VERSLUYS v R

Court of Criminal Appeal (NSW)|2008-03-25|Before: McClellan CJ, Simpson J, Price J, Newman AJ, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 47; Price J at 48

DECISION: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal against conviction and sentence.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - murder - strangulation of de facto partner - whether conviction for murder unsafe and unsatisfactory - whether evidence only supported a conviction for manslaughter - whether appellant had an intention to kill or cause grievous bodily harm - whether trial judge gave balanced summing up - whether matter fell within middle range of objective seriousness - whether trial judge erred in imposing standard non-parole period

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

Apps v R [2006] NSWCCA 290 M v The Queen (1994) 181 CLR 487 CASES CITED : MLP v R (2006) 164 A Crim R 93; NSWCCA 271 R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

PARTIES: Lee Thomas Versluys (Appellant) The Crown

A Haesler SC (Appellant on sentence only) COUNSEL: Appellant in person on conviction L Babb SC/M Rabsch (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant on sentence) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3222

McCLELLAN CJ at CL SIMPSON J PRICE J

THURSDAY 3 APRIL 2008 VERSLUYS, Lee Thomas v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted of the murder of Jodie Hingston. The offence carries a maximum penalty of life imprisonment (s 19A Crimes Act 1900). The standard non-parole period for the offence is 20 years imprisonment: (s 54A and 54B of the Crimes (Sentencing Procedure) Act 1999). 2 Following his conviction the appellant was sentenced to a non-parole period of 20 years imprisonment, commencing on 27 July 2004 and expiring on 26 July 2024, with an additional term of 6 years and 8 months commencing on 27 July 2024. 3 The appellant appeals against his conviction and seeks leave to appeal against the sentence. He appeared for himself in relation to the conviction appeal but was represented by counsel in relation to the matter of sentence.

Facts 4 The facts are in a short compass. The appellant who was aged 30 at the time and the deceased, who was aged 26, had been living together at a boarding house in Redfern for approximately 6 days. They had been living in a de facto relationship for in excess of 6 years prior to that time. 5 The parents of the deceased gave evidence at the trial. Her mother said that in 2003 the appellant and the deceased resided with them for a period. During that time there were often arguments between the appellant and the deceased and on at least one occasion the argument was followed by the appellant chopping up Ms Hingston's clothes. 6 Relations between Mr and Mrs Hingston, the appellant and the deceased deteriorated and they could no longer live together. The appellant and the deceased moved house, although Ms Hingston still kept in contact with her parents. In June 2004 the deceased arrived at her parents' home bruised and bleeding. She told her mother that the appellant had punched her, held a knife at her throat and tried to strangle her. She told her mother that the appellant had accused her of playing up at the time when he assaulted her. Mrs Hingston took her daughter to the Royal Prince Alfred hospital the following day. The hospital notes read: "Patient states boyfriend beat her from 9 pm to 2 am last night (ie 17 June). Punching mainly and scratches to neck with knife and scissors to superficial stab wounds on right arm and leg. No obvious precipitants to attack. Patient reports boyfriend has only slapped or given her a black eye before." 7 Notwithstanding this incident the deceased resumed her relationship with the appellant. A short time later the deceased rang her mother in a distressed state. The appellant interrupted the conversation and said to Mrs Hingston, "She's playing up on me" He went on to say, "If she ever does it again I'll kill her." Mrs Hingston said that the appellant spoke in an angry tone at the time. 8 Mr David Ironside also resided at the premises at the boarding house in Redfern. He was living there for about a week before Ms Hingston died. During that week he had several conversations with the appellant. The appellant told him that the deceased had been having an affair behind his back. The appellant said to Mr Ironside "I feel like strangling the bitch." On the morning of 27 July 2004 the appellant came to Mr Ironside's room and said, "David help me, I strangled the bitch. I caught her sucking some guy's cock in the park." (Although this was the evidence Mr Ironside gave at the trial he did not use the expression "the bitch" in his statement to the police. For this reason the trial judge was not prepared to find beyond reasonable doubt that the appellant used these words). 9 At about 3.55 am on 27 July 2004, which was prior to his conversation with Mr Ironside, the appellant rang 000 to report the incident. He told the operator "My girlfriend and I have had a dispute and I strangled her and she seems to be choking on her spew." When the police and ambulance arrived at the premises, Sgt Reid asked the appellant to tell him what happened. The appellant responded "I strangled her." 10 After he had been cautioned and arrested the appellant was taken to Redfern police station. While he was being searched the appellant asked, "How is she?" The police officer replied "I don't know" and the appellant said, "I caught her playing up on me". The officer asked "Who with?" and the appellant replied "some dog." When the appellant was interviewed he spoke at length about the deceased's alleged infidelity but denied strangling her. At that stage he declined to answer questions in relation to the assault. Later the appellant told another police officer "I didn't mean to hurt her, just to scare her. She was sleeping with someone while I was away. How is she?" 11 In a later interview the appellant admitted strangling the deceased. He was asked how he was feeling at the time he was strangling her and he replied, "Not like I wanted to kill her, just like I want her to just, just, just to get out of my face. Not like I wanted to hurt her, just scare her." 12 The autopsy found that the cause of death was a result of compression of the deceased's neck. Blood samples taken from the deceased revealed the presence of codeine, lignocaine, morphine, nordiazepam and oxazepam. The drug lignocaine was administered by the ambulance officers but the other drugs were in the deceased's blood stream at the time of her death. There was evidence that the presence of these chemicals would have impaired the deceased's natural urge to breathe at the time when neck compression was applied to her. However, the forensic evidence was nevertheless that it was the compression of her neck which caused Ms Hingston's death. 13 The deceased was 160 cm tall and her body weight was 54.5 kilograms. The appellant is 187 cm tall and at the date of the offence weighed 130 kilograms. 14 The issue at trial was the intent with which the appellant acted when he strangled the deceased.

The appeal 15 The appellant filed written submissions which are not entirely clear. However, the first three grounds of appeal raise for the consideration of this Court various evidentiary matters. They may be dealt with together and are expressed as follows:

that the conviction for murder is unsafe and unsatisfactory. 2. that the witness Ironside was not credible. 3. the evidence of the first police responders, Paramedic Marks and Dr Botterill who performed the autopsy, only support a conviction for manslaughter. 16 The appellant maintains the position taken by his counsel at the trial that he should have been found not guilty of murder but guilty of manslaughter. With respect to the issue of intention the Crown case relied upon admissions allegedly made to various witnesses including Mr Ironside. As I have indicated Mr Ironside's evidence was that prior to the day on which the deceased was injured the appellant complained angrily about the deceased's infidelity which was causing him stress and tension. He also spoke with Mr Ironside after Ms Hingston had died. 17 Although when cross-examined Mr Ironside was challenged as to the use by the appellant of the word "bitch", the substance of the conversation was not challenged. It was suggested to him that the way in which the appellant had spoken when he said he felt like strangling the deceased was consistent with a person who was exasperated but not literally intending to kill her. 18 The appellant repeated his complaint about the deceased to the police. Although there was evidence that at times the appellant appeared upset and was trying to assist the deceased, when it was suggested that Const Knight observed the appellant to be distraught or in panic, this was denied. 19 The appellant submitted that given his emotional state, together with the evidence of the effect of the drugs which the deceased had taken and their consequence if her neck was compressed, the jury could not be satisfied that he had an intention to kill or cause grievous bodily harm to Ms Hingston as opposed to an intention merely to scare her. He submitted that Mr Ironside's evidence of what he told him was not credible because of the very short time they were known to each other. 20 There was evidence at the trial of a history of violence inflicted by the appellant on the deceased. There was also evidence that he was angry with her and he told one police officer that he had in fact "strangled her." The identified cause of the violence was the appellant's belief that the deceased had been unfaithful to him. The history of violence in the relationship and the appellant's apparent obsession with his belief that the deceased had been unfaithful to him meant that it was open to the jury to conclude that the appellant had strangled the deceased in a jealous rage, with either the intent to cause her grievous bodily harm or, at the least, had acted recklessly. Although there was evidence that the various chemicals found in the deceased's body may have inhibited her breathing reflex there can be no doubt that the constriction to her neck applied by the appellant was the cause of death. To my mind on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of murder (see M v The Queen (1994) 181 CLR 487 at 493).

Ground 4 21 The appellant complained that when summing up to the jury his Honour spoke about the offence of murder more than he did of manslaughter. There is no doubt that his Honour did this. However, it was inevitable. The substantive issue at the trial was whether the Crown could prove the necessary intention, before the appellant could be convicted of murder. Having reviewed the whole of the summing up I am satisfied that his Honour adequately and fairly explained to the jury the elements of both murder and manslaughter. 22 The appellant submitted that his Honour's summing up was not balanced and complained in particular that he inferred in his summing up that Mr Ironside was a credible witness. In the course of his remarks his Honour reminded the jury that there was no issue that the appellant had told Mr Ironside that he had strangled the deceased. His Honour also reminded the jury of Mr Ironside's evidence of the threats made by the appellant to the deceased and reminded them, in my opinion correctly, that Mr Ironside had been cross examined without any suggestion that his evidence was not essentially credible. His Honour also reminded the jury of the evidence of the conversation between the appellant and the deceased's mother. To my mind these were appropriate matters to bring to the jury's attention and his Honour did so in a balanced and fair manner. 23 His Honour was also careful to remind the jury, in the conventional manner, that they were the sole judges of the facts and should ignore any view of the facts which his Honour appeared to have unless that view coincided with the jury's independent assessment. Having reviewed the whole of the summing up I am not persuaded that his Honour was unfair to the appellant.

Ground 5: The appellant could not instruct his solicitor fully or make life changing decisions as he was under the influence of "Seriquel" (600 mgs daily for approximately 18 months) 24 The transcript does not indicate any difficulty in the appellant instructing his counsel at trial. Although he was on medication there is no suggestion that for this reason the trial miscarried. The appellant does not provide any detail of matters he was unable to communicate to his lawyers or of any forensic difficulties which arose with the decisions made by his counsel during the course of the trial. 25 In my opinion each of the grounds of appeal fails and that the appeal against conviction should be dismissed.

Leave to appeal against sentence 26 The appellant raises two grounds of appeal in relation to his sentence.

Ground 1: His Honour erred in his assessment that the matter fell within the middle range of objective seriousness 27 The standard non-parole period for the offence of murder is 20 years imprisonment. The standard represents "an offence in the middle range of objective seriousness" (s 54A(2)). His Honour determined that the objective seriousness of the offence fell well within the mid range although at the higher end of that range. His Honour commented that if he had found that the crime had been premeditated he would have determined that it fell into a category beyond the mid range. He also said that if he had found that the appellant intended to kill the deceased he would have categorised the crime as falling beyond the mid range. 28 His Honour summarised his reasons for finding that the appellant's culpability fell at least within the mid range in these terms: "(a) that strangulation is a particularly horrible way for a person to die. The process, as I have said, must have taken some minutes, minutes in which the deceased must have been terrified and suffering great pain; (b) the prisoner had in the past threatened to do exactly what he did do; (c) the vast physical difference between the prisoner and the deceased makes this a most cowardly crime." 29 His Honour concluded that "in light of the threats he had made in the past and the vast physical difference between himself and the deceased, (the appellant) at least intended to cause her serious bodily harm when he placed his hands around her neck. My ultimate finding is that the prisoner intended to cause the deceased grievous bodily harm when he strangled her and that, as a consequence of his actions, the deceased died." 30 The appellant challenges his Honour's finding on five bases:

No intention to kill 31 It is apparent from the passages I have extracted that his Honour addressed the question of the appellant's intention when he killed the deceased. The appellant submits that the trial judge failed to consider when determining the seriousness of the offence that the appellant did not have an intention to kill. To my mind there is no substance in this submission. It follows from his Honour's finding of an intention to cause grievous bodily harm that his Honour did not find that there was an intention to kill. 32 In Apps v R [2006] NSWCCA 290 Simpson J (at [49]) stated that the state of mind in which an offence is committed is a relevant consideration to the assessment of the criminality in relation to the offence of murder. However, her Honour stressed that it is not the only circumstance relevant to that assessment. Although where there is an intention to kill the objective seriousness of the offence is likely to be greater, it does not follow that where the intention is confined to an intention to cause grievous bodily harm that the objective seriousness will fall below the mid range (see Apps per Hunt JA at [4]).

Not premeditated 33 As I have indicated his Honour stated that if the offence had been premeditated it would fall into a category beyond the mid range. His Honour said that he would be of the same opinion if he had found that the appellant intended to kill the deceased. 34 It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of the particular offence falls below the mid range.

An immediate recognition of the potential harm caused, evidenced by his calling 000 35 The appellant suggested that his Honour failed to have regard to the fact that it was the appellant who telephoned 000 when he realised that Ms Hingston had been harmed. However, his Honour could not have overlooked it. His Honour provided an account of the telephone call in his remarks when he was describing the evidence relevant to his ultimate conclusion. 36 When assessing the objective seriousness of any offence the court is required to identify the relevant facts and form an intuitive judgment based upon the experience of the courts in sentencing for the particular offence. This is true of murder as it is of any other offence (see R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [13] and MLP v R (2006) 164 A Crim R 93; [2006] NSWCCA 271 at [33]. I am not persuaded that when identifying the matters which were critical to the decision that the offence fell within the mid range his Honour did not have regard to all of the relevant factors.

That no weapon was used 37 Section 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 refers to the actual or threatened use of a weapon as a potentially aggravating factor in a crime. However, the absence of a weapon does not mean that it is a factor in mitigation. His Honour was obviously conscious of the fact that a weapon was not used when he stated his view that strangulation is a particularly horrible way for a person to die. There are a number of weapons which the appellant could have used, including a ligature to effect strangulation. However, the fact that a weapon was not used and the assailant only used his hands does not mean that the offence is necessarily less serious. As his Honour said strangulation is a horrible way to die and in some respects made more horrible by the assailant using only his hands.

That the deceased was particularly vulnerable as her capacity to breathe normally was significantly compromised by the drugs she had voluntarily taken 38 The fact that the deceased had taken drugs which compromised her breathing was discussed during the course of the trial. In his remarks on sentence the trial judge referred to the evidence of Dr Botterill, the forensic pathologist, who identified the fact that although the deceased's ability to breathe was inhibited by the substances found in her blood, "the fact of the matter is that they were not the cause of her death but that cause was the application of pressure on her neck by the prisoner." His Honour stated: "I should add in this context Dr Botterill's evidence that the neck compression applied necessary to cause brain damage would have lasted, at a minimum, four minutes. Even accepting that the deceased's breathing ability was inhibited by the drugs she had ingested, the prisoner must have applied pressure to her neck for some minutes prior to her lapsing into unconsciousness." 39 From these remarks it is plain that his Honour was conscious of the relationship between the drugs in the deceased's blood and her death. However, accepting Dr Botterill's evidence, the appellant nevertheless engaged in a continuous act of strangulation for a significant period of time. I can discern no failure by his Honour to have appropriate regard to the presence of drugs in the deceased's blood when forming his conclusion as to the criminality involved. 40 The appellant submitted that by reason of each of the matters to which I have referred and cumulatively, his Honour fell into error. In my opinion that submission must be rejected. I am satisfied that his Honour had regard to all of the evidence and made an appropriate determination as to the seriousness of the offence.

Ground 2: His Honour erred in his assessment that there were not reasons for setting a shorter non-parole period than the standard non-parole period 41 The appellant submitted that there are many cases where, although a sentencing judge has determined that the offence falls within the middle range (or above) of objective seriousness, the subjective factors justify a non-parole period less than the standard period provided by the statute. It was submitted that in this case the appellant's subjective features justified such a decision. This court has repeatedly warned against comparing the circumstances of individual murders when sentencing a particular offender. In R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65 at [52] Spigelman CJ stated: "In this area, prior cases of this character are a guide and are likely to be a more useful guide than the Judicial Commission's sentencing statistics. However, murder is a crime which can be committed in a wide range of gravity and objective circumstances. There is also a significant range of differences in the subjective circumstances. This is a context where the maximum penalty is life and, accordingly, the range over which the sentencing discretion can be exercised is the largest open to a judge in our justice system." 42 The appellant referred to a number of previous decisions where there were circumstances justifying a departure from the standard non-parole period. However, there is no principle which emerges which required the sentencing judge in the present case to provide a non-parole period less than 20 years. The matters referred to by the appellant were

(a) the hardships suffered by the appellant in his youth; (b) his remorse; (c) that the offence was not planned or organised; (d) his prior criminal record and that this would be his first gaol sentence; (e) that he is unlikely to reoffend; (f) his prospects of rehabilitation given his age and in particular:- (g) the degree of pre-trial disclosure; starting with the 000 call, the subsequent admissions and the way the trial was conducted. 43 Each of these matters was referred to by the judge in his remarks on sentence. Following his Honour's discussion of them he said: "As I have said, Dr Bishop relied upon a number of mitigating factors set out in s 21A of the Act. I should add that, in relation to the question of rehabilitation, he submitted that the prisoner would require a longer than usual period of rehabilitation having regard to the difficulties he suffers from as outlined in the report from the psychologist Mr Dawes. However, applying what fell from the Court of Criminal Appeal in Way [ R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131] I am of the view that the matters averted to by Dr Bishop in his submissions as to the applicability of s 21A do not dissuade me that this is a case where the standard non-parole period should be applied. In my view, the objective features to which I have referred so outweigh the matters properly raised by Dr Bishop in mitigation that I therefore propose to apply that standard non-parole period." 44 In R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [13] Simpson J usefully summarised the propositions which emerge from the decision in Way. Her Honour's summary is as follows: (i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]); (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319.

Finally, it is to be observed that there is nothing in Division 1A that compels a court which finds that an offence is in the mid range of objective gravity to fix the standard non-parole period in respect of that offence. Possible reasons for departing from the standard non-parole period are extensive, as s21A makes clear." 45 It was to these principles that the sentencing judge referred. Although another judge may have come to a difference conclusion I am satisfied that the conclusion reached by the sentencing judge was within his Honour's discretion. No error has been revealed. 46 Although I would grant leave to appeal against sentence I would dismiss the appeal. 47 SIMPSON J: I agree with McClellan CJ at CL. 48 PRICE J: I agree with McClellan CJ at CL. **********

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Cases Cited (8)