Regina v Lee [1999] NSWSC 773

New South Wales Supreme Court CITATION : Regina v Lee [1999] NSWSC 773 CURRENT JURISDICTION : Criminal Jurisdiction FILE NUMBER(S) : L00021 of 1996 HEARING DATE(S) : 23 July 1999 JUDGMENT DATE : 23 July 1999

REGINA

PARTIES : v

CHRISTOPHER ROY LEE JUDGMENT OF : Levine J

COUNSEL : Mr C Craigie (Applicant) P Thompson (Office of the Director of Public Prosecutions) SOLICITORS : Prisoners Legal Service (Legal Aid Commission of NSW) CATCHWORDS : Determination of life sentence - s 13A Sentencing Act 1989 ACTS CITED : Sentencing Act 1989 Regina v Raymond Leslie White (CCA, 23 June 1998) CASES CITED : Regina v Stephens [1999] NSWCCA 80 Regina v Brett Leroy Ellison (Levine J, 13 March 1998) DECISION : See paragraphs 27 & 28

(Revised) THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION No. L00021 of 1996

JUSTICE DAVID LEVINE

FRIDAY 23 JULY 1999

REGINA v CHRISTOPHER ROY LEE JUDGMENT (Determination of life sentence - s 13A Sentencing Act 1989 ) 1 HIS HONOUR: The applicant Christopher Roy Lee applies pursuant to s 13A of the Sentencing Act 1989 for the re-determination of a life sentence imposed upon him by McInerney J on 16 February 1990. That life sentence commenced on 19 October 1988. 2 The factual circumstances found by the sentencing Judge are: "The Crown case was that on the day in question the prisoner had been drinking beer with his brother. At the time he was unemployed and was living in a defacto relationship with the young lady and there were twin boys of that relationship. It appears after consuming some alcohol - the precise quantity is unclear - he left his parent's home where he had been drinking with his brother, at Croydon Park, and was walking to his place of residence at Lakemba. It was on this journey that he came to the residence where the unfortunate deceased and a young child were living with her parents. These premises consisted of premises above and behind a shop area. The living area was apparently downstairs and there were two bedrooms, one occupied by the parents of the deceased and the other by the deceased and her child. In her parents' bedroom apparently there was a TV set and video recorder, and some furniture. What happened thereafter is unclear and one is dependent to a major extent on what was seen by her parents and the investigating police and to some extent the prisoner's version of the events. Her parents returned from work at approximately 5.30 to 5.45pm. When they arrive home, they could hear the deceased's baby crying. They looked in the kitchen and a horrifying sight met their eyes. Their daughter was lying face down on the floor, naked, in a pool of blood, obviously dead from multiple stab wounds. It was obvious that she had been the subject of a frenzied attack and the blade of a large carving knife, responsible for her wounds, had broken off and was still stuck in the deceased's back. Dr Bradhurst, the pathologist, who conducted the post-mortem examination, and who viewed the deceased's body at the premises stated in evidence that he found twenty-three stab wounds to the body including wounds to the front of the chest, the back of the chest on the left, the left upper limb, the right upper limb and the left lower limb. The se stab wounds were penetrating wounds to the aorta, both lungs, the superior vena carva, the diaphragm, the spleen, the liver and the left internal jugular vein. In the police antecedent form the police described this killing as one of utmost savagery and brutality and with those comments I can only agree. A person closely resembling the prisoner was seen outside the premises at the relevant time and later was observed by another witness walking up Punchbowl Road in the direction of Lakemba, bare-chested, with a garment under his arm involving the prisoner being on the premises at the time the deceased was killed. The prisoner then returned to his home and being bare-chested, he stated he had been attacked by two men outside the Belfield Hotel and that his shirt was lost in that incident. He was persuaded by his neighbours to report this matter to the police and as a result, without going into the details, he was arrested and charged with this offence. The deceased's mother testified that the deceased had been acquainted with the prisoner and that the deceased regarded him, like a brother. The prisoner in a record of interview to the police stated that he and the deceased went upstairs. After a period he and the deceased began a sexual encounter, if I can use that expression. He said that whilst he was attempting to have sexual relations with the deceased, she suddenly pushed him away and thereupon informed him that she proposed to ring the police and complain that he had raped her. She then went downstairs where the telephone was situated and he followed and tried to reason with her, without success, she maintaining that she was going to ring the police. He then said he panicked and stabbed her. He also agreed that, not only did he stab her in the chest, but when she fell down, he stabbed her in the back. He at no time disputed that the questions and answers in the record of interview were a correct transcript of what took place between himself and police. At the trial however a different version of events occurred. A Mr Ballinger gave evidence for the Crown. This witness apparently had had a previous de facto relationship with the deceased, and was the father of her child. He was cross-examined at some length by Mr Green, of senior counsel, suggesting in fact that he was the person who had committed the murder, in the presence of the prisoner. The prisoner then alleged that he was threatened by this witness, that if he told anyone about what had happened, he would kill his fiancee' and her two sons. It was because of this threat, he said, that he decided to admit to the killing because he was not prepared to take the risk that Ballinger may be lying. Quite clearly, the jury rejected this version of events. It is my view that the jury would have accepted, as I do, that he attempted to rape the deceased in the upstairs bedroom. This is supported, I believe, very strongly by the torn state of her clothing found on the floor of the upstairs bedroom, the disturbed state of the double bed and blood on the cover and the pillow, consistent with that of the deceased. It appears, in my view, that somehow or other she was able to get away from the prisoner and escape downstairs and attempted to ring the police when she was stabbed by the prisoner. This is the only rational explanation, in my view, as to her being found naked, stabbed to death on the floor of the kitchen. The jury obviously, in my view, would not have accepted his story of losing his shirt in the assault outside the hotel. I believe that this was a story thought up by him to explain his bare-chested appearance when he arrived home and I believe that at some stage on the journey from the scene of the crime to his home, he disposed of that shirt because it was probably blood-stained". 3 The crime was rightly described on the objective facts as a horrifying one and one which called for a very heavy penalty and still can be so described. 4 In the circumstances referred to by the sentencing Judge the deceased was stabbed 23 times. 5 The formal material before me in this application is constituted by Exhibit A made up of the Statement of Facts, the psychological report of Mr John Taylor prepared on 8 February 1990, and His Honour Remarks on Sentence. 6 Exhibit B is the report of the Serious Offenders Review Council prepared on 16 October 1997, and Exhibit C is supplementary documentation from the Serious Offenders Review Council (Management Committee). Exhibit 1 is a report, prepared on his own initiative, as I understand it, by Dr Roger Blake, psychologist, and Exhibit 2 the Notice of Reply to the Statement of Facts and the document appended thereto. 7 The applicant gave no evidence before me. Mr Craigie of counsel could only inform the Court that the applicant was unwell and really did not wish to give evidence. In all the circumstances I am not constrained to draw any of the usual, or any particular adverse inference from that fact; it is but a neutral one. 8 No Victim Impact Statements were tendered. Notwithstanding that, it must be remarked that the horrendous killing, on the basis of ordinary human considerations, would have impacted awfully on those close to the deceased, Leanne Gai Collins. 9 With His Honour's observations on the gravity of the objective circumstances of the murder I am in entire agreement. Whilst alcohol was not found by His Honour to have played any mitigating role at the time, still it can now only stand, to the extent that there was any involvement, as some explanation but not as an excuse. 10 The applicant has maintained his innocence and thereby has displayed in the strict sense no contrition for the horrific murder of which he was found guilty. However it does appear to me on the material to which I have referred that it can be said of this applicant that he has reached a point of acceptance of the situation in which he finds himself. This however is not the same as contrition or remorse. Importantly, the continued assertion of innocence is not necessarily inconsistent with the prospects of rehabilitation (see Regina v Raymond Leslie White (CCA, unreported, 23 June 1998, Spigelman CJ at page 5). That proposition is to some extent affirmed in Regina v Stephens (1999) NSWCCA 80, (22 April 1999) per Sheller JA at 17-18. That case however on its face is starkly different from the present. In no way can it be said in this case that the conduct leading to the death of the deceased was premeditated. 11 Thus, as to the objective circumstances of the offence the conclusions reached by the sentencing Judge are ones with which I would agree and which I would characterise as identifying an horrendous act of violence arising from circumstances that in some way caused this applicant to "snap" (cf. Regina v Brett Leroy Ellison, 13 March 1988 unreported, a decision of my own), and were circumstances which called for, according to the law as it then stood as His Honour found, the imposition of the life sentence in the absence of mitigating factors. 12 In accordance with the law applicable to a re-determination, it was objectively a horrendous crime, as I have said, which calls for a severe penalty reflecting principles of punishment, retribution, and general deterrence. Personal deterrence in the curious position of a person who asserts innocence nonetheless can perform some role in relation to an applicant who at least has reached a point of the acceptance. 13 Since his imprisonment the applicant, now aged 34, (he has spent 10 years 9 months and 5 days in custody), the evidence in the form of the usual certificates indicates, has embarked upon alcohol and drug related rehabilitation courses and gained some appropriate insights. Overall he has worked and has performed jobs within the prison system and is presently doing so. There is no basis for any adverse conclusions to be reached against the applicant in terms of any disciplinary problems within the prison system. 14 There has however been an unusual administrative conflict between the applicant and the authorities in relation to classification. The basis of that conflict was that the applicant enter into a Tier Three programme for sexual offenders. This the applicant has been unwilling to do and, to my mind, not without some justification in the sense he is not a convicted sexual offender. He stood trial on the charge of murder only. That there was sexual activity before the crime was committed was found by the learned sentencing Judge. In the end I am not persuaded that conflict between the applicant and the relevant authorities should operate to his detriment. 15 The applicant of course has undergone periods of protection and movement within the prison system unquestionably to his dissatisfaction particularly in relation to contact with his family, there having been none over the last three years or so, as I understand, otherwise than by telephone. He is presently in custody at Junee. 16 As I have said he maintains his innocence but that does not derogate from the significance of the steps being taken to rehabilitate himself in terms of his alcohol abuse and otherwise properly to conduct himself within the prison system. 17 It was submitted by Mr Craigie of counsel for the applicant that the applicant has become reclusive, has kept to himself, and indeed part of his personality has, as-it-were, "closed down" which could point to an early onset of what is known as institutionalisation. The public interest should be served and conformably with all the relevant considerations of principle that can now apply to the re-determination of a sentence in a way, that state of institutionalisation not be permitted to mature. 18 There is no suggestion in the material of future dangerousness. In his report of 7 July this year Dr Blake remarks: "Despite the inherent difficulty in regard to admission and acceptance of guilt, Mr Lee is a person who disclosed potential in regard to personality improvement." 19 The applicant has and will have the benefit of the professional care and interest that Dr Blake is prepared to provide him. 20 The applicant is aware he will have to spend some considerable further time in custody. He thus has no plans presently in relation to his release, but Mr Craigie has informed the Court that in due course he hopes to go to an environment where arrangements for employment at least will have been made. 21 The applicant, who is not an inherently evil person, whose criminal antecedents are irrelevant, is industrious now and at least can be said to feel a "sense of responsibility". Insofar as there is evidence of general progress to rehabilitation, it is to be acknowledged that by reason of his withdrawal, and notwithstanding his self-imposed isolation, he has contact with the outside world through the family of a fellow inmate who has befriended him. 22 For the purposes of the imposition of the sentence on this application for re-determination, the objective gravity of the offence for which the applicant was convicted on a plea of not guilty and in respect of which he maintains his innocence, cannot be disproportionately or unreasonably diminished in the light of factors which have occurred since the imposition of the life sentence. 23 The Crown does not oppose the application. 24 The Crown stresses the seriousness of the objective facts and submits the findings of the sentencing Judge as to the alcohol and the absence of contrition to the extent that innocence is maintained in the face of a finding of guilt on a plea of not guilty cannot be overlooked. I agree. 25 Otherwise, as I perceive the situation, the position of the Crown and the applicant in relation to rehabilitation and future dangerousness is virtually as one. The objective seriousness of the murder calls for a substantial prison term during the balance of which the applicant should pursue his steps to rehabilitation and adjustment and avail himself of such services as exemplified by Dr Blake. 26 Having weighed the factors to which I have referred I am of the view the appropriate minimum term is 16 years and the additional term should be 5 years. 27 Christopher Roy Lee pursuant to s 13A of the Sentencing Act 1989 having granted your application for a re-determination of the life sentence imposed on 16 February 1990, I sentence you in respect of the charge of murder of which you were found guilty to a total term of penal servitude of 21 years to date from 19 October 1988. I fix a minimum term of 16 years to date from 19 October 1988 and to expire on 18 October 2004. I fix an additional term of 5 years to commence on 19 October 2004 and to expire on 18 October 2009. 28 You will be eligible for release to parole on 18 October 2004. 29 Exhibits may be returned. ***********