REGINA v STEPHENS [1999] NSWCCA 80 | Case summary

1 SHELLER JA: On 22 June 1987 the appellant, Patrick James Stephens, pleaded guilty to a charge that on 18 December 1986 he murdered his wife, Sandiya Stephens, at Dungay near Murwillumbah. On 22 December 1987 McInerney J sentenced him to penal servitude for life to date from 4 January 1987, from which date the appellant had been continuously in custody. 2 In 1997 the appellant applied under s13A (2) of the Sentencing Act 1989 for determination of a minimum term and an additional term for the sentence imposed. McInerney J heard and, on 27 November 1997, granted the application which the Crown did not oppose. His Honour imposed a total sentence of penal servitude for twenty-two years comprising a minimum term of sixteen years to commence on 4 January 1987 and an additional term of six years, making the appellant eligible for parole on 4 January 2003. On 26 August 1998 the appellant applied for leave to appeal out of time on the ground that the re-determined sentence was excessive. Apart from delay the appellant had a right of appeal pursuant to s13A (12). 3 The grounds of appeal were stated in the written submissions on behalf of the appellant to be: 1. That his Honour erred by finding that the appellant was unable to show any contrition for his act. 2. His Honour gave insufficient weight to the plea of guilty. 3. His Honour erred by failing to give sufficient weight to the appellant's rehabilitation. 4. The sentence was manifestly excessive. 4 Section 13A (9) provides that the Supreme Court, in exercising its functions under the section, is to have regard to, inter alia, "(b) Any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court, and (c) The need to preserve the safety of the community, and (d) The age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application), and may have regard to any other relevant matter." 5 The appellant married the deceased, a Malaysian citizen, in Malaysia on 13 June 1980. After the marriage they lived together on his parents' farm at Upper Dungay. The appellant worked with the Tweed Shire Council as a crane operator. His parents lived nearby but were often away. The deceased lived a lonely life on the farm. 6 In April 1985 the appellant purchased a 250 gram bottle of cyanide from a chemist in Lismore for the ostensible purpose of poisoning dingoes. On 18 December 1986 there was still cyanide in the bottle which was kept in a shed on the property. In the evening on 18 December 1986 the appellant took an Orthoxicol capsule, unscrewed it and at least filled one half of the ampoule with cyanide taken from the bottle He used a plastic spoon to transfer the cyanide from the bottle into the ampoule. As there was some cyanide left on the spoon, he rinsed the spoon in a glass of water. He said that he then gave the capsule and the glass of water containing the residue of cyanide to the deceased because she was complaining of a headache. 7 The appellant then left his wife to die and callously set about preparing dinner. Not unnaturally half an hour later he discovered his wife was dead. The appellant wrapped the deceased in a sheet and carried her out to the lawn. Shortly afterwards he buried her in the back yard adding lime from a bag of lime used for garden purposes before filling in the grave. 8 The appellant recounted his first version of what happened on 18 December to his sister the next day. He told her the deceased had died suddenly in her sleep the previous night. He said he had gone to give her something to eat but she would not wake up. He said he was taking her to a mosque at Woolgoolga. 9 A number of people made statements that the appellant showed no emotion when commenting about his wife's death. 10 When that evening his sister asked him why he did not tell anyone about the deceased's death he said "I just couldn't handle people yesterday." He said he had not thought to ring triple 0. He said an autopsy had shown the deceased had died from natural causes. He said, "She had the flu and I gave her an Orthoxicol tablet". 11 The appellant adhered to this story when speaking to his parents and friends. He told his father he had sent an international telegram to the deceased's parents. He did not telephone because it was necessary, so he said, to book a month beforehand. 12 In fact, according to the statement of facts on 22 December 1986 (McInerney J said it was 3 January 1987), the appellant wrote to the deceased's parents announcing her death. In his reasons for determination McInerney J said: "He informed them that the deceased had been sick for some months and that the doctor could not do anything more for her. He deliberately gave the impression in that letter that he was a loving husband who had done everything he could for his sick wife. He wrote further that when he knew she had died it was the most terrible feeling he had ever had. He wrote that the doctor said: 'To put it simply, she went to sleep and switched off by turning out the lights'. He said he had prepared her in her wedding sari and took her to a Buddhist temple at Woolgoolga. He said his wife would want him to pick up the pieces and carry on with a new life. He concluded in the letter, 'You will be feeling very hurt but try to remember nobody knows better than you how you feel right now'. The hypocrisy of these actions needs no elaboration." 13 Through a friend in Australia, the deceased's parents initiated inquiries and a police investigation resulted. On 4 January 1987 the appellant first spoke to the police. At first he adhered to his story. He said he had taken the deceased to see a Dr Beatty who looked at her and said that she had died of natural causes and that he had rung the undertaker at Tweed Heads and arranged for the body to be taken to the undertaker. McInerney J observed that this was a hopeless version of events. 14 The appellant then changed his story. He said the deceased had complained her head was hurting. He examined her head and felt a lump but could not see any bleeding. He gave her an Orthoxicol tablet and prepared the evening meal. When he asked her to partake he noticed she was unconscious and cold. He then took her to the hospital where she was seen by a doctor who said she had died of natural causes. He said he could not understand why there were no records of this visit. He told police he had gone home and found the deceased's wedding dress and with the permission of the nurse dressed the body in the dress. 15 On 4 January 1987 the appellant was seen in a motor vehicle with a young woman. Asked about their relationship he said he had only known her for a couple of weeks and they were only friends. When confronted by the police with what the young woman had told them he said he had known her for longer than two weeks but denied he was having an affair with her. In fact, sexual intercourse had taken place on four occasions, the last time being 28 December 1986, ten days after the deceased's death. Eventually, the appellant admitted that, because he realised the young woman would not go out with him if she knew he was married, he had told her his wife had died two years before. 16 In his reasons for re-determination, McInerney J said: "When I sentenced the [appellant] I was satisfied that he had not admitted to the police that he was having a serious affair with the young lady in question; that he had lied to her about the deceased being dead; that the affair had become fairly serious; that he had had sexual relations with her; that he was in the habit of visiting her almost daily, and indeed spent weekends with her family; that he had led her to believe that he wanted to marry her; and that he in fact visited her on the night of his wife's death and had dinner with her. She said she did not notice anything different about his demeanour that night. The [appellant] continued to see the young lady daily over the Christmas period with the exception of Christmas Day. He visited her at her parents' home on Boxing Day and took her back to his home on 2 January 1987. I stated in my remarks on sentence: 'It is obvious without going into it [in] any further detail that he was in love with her and he knew if she became aware of his wife being alive she would have ceased the affair. I am also satisfied that he attempted to downgrade his relationship with her when spoken to by the police because he fully realised the danger of revealing such a relationship on the motive of the killing. When it became obvious later that day that the police were not accepting his version of events, he then changed his story again, stating he had panicked and buried her in a hole at the back of the house, believing he would be blamed for letting her die. Why he threw that lime in, he did not know, but later on he admitted that it would assist in the decomposition of the body. He intimated that they had a normal marriage, a statement that he later vigorously denied and he admitted he did not find her wedding dress'." 17 This last version was the appellant's third version of events. In a record of interview on 5 January 1987, he gave a detailed description of what had happened. He said the deceased was cold when he first noticed her. He admitted he had sexual intimacy with the young woman and wanted her to think about a serious relationship. The police had found the cyanide bottle in the tool shed. The appellant said he bought the Orthoxicol on 12 December 1986 because he had had the flu. Further, he admitted that a few days before his wife died he went to the box where the cyanide was stored, removed it, unscrewed the lid and tightened it again. McInerney J regarded this admission as very significant and concluded that the appellant looked at the cyanide because he had in mind to poison his wife. 18 A second record of interview was made on 7 January 1987. The appellant agreed he had told the police a pack of lies and said he wanted to tell the truth. The deceased had complained of a headache. The appellant thought it would be a good time to poison her. He changed the contents of the capsule in the shed with the spoon and took it back inside and gave the deceased the capsule and glass of water. Asked why he said: "I had to get her out of the road. At that time I didn't know what to do because I had somebody else with whom I was very much in love." He had been thinking about doing something to the deceased two to three days before, but not until the occasion when the deceased complained of a headache had he made up his mind to poison her. McInerney J had no doubt that the appellant was well aware of the extremely dangerous qualities of cyanide. 19 At the hearing on sentence on 23 June 1987 at Lismore the appellant gave a fifth version of events. He said he did not know how strong the cyanide was. He tried to suggest he did not believe it was a deadly poison because he believed by the time he administered it, it would have deteriorated over time. McInerney J described this evidence as nonsense as was most of the evidence the appellant gave. The appellant said he believed the deceased had a knife hidden in the deep freeze and was going to attack him. He denied he intended to kill his wife. He made, what McInerney J regarded as a hypocritical statement, "If she was sick I would care for her and she would be more dependent on me". A forty page statement written by the appellant was tendered. McInerney J described it as a self-serving document wherein the appellant tried to put the blame on the deceased for the problems in their marriage. He said he wanted children but that the deceased did not. However, the lay evidence called was to the effect that the deceased was keen to have children and was having medical treatment to overcome a problem. The appellant was critical of the deceased's attitude towards him. He said she wanted a divorce, disliked him and had attacked him with a knife and that her parents were avaricious. The lay evidence was against his assertions. McInerney J was not prepared to accept anything he said unless his evidence was corroborated. His Honour observed that the appellant's attempts to blame the deceased's attitude towards him did him no credit at all. 20 His Honour had no doubt the appellant gave the deceased poison intending to kill her. His Honour said: "When I sentenced the [appellant], I concluded that the motivation for poisoning his wife was to get her out of the road so that he could continue his relationship with the young lady. He pleaded guilty to murder on the basis of intent to cause grievous bodily harm or acting with reckless indifference. The Crown case was that he administered the poison with intent to kill. I have no doubt that the Crown's contention was correct. I am satisfied that he gave the deceased the poison intending to kill her. The facts of this case are horrible. There is nothing in the subjective features to mitigate the serious objective circumstances of this offence. The objective criminality is high. The main factors to be taken into account in sentencing are the protection of society, personal and public deterrence, and retribution. Those matters loom more importantly in determining an appropriate sentence than rehabilitation which of course is a matter to be taken into account." 21 There could be no doubt, as McInerney J observed, that the crime required severe punishment. 22 McInerney J then dealt with the subjective features of the case. The appellant had pleaded guilty to murder. In McInerney J's view, his plea of guilty was no evidence of his contrition but rather a realisation of the inevitable. His Honour said "He is to be given no credit for his plea of guilty on the question of contrition." However, the fact that the appellant saved the Crown the expense of a trial was a matter to be factored into the sentence though in the circumstances such factor was worthy only of minimal consideration. 23 A psychologist, Mr W John Taylor, interviewed the appellant before he was sentenced and in a report of 5 August 1987 stated that the appellant had a good deal of remorse for killing his wife. At the time McInerney J rejected that opinion, it being contrary to the facts as he understood them and he saw no reason to change his opinion. 24 The appellant was born on 13 February 1957 and passed the School Certificate. He had a Senior First Aid Certificate and numerous licences for crane operation, joinery and rigging. These qualifications suggested he was a reasonably intelligent person. He had no prior convictions. Whilst in custody he had the following classifications: A2 - 10 February 1988; B - 3 June 1992; and C1 - 25 July 1994. On 2 February 1988, Mr Capes, a Probation and Parole Officer, reassessed the appellant as a shy, socially withdrawn man who killed the woman he loved "after suffering long term emotional pain and inner conflict resulting from his inability to bridge their increasing emotional distance, and his inability to deal with his intensive regressed anger at his wife's dominance and belligerence." Mr Capes recorded that the appellant was "guilt-ridden" but was open to counselling. He noted that he had renewed his interest in Christianity. McInerney J said: "I cannot accept that assessment for obvious reasons. This is another example of a professional being hoodwinked by accepting the bland assertions of the person he is interviewing. It is trite to say that, of course, the only other person who could throw light on the matrimonial relationship is dead." 25 The appellant has had an excellent prison record and has been shown to be industrious and willing to learn. He has been interested in art and has produced excellent art work. He has done agricultural courses and achieved excellent results in a TAFE Computers A First Course. In an Education Statement, dated 15 April 1994, it was noted that the appellant wished to develop skills in computer graphics related to signwriting. He attended numeracy classes to further his skills and knowledge in mathematics and classes in Spanish studies. He completed a "tutor training" programme wherein he gained the skills to help other inmates to read and write. He has done considerable maintenance work in the Special Care Unit and has worked in the Maintenance Section as a leading hand carpenter. His carpentry work has been extensive and valuable. 26 Mr Capes noted on 30 September 1988 that the appellant had built up a good rapport with regular visitors from prison fellowship and that he attended weekly Bible study courses with the Prison Chaplain. Mr Capes said the appellant was "beginning to cope with his guilt - not overwhelmed by it as when last interviewed in February 1988". 27 A Probation and Parole Officer, A Grapsas, noted on 9 October 1989 that the appellant continued to have difficulty coming to terms with his guilt. He had continued to receive visitors from the fellowship group. 28 The appellant has established a significant relationship with a lady from the prison fellowship who began writing to him. She has two children from a previous relationship who are fond of the appellant. The situation is that they plan to marry some time after the appellant is released. He has informed her that he intends to involve himself in Church activities when he is released. She has said the appellant will receive practical and emotional support from the congregation of her Church. The appellant is now taking a Christian education course. 29 The appellant is a model prisoner, polite, conscientious and hard-working and only requires minimal supervision. He has worked without supervision in the Maintenance Shop and in high security areas such as the gate house and the Governor's office. He has also been given access to, and has worked without supervision in, restricted areas such as the Special Care, Lifestyles and Crisis Support Units. 30 In 1994 he re-established ties and reconciled with his sister and his family, with whom he had not had contact since 1987. 31 McInerney J said that it was to the appellant's credit that all officers who had reported on him had universally referred to him as a model prisoner. "It appears, however, that the [appellant] is unable to show any contrition for his terrible act whereby he destroyed the life of his wife." 32 On the application for re-determination a clinical psychologist, Dr Walker, who had interviewed the appellant on three occasions and administered tests and prepared a report dated 18 October 1997, gave evidence. In her report she said: "Patrick Stephens has made very significant progress in prison, from a withdrawn, socially inept, immature and tormented young man to a calm and well-adjusted person studying Theology. Therapy received in prison has clearly been very effective, and Patrick's enthusiastic involvement in education has been another important factor. His work history in prison has been excellent. Patrick was able to concede to me that he would have been aware that he was killing his wife, but his memory is confused and he becomes very distressed when he tries to focus on it. He very much wants to have therapy sessions focusing on the death of his wife and on his intent to kill her; to date therapists have avoided the area because Patrick became so upset. I have agreed, with permission of Corrective Services and after discussion with Mr Zeinfeld, psychologist, to provide Patrick with therapy sessions to focus on his killing his wife. Although afraid, Patrick was eager for this. In my opinion, Patrick will not constitute a risk to the community. With his well-developed work skills (both in building and crane-driving), he will fit into the normal world quickly. His group of Christian friends will be supportive and his Theology studies will give him another range of involvements in the community." 33 McInerney J acknowledged Dr Walker's impressive curriculum vitae and publications and summarised her report. He said that he could well understand there were cultural differences between the deceased and the appellant as the appellant had remarked to Dr Walker. Dr Walker had no doubt that the appellant had fallen in love with the young woman he met shortly before he killed his wife. When Dr Walker first interviewed the appellant he adhered to his story that he only intended to make his wife sick. His Honour had some doubt, however, about whether the appellant was a withdrawn, socially inept, immature and tormented young man. However, he did have many problems. 34 Dr Walker gave oral evidence at the re-determination hearing. McInerney J said: "….that she believed that the appellant needed to be able to talk more about his wife's death, and, as I understand it, face up to what he did. She believes that none of the specific mechanisms of the crime have been addressed by him. During her conversations with him about his wife's death he became visibly upset which she believed was genuine. Dr Walker said the [appellant] could still not remember clearly and that he needed to work through it with somebody. She said he was still very frightened to think about it by himself. He was coping, she said, by shutting things out. He told Dr Walker that he had found it difficult to cope with issues relating to his wife's death. When reading my remarks on sentence, he became so upset that he simply physically could not go on reading the document. Dr Walker, however, believes that the [appellant] will come to terms with what he has done in months, not years. This is certainly an optimistic view. Whether it will eventually prove to be correct is a matter of some speculation, despite Dr Walker's belief. Dr Walker had to concede in cross-examination that in her second interview with the [appellant] he said he could not remember intending to kill his wife but he expressed considerable shame. Dr Walker believed the [appellant] had become quite remorseful and that he was not just feeling sorry for himself because of his predicament in gaol. Dr Walker concluded the [appellant] was a much more mature person. She believes he now has the mechanisms to overcome similar problems should they occur in the future." 35 McInerney J expressly and clearly recognised the balance to be made by a sentencing judge between, on the one hand, the demand for retribution for the horrible crime which was committed and for an appropriate sentence to deter others who might be like minded and, on the other, the blameless and useful life led by the perpetrator, a somewhat socially inept person, up to the time of the commission of the offence. The deceased was a young woman who had her life forfeited by a lonely terrible death in a strange land from a crime motivated by the appellant's desire to rid himself of his wife so that he could continue his relationship with a young woman, circumstances that called for a severe penalty. His Honour said: "The [appellant] has made giant strides towards his rehabilitation but has yet to face up to the fact that he committed this terrible crime." 36 In his careful and persuasive submissions, Mr Boulten, who appeared for the appellant, emphasised that the appellant's rehabilitation was not a matter of speculation but a fact demonstrated by his behaviour and positive activities for the twelve years since he was first imprisoned. Mr Boulten stressed the evidence appearing throughout many reports prepared about him of his remorse and feelings of guilt. He submitted that McInerney J erred in failing to give sufficient weight to these matters. 37 It is important on an appeal such as this to repeat that the Court's intervention depends upon a demonstration of error by the sentencing judge. Mr Boulten submitted that the sentence imposed, when compared with other sentences imposed for like offences, is excessive to the point of demonstrating error in itself. 38 In my opinion, there is no basis upon which it can be said that McInerney J failed to take account of the appellant's demonstrated rehabilitation. Moreover, I do not think that his Honour's conclusion that the appellant had yet to face up to the fact that he committed this terrible crime can be gainsaid. The appellant did not give evidence on the re-determination hearing. He was the person best able to give evidence of a recognition that deliberately and cold-bloodedly and for the purpose of pursuing his relationship with another woman he planned and carried out the killing of his wife by poisoning. Having administered the poison he left his wife to die while he went to cook a meal. When he returned she was dead. It is unnecessary to pile epithet upon epithet to express the seriousness of this crime. At the time of sentence the appellant was content to suggest that the act was merely one of recklessness, part of a plan to make his wife feel sick, and to lay the blame for the problems of the marriage on the deceased. 39 On the re-determination the appellant had the opportunity, himself, to explain his change of attitude. He did not give evidence. Accordingly, it is open to conclude that his evidence would not have assisted his case and to draw more confidently the inference that McInerney J drew from the material before him that the appellant had yet to face up to the gravity of the crime he had committed. 40 Mr Boulten submitted that McInerney J should have given greater weight to the plea of guilty. Even without the appellant's full confession during the interview on 7 January 1987, the known facts were that he had buried his wife's body in the back yard and covered it with lime, that a post-mortem showed traces of cyanide in the deceased's organs and in the vicinity of her body when found, that a bottle containing cyanide was in the shed, that the last person to see the deceased alive was the appellant, that he had lied about the circumstances surrounding her death, and that the fulfilment of his relationship with another woman depended upon his getting rid of the deceased. I have no difficulty in accepting McInerney J's conclusion that the plea of guilty was no more than a realisation of the inevitable. Mr Boulten submitted that in 1987 most people charged with murder pleaded not guilty however strong the case. His Honour factored in the utilitarian value of the plea but regarded it as worthy only of minimal consideration. There was no error in this view. 41 Mr Boulten relied upon sentence statistics. To my mind, these do not demonstrate that the sentence imposed in this case was outside the appropriate range so as itself to be demonstrative of error. 42 In my opinion, the appellant has failed to show any error in the re-determination. 43 No material was put before the Court in support of the application for leave to appeal and to explain the delay of many months in making it. However, the Crown gave no more than token opposition to this application and I would grant leave. I propose the following orders: 1. Leave to the appellant, Patrick James Stephens, to appeal out of time; 2. Appeal dismissed. 44 STUDDERT J: I agree with Sheller JA. 45 SMART AJ: I agree with Sheller JA.

REGINA v STEPHENS

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