention thereby to kill her. I deal with him on the basis that in repeatedly beating her in the way that he did it was his intention to inflict grievous bodily harm upon her.

[12]

16 A victim impact statement prepared by Edwina and Rodney Edmed, the parents of the deceased, was received in accordance with the provisions of s 28 of the Crimes (Sentencing Procedure) Act 1999. In that statement they express their profound grief at the loss of their daughter. They observe that no parent expects to outlive their child. Linda Jo Lever was thirty-five when she died. She was part of a large family who live in the Tweed Heads community. As a young woman she was a group leader with the Youth Group of the Aboriginal Evangelical Fellowship of Australia. Religion played an important role in her life. She was a loving mother to her six children, all of whom were the product of her union with the offender. Mr and Mrs Edmed express their pain and anguish, both in that they will not see their daughter again and in that she has lost the opportunity to see her own children grow up. Poignantly, the statement is signed "Mum and Dad". The Court expresses its sympathy to the Edmed family in their loss. 17 In receiving the victim impact statement I bear in mind the observations of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76 at 88-87. I approach the reception of the statement with those observations in mind. 18 The deceased and the offender commenced living together in 1978. In the period between 1980 and 1987 or thereabouts the relationship was characterised by the offender dealing violently with the deceased from time to time. 19 A report prepared by Brian Copeland, Probation and Parole Officer, dated 3 February 2000 (which was prepared in connection with the proceedings before Greg James J) was tendered on the offender's behalf in the proceedings before me. That report sets out the offender's prior contact with the service, including the fact that he had been placed on a three year supervised recognizance in June 1979 following his conviction before the Sydney District Court for the offence of breaking, entering and stealing. In July 1980 the offender was arrested in Queensland on drug charges. In respect of these matters he was fined. In November 1981 he was convicted before the Coolangatta Magistrate's Court on a charge of assault occasioning actual bodily harm. He was fined on that occasion. The victim of that offence was the deceased.

[14]

21 In the period between December 1988 and late 1995 the offender appears to have led a settled and productive life. There is no evidence that he engaged in further acts of violence towards his wife during these years. 22 Andrew Chalk, solicitor, first met the offender in early 1989. Mr Chalk was employed by the Aboriginal Legal Service. He was working on an Aboriginal land claim in the Fingal area. By this time the offender was the co-ordinator of the Tweed Local Aboriginal Land Council. In this role the offender worked with Mr Chalk. The two had a good deal of contact. On occasions Mr Chalk stayed with the Lever family. It was apparent from Mr Chalk's evidence given at the trial that, up until 1996, his experience of the offender was of a responsible man who conducted the affairs of the Local Land Council with professionalism. Such a view receives ample support from a number of references tendered on the offender's behalf at the sentence hearing. 23 Michael Wright, solicitor, was retained by the Tweed-Byron Local Aboriginal Land Council in the early 1990s in connection with proceedings in the Land and Environment Court. In a statement dated 20 December 1999 Mr Wright comments most favourably on the offender's role in representing the interests of the Local Land Council and in liaising effectively with the lawyers retained to advance the land claim. Mr Wright, like Mr Chalk, had come to know the offender on a personal level. He, too, had visited the family home. He stated that the offender appeared to be a devoted family man and a loving and caring father to his children. Mr Wright viewed the offender as a person of great personal strength who was considered, courteous and purposeful in his dealings with others. In Mr Wright's experience the offender did not drink alcohol. 24 Senator Aden Ridgeway provided a reference, dated 22 February 2000, in support of the offender. He described the offender as a leader within his community who had fought for the recognition and fair treatment of the local Tweed Heads indigenous community. When the Senator was Executive Director of the NSW Aboriginal Land Council he had frequent occasion to speak with the offender. He was impressed with the way the offender conducted negotiations on behalf of the Aboriginal community. In Senator Ridgeway's opinion the offender is "a respected community leader, a loving father and a decent human being".

[16]

28 As at February 2000 when Mr Copeland prepared his report he observed: "The personality of the offender seems to belie the crime of which he is guilty. His reputation as a negotiator was based on his patience, courtesy and reason and these are the most obvious elements in his makeup. In prison, his behaviour is excellent and he is now acting as the Aboriginal Prison Delegate in Silverwater. He has exercised a great measure of control of his emotions and behaviour, learning in his youth to enure himself to pain and in adult life making significant changes in his behaviour and attitude. However, his capacity to control himself was exceeded in the conflict within his marital relationship. On several occasions, Mr Lever resorted to violence which had been a significant element in his early role modelling. He realises now that he should have left the marriage but wanted to hold the family together. His children visit him and appear to hold him in sympathetic affection despite the nature of the offence." 29 Captain Carter, Anglican Chaplain, Corrective Services, in a reference dated 6 December 2001, says that he has known the offender over the past two years while the latter has been at the MRRC. He reports that the officers at the Silverwater Complex speak highly of the offender's behaviour. On many occasions he has assisted staff in diffusing potentially dangerous situations involving other inmates. In Captain Carter's opinion the offender is showing remorse for his offence. Mr Copeland is of a similar opinion. 30 An affidavit sworn by Bob Carroll describes the work the offender has done as the Aboriginal delegate at the MRRC. The offender was appointed to that position within a month of his arrival at that Centre. In this role he has contact with all new Aboriginal prisoners received at the MRRC. Mr Carroll says that the offender is a hard working and helpful Aboriginal delegate. He is particularly respected for his work with young offenders and older inmates. Mr Carroll notes that the offender stands out from other delegates for his courteous behaviour towards Corrective Services officers, his willingness to listen to the concerns of inmates and his consistent and reliable handling of new inmates.

[19]

33 Mr Odgers SC, who apeared for the offender, accepted that the principles enunciated by Wood J (as he then was) in Regina v Fernando (1992) 65 A Crim R 98 have limited application in this case. He submits that the offender's unfortunate childhood, particularly, the history of serious violence to which he was subject is a relevant consideration on sentence. I accept that is so quite apart from the principles with which Wood J was concerned in Fernando. I am also invited to consider that in a prison environment Aboriginal people find themselves quite often in the position of being foreigners in their own country. I am not persuaded having regard to the offender's background, the evidence of Mr Chalk, and the contents of the references, that this is a consideration which is apt in the present case. 34 Andrew Chalk gave evidence that in January 1996 the offender inexplicably failed to attend an important meeting in Sydney relating to the Fingal land claim. He gave no notice of his inability to attend the meeting. In the light of Mr Chalk's knowledge of the offender's commitment to the land claim he considered this to be extraordinary behaviour. A further meeting was planned for 6 March 1996 in Sydney. Again, the offender failed to attend despite arrangements having been made for him to do so. By that stage Mr Chalk had become extremely concerned about the offender. He telephoned him at home to discuss the matter. After some hesitation the offender told him during the course of this telephone discussion: "I don't really know what's going on. I got people coming around the house of a night. They hang around the house and throw things on the roof and tap the walls. They are here almost every night and I can't go outside. I've got to sit up all night and keep an eye on the house." 35 The offender told Mr Chalk that the harassment was affecting the whole family. Both he and Linda were sitting up all of the night. The two of them would get some sleep during the day when the children were at school. Mr Chalk queried whether these strange happenings had anything to do with the land claims. The offender said that they did not.

[26]

48 It is appropriate, in the light of this submission, to turn to the evidence tendered at the sentence hearing concerning a further episode of violence meted out by the offender to the deceased in October 1995. On that occasion the deceased called to her parents home complaining that the offender had beaten her. She had a large bruise under her lip and bruises all over her body. Her parents arranged for her to fly to Cairns to stay with her sister. The deceased complained to her parents that the offender had forced her to have sexual relations with other men and that he had videotaped this activity. She complained that she had been forced to say that her mother was having an affair with the offender and that her father had sexually molested her when she was a child. 49 In a report dated 15 October 2001, which was tendered on a voir dire hearing during the trial, Dr Wong commented on the October 1995 violence. It is apparent that Dr Wong considered this episode to be consistent with the onset of a psychiatric disorder about one year prior to the killing. He said this: "He had been extremely violent and cruel towards the deceased since shortly after the commencement of their relationship up to 1989. The behaviour then abated or alleviated. In any case, there is no evidence of continued severe violence until October 1995 when he manifested exceptional unusual and depraving behaviours not seen even in his most violent days. At the same time, he made allegations about the deceased's infidelity which were reminiscent of those he made after the alleged killing." 50 I accept Dr Wong's opinion in this respect. I consider the evidence of the incident in October 1995 to be consistent with the onset of the offender's psychiatric difficulties. I do not see it as forming part of the same pattern of abusive behaviour which characterised the early years of the offender's relationship with the deceased. 51 In dealing with the offender's claim to be of good character I approach the matter on the basis that he grew up in a household characterised by violence. He had limited education and, in his early adult years, he was prone to minor criminal offending and to alcohol abuse. Associated with this lifestyle the offender exhibited persistent violent behaviour towards his partner. Around 1989 I accept that he underwent a marked change in behaviour associated with his religious conversion. Thereafter, until late 1995 and the onset of some psychiatric disorder, I consider that the offender demonstrated himself to be a useful and responsible member of the community. This is not a case in which it would be fair to consider that the offender's outward appearance of religious faith, his patient negotiating skills and general concern for his community were at odds with his private life. 52 I turn now to a further submission advanced by the Crown, namely that the offender's mental condition is such that he represents a danger to the community justifying consideration of the protection of the community being to the fore in the exercise of the sentencing discretion; Veen (No. 2) v The Queen (1987/88) 164 CLR 465. 53 Dr Wong prepared a report, dated 17 October 2001, addressing the issue of the offender's future dangerousness. In that report Dr Wong expresses the opinion that there is no evidence to suggest that the delusional disorder (of which the offender was suffering at the time of the killing) has abated. It is a difficult disorder to treat. People suffering from it are able to function perfectly normally outside the realm of their delusions. This feature makes it difficult to recognise the presence of psychiatric abnormalities in the individual. In the course of his oral evidence Dr Wong maintained his view that the offender is still suffering from delusional disorder. In this respect he was at odds with the opinions expressed both by Dr Nielssen and Dr Davies.

[27]

54 I note that Dr Wong was also at odds with the opinion expressed by Mr Dibona, psychologist. Mr Dibona was not inclined to the view that any of the history given by the offender in their frequent counselling sessions together was based on delusional beliefs. I reject Mr Dibona's opinion in this respect. The significance of Mr Dibona's report is that it shows that the offender has, in recent times, maintained his account of the deceased's flagrant sexual infidelity, together with his belief that on the morning of her death she told him that people were waiting in the backyard to kill him and that he confronted this group who then scattered into the bushes. There is more in similar vein in Mr Dibona's report. In Dr Wong's opinion the fact that the offender continues to believe in the delusions (which characterised his thinking at the time of the killing) is evidence that he continues to suffer from delusional disorder. By contrast, Dr Davies considered that the offender was not currently suffering any form of mental illness, but that he retained memories of the content of his thinking at the time of the killing. Dr Nielssen was somewhat closer to Dr Davies than Dr Wong in this respect. 55 Dr Davies interviewed the offender on 7 November and 4 December 2001. On review the offender presented in a more direct and co-operative manner and did not demonstrate any gross psychiatric signs. This was in contrast to his presentation in December 1999 and January 2000. Dr Davies, in a report dated 4 December 2001, observed: "When I first saw Mr Lever he continued to demonstrate low grade symptoms suggestive of psychosis but in the last eighteen months these have improved and he does not have any current symptoms of mental illness. From the point of view of risk on return to the community I note that there were no problems during the two years that Mr Lever was on bail and as his recent violent episodes were contained within an intimate relationship I do not regard his release as likely to pose a significant threat to the community." 56 In oral evidence Dr Davies stressed the usefulness in this case of the offender being subject to a lengthy period of supervision. In evidence Dr Davies was asked to express an opinion about whether the offender's delusional disorder might become manifest again in the context of a future relationship. He responded in these terms: "It depends what you define as 'significant'. What it means is that you should then put in place strategies to monitor his psychiatric condition long-term. But the problem with risks in this sense, in a risk management situation is that even though he had two or three times the community risk of recurrence, the overall level of risk still remains relatively small. So it depends actually what you mean by 'significant'." 57 Dr Nielssen, in an updated report addressed to the issue of future dangerousness, noted: "Mr Lever's previous violence has largely been confined to his marriage, which would not predict a risk to the community at large, but may lead to domestic violence in another relationship." 58 Elsewhere in his report Dr Nielssen observed: "The history of steady employment in the years before the offence, and the support he has received from his family suggests that he will be able to make a reasonable adjustment to life in the community after his release". 59 In the course of his oral evidence Dr Wong was asked what features of the delusional disorder might be expected to be exhibited in the offender's behaviour in the future. He said this: "Now when Linda was still alive, and she was one of the main objects of the delusional belief, and Mr Lever acted accordingly, in response to his delusions, when she was no longer around, obviously the object of his delusions are no longer there and we would not expect the person to respond to his delusions in any tangible way and the characteristic of this disorder is that the person is able to function quite normally outside of the domains of the influence of his delusions. Well, in that case, he would be functioning quite normally." 60 Dr Wong went on to express the opinion that it was possible that a person suffering from delusional disorder may come to have the scope of the delusions stretch so as to encompass more people within the delusional belief system. He was not able to express the likelihood of this occuring in the present case. Ultimately, he expressed the opinion there was a significant possibility of the offender's delusional belief system spreading. 61 There is some divergence in the views of the psychiatrists who have interviewed the offender over the years since the commission of the subject offence. Neither Dr Davies or Dr Nielssen identifies the offender as posing a significant risk to the community at large upon his ultimate release. The risk, as Dr Wong perceives it, is that the offender may in the future come to include persons, other than the deceased, within the framework of his delusional belief system.

[29]

64 This is an objectively serious case of manslaughter. The sustained and brutal nature of the assault upon the deceased requires that it be so viewed. Mr Odgers submitted that the evidence of the offender's mental state was such as to make it a somewhat sterile exercise to seek to isolate the objective gravity of the offence. In his submission the offender beat his wife to death because his thinking was disordered and his capacity to control his behaviour was substantially impaired. That is so. Were it not the case he would be guilty of murder. This is not to say that he bears no responsibility for his acts. 65 I note the observations of Gleeson CJ in Regina v Blacklidge (unreported) NSWCCA, 30 November 1995, (in a judgment with which Grove and Ireland JJ agreed): "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402). When the basis of a finding of manslaughter is diminished responsibility, pursuant to s 23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act (R v Low (1991) 57 A Crim R 8). 66 The Crown invites me to consider that while the offender's impairment was substantial it was not such as to cause him to have lost his capacity for control entirely. While he may have been deluded in believing that his wife was unfaithful to him (and, in some way, in league with those who were harassing him) his actions in beating her were deliberate and carried with them a punitive quality far in excess of any appropriate reaction assuming those beliefs to have been based in reality. His actions were, in the Crown's submission, excessive and cruel.

[30]

67 The Crown also submits that I would assess the extent of the offender's impairment by looking to circumstances such as that shortly after the killing he behaved in an appropriate fashion; attempting resuscitation and arranging for an ambulance to be summonsed. He was less than candid in his interview with the police such that I would infer he knew the wrongness of his conduct and sought to minimise it. He apologised to his son for what he had done to his mother. 68 I consider that there is force to these submissions. Equally, I bear in mind Dr Davies evidence given at the sentence hearing: "You're assuming that the sole manifestation of his illness is his false belief. Now in fact if you have a psychotic illness as well as those false beliefs, there are a number of distortions of thinking, of feeling and of cognition. So you're looking at a total illness state. You are not looking at false beliefs in a normal person, you're looking at false beliefs in somebody who is suffering from illness and who is an abnormal person and one of the things that has happened - when I first saw him, he was clearly manifesting other signs of illness. He's now got better from those (T 10)." 69 Dr Nielssen, who agreed with the diagnosis of delusional disorder, gave evidence at the trial that there was some effect on the offender's reasoning capacity but, in his view, not to the degree required to not know that what he was doing was wrong. Mr Odgers took this issue up with Dr Nielssen at the sentence hearing: "Q. Would you therefore accept that at the time that he assaulted his wife, and I'm talking about the one that led to her death, that his disorder would have been a factor in that assault in terms of the existence of the delusional beliefs, the existence of some state of depression and some impaired capacity to exercise self-control? A. Yes, that's the mental illness component and then, of course, it's collided with pre-existing personality traits and the circumstances of their relationship (T 30)." 70 The offender did not give evidence either at the trial or at the sentence hearing. He did not seek to avail himself of the defence of mental illness. It was his case that he understood that his conduct was wrongful. On his behalf attention was drawn to the evidence that shortly before the fatal assault he had packed his bags intending to leave home because he feared that he might assault his wife. 71 In assessing the appropriate penalty for this offence I bear in mind that the offender took the life of his wife by a series of deliberate acts carried out over a period of time with the intention thereby of doing grievous bodily harm to her. He was very angry with her at the time.

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