Withers v The Queen

1 Judgment in this matter was delivered on 18 December 2009.[1] The reasons that follow should be read in conjunction with the reasons for judgment delivered on that date.

2 In relation to the conviction for murder, count 1, the Court foreshadowed that the appeal would be allowed and, pursuant to s 569(2) of the Crimes Act 1958 (as it then stood), a conviction for manslaughter would be substituted. In relation to the sentences for incitement to murder, counts 2 and 3, leave to appeal would be refused. It was noted that, as a result of the quashing of the conviction for murder, and the substitution of a conviction for manslaughter, a further hearing would be required in order that an appropriate sentence for that offence could be fixed. In addition, the question of cumulation in respect of the sentences imposed on counts 2 and 3 would necessarily have to be considered.

3 The Court, having heard further submissions in relation to these matters, is now in a position to re-sentence the appellant.

4 The circumstances of the offending are set out in the Court's reasons for judgment in this matter.[2] It is sufficient, for present purposes, to note that the appellant had, for some years prior to his death, been in a de facto relationship with Peter Shellard, the victim of this offence. She had also been the book-keeper for Kellow Falkiner Motors Pty Ltd, the deceased's car business. In the months leading up to his death, there had been a falling out between them. In around April 2005, he had her removed as a signatory to his business accounts.

5 At the relevant time, the appellant owned and operated a retail clothing boutique in Brighton. The deceased had contributed funds to that business, but had ceased doing so in about April 2005. The result was that the appellant was under severe financial stress.

6 On the evening of 6 May 2005, the appellant, together with her co-offenders, Stanley Callinicos and Sophia Stoupas, went to the deceased's home at 3 Rose Craddock Place, Caulfield. They had earlier agreed to tie him up, and sedate him. The appellant's aim was to compel the deceased to sign various documents that would transfer to her ownership of a property which was registered in his name, but which she claimed to be hers. She had arranged for the property to be put in the deceased's name in order to shield it from her former spouse. An additional motive, upon which the Crown relied, was said to be revenge. The appellant claimed to have been forced by the deceased to participate in acts of sexual bondage.

7 Callinicos and Stoupas were both drug addicts. They did not know the deceased. The appellant had met them some months earlier. She had cultivated their friendship by purchasing clothing for Stoupas, and by supplying them both with drugs and cash.

8 The appellant had a key to the deceased's home and, on the night in question, let them all in. What occurred thereafter is set out in the Court's earlier reasons for judgment.[3] Briefly, the appellant, Callinicos and Stoupas, entered the deceased's bedroom while he was in bed asleep. A struggle ensued during which Stoupas struck the deceased twice about the head with an unknown object. Stoupas later admitted that she had acted without the appellant's knowledge, or consent. Callinicos also acknowledged having struck the deceased to the head with his hand, at least once. He too admitted that, in doing so, he acted without the appellant's knowledge, or consent.

9 The deceased was soon overpowered, and tied up with a rope that the offenders had brought with them for that purpose. The three of them left the bedroom for a time. Shortly thereafter, the appellant went back into the bedroom, and injected the deceased with heroin. The evidence was that she had earlier that day planned to administer a different drug, a sedative known as Proladone. However, Callinicos had persuaded her to use heroin instead. The heroin was purchased from Callinicos' dealer.

10 The deceased, a man aged 56, had a heart condition. The medical evidence was that his death had been brought about by a combination of the blows to his head (resulting in subarachnoid haemorrhage), the injection of heroin, and the fact that he had an occluded artery. The evidence was that both an injection of heroin and injury to the head could depress the activity of the central nervous system, and lead to death. Given that heroin could interfere with the body's control mechanisms for breathing, the injuries to the head that the deceased sustained could have rendered him more vulnerable to the effects of the heroin. The jury clearly found, as they were entitled on that evidence to do, that the injection of the heroin had substantially contributed to his death.

11 Ultimately, this Court set aside the appellant's conviction for murder as being unsafe or unsatisfactory.[4] We considered that it had not been open to the jury, upon the whole of the evidence, to be satisfied to the requisite degree of the appellant's guilt of that offence. That was because the evidence fell short, in our view, of establishing an intention to kill, or cause really serious injury.

12 That conclusion did not, in any way, impugn the jury's finding that it was the appellant who had injected the deceased with heroin, and not Callinicos or Stoupas, as she claimed. Nor did it cast doubt upon the jury's finding that the injection of the heroin was a 'substantial operating cause of death'.

13 The appellant pleaded guilty to two counts of incitement to murder. These arose out of her attempt, some weeks after Mr Shellard's death, to engage the services of a 'hitman' to have both Callinicos and Stoupas killed. Her explanation for wanting them killed was that they had gone beyond the terms of the arrangement, which had not included causing serious harm to the deceased. The appellant also told the 'hitman' that she was concerned that Callinicos and Stoupas might 'talk'. The 'hitman' turned out to be an undercover police officer.

14 The appellant was sentenced by the trial judge to 20 years' imprisonment on the count of murder, and seven years' imprisonment on each count of incitement to murder. The sentences on the latter two counts were made wholly concurrent with each other. It was ordered that six years of the sentence on count 2 be served cumulatively with the sentence on count 1.[5] The result was a total effective sentence of 26 years' imprisonment. A non-parole period of 18 years was fixed.

15 In arriving at that total effective sentence, and non-parole period, his Honour took into account a body of evidence placed before him regarding the appellant's mental state. He said:

A report from a psychologist, Mr Patrick Newton, has been tendered on your behalf on your plea. He describes the development in you of post traumatic stress disorder as a result of childhood abuse. Difficult as that must have been for you, it was in remission at the time of these offences although it may have contributed, as your counsel submitted, to the very severe post-natal depression from which, as I accept, you suffered following the birth of your second son in 1998. You continue to suffer from this debilitating illness. As a result, any sentence of imprisonment will weigh more heavily upon you than it would on a person in normal health. Moreover, I accept the statement by Mr Newton in his report of 11 October this year that your periods of depression will be more frequent and more intense in prison than they would be were you not incarcerated. For this reason I would ask the correctional authorities to be mindful of the recommendations that Mr Newton has made, and the needs which he has emphasised, at page 4 of his report of 11 October 2007. For my part, I have taken all of the above considerations into account in mitigation of the sentence that I would otherwise have imposed.

...

Impaired mental functioning, whether temporary or permanent, may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. I am not persuaded on the balance of probabilities that your depression has in any way reduced your moral culpability. Indeed, having carefully considered Mr Newton's report and the other relevant evidence, I am satisfied that it has not. All the evidence is that your capacity to function, as you planned the events of 7 May 2007, and as you attempted subsequently to exploit them, was unimpaired by any mental illness or other relevant mental factor.

For this reason, too, I am unable to conclude that in your case there should be any moderation, let alone elimination, of specific deterrence as a sentencing consideration. I appreciate that, as is the case with considerations of general deterrence, I must have regard to this aspect of the sentencing exercise both as at the time of the offending and at the date on which sentence is passed. I have proceeded accordingly. I nevertheless remain of the opinion that your depressive illness does not in your case moderate the need for either general or specific deterrence. You are an intelligent and resourceful person, and I take into account your level of functioning at the time of the offences, and your present capacity for insight, which is I am satisfied unaffected to any relevant extent.

You are close to your brothers, to your sister, and to your sons, who are, respectively, eleven and nine years old. Imprisonment will it seems result in your only being able to communicate with your children by correspondence, so long as they remain in the custody of their father. This it seems to me is most unfortunate, as I believe that you have qualities from which, with appropriate contact with you, they would benefit. In any event, you are their mother and that in itself is a basis for the belief that they and you would be the beneficiaries of as much contact as in the circumstances is reasonably possible. It is a mitigating factor, for sentencing purposes, that this outcome is unlikely: as a mother separated from her young children, I am satisfied that you will find the burden of imprisonment greater on that account. On the other hand, while the Court is sympathetic to the position of children who through no fault of their own suffer from the imprisonment of a parent, the law does not ordinarily reduce what is otherwise a proper sentence by reason of the impact that imprisonment has on those close to the offender.[6]

16 On the re-sentencing hearing before us, the appellant relied upon two reports of Mr Newton, one of which was before the judge below, and the other dated 16 April 2010. She also relied upon the trial judge's assessment that, as a mother separated from young children, she would find the burden of imprisonment greater.

17 In re-sentencing the appellant for manslaughter, the starting point is to note that the maximum sentence for that offence is 20 years' imprisonment.[7] It is also necessary to have regard to principles of parity. Both Callinicos and Stoupas pleaded guilty, at an early stage, to the manslaughter of the deceased. They were each sentenced to six years' imprisonment, with a non-parole period of three years and six months.

18 The appellant's culpability is, of course, significantly greater than the culpability of either Callinicos or Stoupas. It was she who instigated the commission of this offence. Unlike them, the appellant did not plead guilty. Nor can she call in aid, as they could, a willingness to give evidence against a co-accused.

19 The Crown submitted that the appellant's conduct, in relation to the death of the deceased, represented a most serious example of manslaughter, which called for a severe penalty. We accept that submission. The appellant, for personal gain, and perhaps revenge as well, arranged to break into the home of the deceased at night, in company with others. Her plan was to assault him, tie him up, and sedate him with heroin. This was a planned attack, and not one committed on the spur of the moment. The deceased was known to her to be a man in his mid-fifties, and suffering from mental illness. He was entirely defenceless. The attack, which preceded his death, was carried out in a cowardly and terrifying manner. The entire episode involved an act of great cruelty.

20 The fact that the conviction for murder has been quashed means that the appellant is not to be treated as having intended to kill the deceased, or to cause him grievous bodily harm. Nonetheless, her actions must be regarded as reflecting a high degree of moral culpability.

21 Manslaughter is, of course, a crime which attracts a wide range of sentences.[8] The circumstances in which that crime can be committed will vary greatly. For that reason, any reference to statistics involving sentences for manslaughter is unlikely to be helpful.

22 As we indicated in our reasons for judgment, there is no answer to a finding that the appellant brought about the death of the deceased by unlawful and dangerous act. In order for a person to be guilty of that form of manslaughter, the circumstances must be such that a reasonable person in the position of the accused would have realised that he or she was exposing another to an appreciable risk of serious injury.[9] The appellant's conduct falls squarely within that description.

23 There are many examples of unlawful and dangerous act manslaughter in the reported cases. The most common of these arose out of various forms of assault. However, attempted assault, attempted robbery, unlawful wounding, burglary, unlawful administration of drugs, arson, abortion, and discharging a firearm in a public place have also been found to constitute the necessary unlawful act.[10]

24 The act which caused the death of the victim must not only be unlawful, it must also be dangerous.[11] As the test is objective, it is unnecessary to prove that the accused knew that the act was either unlawful or dangerous.[12] There must be an 'appreciable' risk of serious injury,[13] though that does not involve a finding that there is a 'likelihood' or 'probability' of such injury.[14]

25 In our original reasons for judgment, we observed that the appellant must have known that the deceased had a heart condition.[15] During the re-sentencing hearing, it was submitted that there was no warrant, in the evidence, for that conclusion. It was submitted that there was nothing to indicate that the deceased himself was aware of his problem, and even if he was, nothing to suggest that he had told the appellant about it.

26 That submission is correct. To that extent, our earlier observation about the inference that could be drawn regarding the appellant's knowledge of the deceased's occluded artery was misconceived, and erroneous. Plainly, if the appellant had that knowledge, her moral culpability would be still greater.

27 The absence of such knowledge has no bearing upon our conclusion that a verdict for manslaughter should be substituted. There are cases where it has been held to constitute unlawful and dangerous act manslaughter when an accused has brought about the death of another by injecting that other with heroin, at that person's request.[16]

28 The appellant's conduct in this case was significantly more culpable than those other instances of death by unlawful administration of drugs. The deceased neither asked to be injected with heroin, nor consented to being dealt with in that way. His home was broken into, he was assaulted, tied up, and had heroin injected against his will. Even accepting that the appellant was unaware that the deceased had a heart condition at the time, she certainly knew that he had sustained, at the very least, significant injury to his head. The pillow case that had been placed over his head was, after all, covered in blood.

29 In addition, the appellant certainly knew that the deceased was suffering from bi-polar disorder, and had been taking medication for that condition. She was aware that the medication affected the deceased, bringing about significant changes to his moods.

30 To inject a person who is not a user of heroin with that noxious substance is, in itself, likely to be dangerous. To do so when the appellant herself had, at best, a limited understanding of the strength of the drug to be used, and no familiarity with the effects that heroin might have upon a person who was not a regular user of that drug, made the matter still worse. The appellant injected the deceased moments after he had been assaulted, and while he was still probably unconscious. She was aware that he was taking medication. She ought to have been aware that the medication he was taking might have resulted in a negative reaction with heroin. These factors, in this case, all lead to the conclusion that the appellant's conduct constituted a 'dangerous act' in the sense required for unlawful and dangerous act manslaughter.

31 It was submitted before us that the substitution of the conviction for manslaughter for the original conviction of murder had implications for the degree of concurrency that should be ordered as between count 1, and counts 2 and 3. We think that submission has some force, but only marginally so.

32 Even if the appellant did not intend to have Mr Shellard killed, or seriously injured, her statement to the 'hitman' that Callinicos and Stoupas had gone beyond the terms of their arrangement cannot be accepted. She must bear her share of responsibility for what occurred. Assuming, as we do, that she is to be absolved from responsibility for any of the blows struck to the head by her co-offenders, she is not absolved from responsibility for having unlawfully brought about his death. The incitement to murder counts are really quite separate, in that sense, from her earlier criminality.

33 It can be said, in favour of the appellant, that she has no prior convictions. It can also be said that, having regard to the separation from her children, she will find the burden of imprisonment a heavy one. Her background, involving a history of abuse, depression, and the other subjective factors outlined in the original report by Mr Newton, to which the trial judge referred, and later largely replicated in his second report, dated 16 April 2010, do not, in our view, bring the appellant within any of the first four principles laid down in R v Verdins.[17] There is, however, some limited scope for the operation of principles 5 and 6 in this case.[18] We are also prepared to accept that she has reasonable prospects of rehabilitation.

34 The sentences of seven years imposed upon each of counts 2 and 3 will, of course, stand. So too will the order that those sentences be served concurrently with each other.

35 For the offence of manslaughter, the appellant will be sentenced to a term of eight years' imprisonment. Five years of the sentence imposed on count 2 will be served cumulatively with the sentence on count 1. That makes a total effective sentence of 13 years' imprisonment. A non-parole period of nine years will be fixed.

36 The Court will hear the parties as to the amount of time already served under pre-sentence detention.

37 Any ancillary orders made by the sentencing judge, including any orders for the disposal of property used in, or in connection with, the commission of the offences are affirmed.

[1] R v Withers [2009] VSCA 306.

[4] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[5] His Honour held that, notwithstanding s 16(1) of the Sentencing Act 1991, there should be a degree of cumulation between the sentence on the charge of murder, and the sentences on the charges of incitement to murder.

[6] R v Withers [2007] VSC 411, [11], [13] - [15] (citation omitted).

[7] Section 5 of the Crimes Act 1958.

[8] R v Papazisis and Bird (1991) 51 A Crim R 242, 245.

[9] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313.

[10] R v Lamb [1967] 2 QB 981; R v Holzer [1968] VicRp 61; [1968] VR 481; Pemble v R [1971] HCA 20; (1971) 124 CLR 107; R v Wills [1983] VicRp 80; [1983] 2 VR 201; and R v Dawson (1985) 81 Cr App R 150.

[11] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313; and R v Chai (2002) 187 ALR 436.

[12] Director of Public Prosecutions v Newbury & Jones [1976] UKHL 3; [1977] AC 500.

[13] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 333 (per Mason CJ, Toohey, Gaudron and McHugh JJ). Cf Brennan, Deane and Dawson JJ, where the test put forward was that the injury not be 'trivial or negligible' (339 and 341).

[14] Ibid, 333-4; and R v Bux [2002] VSCA 126; (2002) 132 A Crim R 395.

[15] R v Withers [2009] VSCA 306, [152].

[16] See for example R v Cato [1976] 1 WLR 110.

[17] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[18] These are, respectively, 5) that the appellant's condition might weigh more heavily on her than it would in a person in normal health; and 6) the risk that imprisonment will have a significant adverse effect on her mental health.

The Verdins submission might have carried greater weight had evidence been led from a treating doctor, rather than a forensic psychologist who was largely reliant upon the appellant's own account of her situation.