New South Wales Supreme Court CITATION : R v Victorsen [1999] NSWSC 913 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70020 of 1998 HEARING DATE(S) : 14/05/1999;23/06/1999; 02/07/1999; 30/07/1999;13/08/1999 JUDGMENT DATE : 13 August 1999 PARTIES : Regina William Peter Victorsen JUDGMENT OF : Hidden J at 1 COUNSEL : P. Boulten (Victorsen) P Barrett (Crown) SOLICITORS : Peter Ash & Associates (Victorsen) Solicitor for Public Prosecutions (Crown) CATCHWORDS : Sentencing - murder - patricide - plea of guilty after initial concealment of involvement - drug problem - family breakdown following death of mother - special circumstances DECISION : Eighteen years: Minimum term: 13 years; Additional term: 5 years THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday, 13 August 1999 No 70020 of 1998 Regina v William Peter Victorsen Remarks on Sentence 1 HIS HONOUR: The prisoner, William Peter Victorsen, appears for sentence after having pleaded guilty to the murder of his father. In the early hours of Sunday, 2 November 1997 he beat his father to death with a heavy metal pipe at their home at Eastwood. To understand the circumstances of the killing, it is necessary to sketch the prisoner's background and, in particular, his relationship with his father. The background 2 Evidence of his background emanated mainly from his own testimony in this Court and the history he provided to Dr William Lucas, psychiatrist, who provided a report. His account was corroborated in significant respects by his married sister, Mrs Simone Ibrahim, whom I found to be an impressive witness. 3 The prisoner is a single man, who is now twenty-six years old and was twenty-four at the time of the offence. He was born and raised in Sydney, for the most part in the family home at Eastwood. His only sibling is his sister, who is younger than he. He was very close to his mother but not to his father, whom he found distant and demanding. Mrs Ibrahim herself said that, while she loved her father, he was "very unemotional" and "a very hard man to talk to…". It does appear that the prisoner's relationship with his father was submissive and lacking in affection, and that this lowered his self-esteem. 4 Dr Lucas described him as "somewhat of a loner". He progressed satisfactorily at school, completing his Higher School Certificate, but had very few friends among his peers. He enrolled in Arts at Macquarie University and studied for two years. However, he left university at the end of 1992 and did not finish the course. This does not appear to have been the result of any lack of ability on his part. He presented in the witness box as an intelligent and articulate young man. 5 His father had been successful in small business, among other things, as the proprietor of a milk run. He purchased a milk run for the prisoner, who worked it through his years at university and for a little over a year thereafter. During the same period after leaving university, he also worked as a clerical assistant for a telecommunications company. 6 In 1994 he began trading in futures, moving into rented premises in the city which he shared with other young men engaged in the same activity. Futures trading was stressful and involved long hours. He already smoked marijuana daily, and he began to use cocaine with the same frequency and, to a lesser extent, ecstasy. This was the beginning of a pattern of drug abuse which was to escalate such that, as Dr Lucas put it, "his drug abuse almost completely took over his life." 7 In about April 1995 his mother told him that she was terminally ill with cancer. He was devastated by this news and gave up work as a futures trader. During the course of that trade he had made and lost a considerable amount of money, and not long before he abandoned it his father was called upon to meet his commitments to the tune of about $100,000. He began abusing prescription drugs of the benzodiazepine type: primarily Rohypnol and, later, Valium. He continued to smoke marijuana. He also drank alcohol, not through dependence upon that drug but because it enhanced the effect of the benzodiazepines. 8 To Dr Lucas he described himself as "a complete mess" after his mother died in November 1995. Certainly, this was his sister's observation. He had moved back to the family home during his mother's illness, and he remained living there with his father for most of the time thereafter. His drug abuse worsened. As his tolerance for benzodiazepines increased, he was taking very large quantities of prescription drugs daily. In relation to his drug use by 1997, he said in evidence, "It fluctuated depending on how much I could procure. I could never get enough." 9 His use of benzodiazepines and marijuana led to paranoid thoughts. He would believe that people were following him or that someone was in the house, apparently bent upon doing him harm. His sister observed him to exhibit irrational fears and sometimes to speak in what she described as "gibberish language", and this behaviour scared her. From his perceived need for protection he kept three pieces of metal pipe, two in the house and one in the laundry. It was the pipe in the laundry that was to become the murder weapon. Dr Lucas saw this behaviour as consistent with his drug abuse and did not consider it to be evidence of a psychosis. 10 As is so often the case, he resorted to deception to feed his addiction. He paid friends to obtain drugs on his behalf, and became skilled at "doctor shopping" and stealing prescriptions. Earlier, before he was earning money as a futures trader, he had sometimes stolen cash from his father. From time to time, he extracted money from his father, as he had earlier from his mother, by falsely representing that he was indebted to drug dealers. Indeed, only a matter of days before the killing he smashed several windows at the home and sprayed the words "warning/death" on the exterior to suggest that his debts were such that dealers were prepared to kill him. His father gave him money on that occasion, although considerably less than he had asked for. 11 In July 1997 he stole some cheques from his father and negotiated them, obtaining more than $13,000. His father reported the matter to police, possibly in the hope that his being charged might break the cycle of drug abuse. Certainly, it appeared to the prisoner that his father wanted to help him during the period before the charges were dealt with. 12 He attempted drug rehabilitation, but his success was short lived. At the time the charges against him were finalised at Ryde Local Court in October 1997, he had hoped to enter a residential drug rehabilitation centre near Wollongong. However, he was unable to do so as the magistrate imposed a term of periodic detention. Thereafter, as he put it in evidence, "I fell back into my old pattern and began to use drugs as heavily as I could." 13 His father had assisted him financially since he gave up work as a futures trader. However, in the period leading up to the killing his father restricted the supply of money to him, confining him to amounts required for specified legitimate purposes. Trust between them deteriorated to such an extent that his father would keep a number of rooms in the house locked, allowing him access only to his own bedroom, the bathroom and the kitchen. Nevertheless, his evidence was that in the period between July 1997 and the killing his relationship with his father was better than it had been for years. The killing and its aftermath 14 All the more extraordinary then, are the events of the night of Saturday, 1 November 1997 and the early hours of the following morning. Throughout the afternoon and evening of the Saturday the prisoner consumed a large amount of Valium and marijuana, together with several bottles of beer. His father had been keeping company with a lady, and in the early evening he went out to join her for a movie and dinner. 15 The prisoner remained at home and at around 11pm he began to have thoughts of killing his father. In evidence he explained the experience in this way: I had thoughts in my head saying do it, do it, to kill my father. To finish something for once in your life, to not chicken out. Just those were repeating over and over in my head. He said that he did not wish to kill his father and the only explanation he could offer for these thoughts was the "cocktail of drugs" which he had consumed. 16 He went to the laundry and took up the piece of metal pipe which he kept there. His father arrived home about an hour later and he struck him with the pipe as he entered the back door. He said in evidence that he could not remember how many times he hit his father: it could have been five blows but it may have been twenty-five. He claimed that the first blow stunned his father, causing him to fall to the floor, and the other blows were delivered while he was in that position. This may be so, but there is no denying the ferocity of the attack. Dr Johan Duflou, who conducted the post-mortem examination, found that "there was massive head injury with extensive skull fracturing and destruction of brain tissue". 17 There followed an elaborate and sustained attempt by the prisoner to conceal his responsibility for the killing. He sought to make it appear that his father had been robbed and killed by intruders. He took money and credit cards from the pocket of his father's trousers. He burnt the metal pipe and a pair of rubber gloves with thinners, so that the remains of the rubber gloves adhered to the pipe. He washed his blood stained clothing and shoes, although he said in evidence that he had no memory of this. Police found the clothing in the washing machine. 18 He showered, put on fresh clothes and made his way to the casino in Darling Harbour. He threw his father's credit cards into the water near the casino. He remained there for some hours, consuming more Valium and alcohol. He was aware that he was likely to have been filmed by a security video camera at the casino and, indeed, such a videotape is an exhibit in these proceedings. Asked in evidence whether he had gone to the casino to create a false alibi, he said that that "may have been" the reason but it was not his "primary thought". He added that he had been to the casino on many occasions and he knew that it would be open. 19 He returned home, and at about 5am he rang the OOO emergency number and Eastwood police, claiming that he had come home to find his father dead. When police and ambulance officers arrived, he told them that he owed a substantial amount of money to drug dealers and expressed the view that it was he, rather than his father, who was the intended victim of the attack. 20 He maintained this stance in an electronically recorded interview with police later that morning and a typewritten statement which he signed, also on that day. He claimed to have received threatening phone calls from drug dealers and he alleged, as he had to his father, that they were responsible for the broken windows and graffiti several days previously. He gave a detailed and exculpatory account of his movements on the night of the Saturday and the early hours of the Sunday, including his visit to the casino. He went to the extent of supplying Christian names of two men said to be drug dealers and an address at which they were said to live. Three days later he participated in a videotaped "walk-around" at the home, in which he maintained the same account. 21 On 15 December 1997 he reported to police that he himself had been robbed a few days earlier by two men as he returned home in the evening. He did not suggest that he could identify those men, but the effect of his account was to imply that the robbery was connected to his drug debts and, indirectly, to his father's death. On 22 December he participated in a further electronically recorded interview, in which he maintained his innocence but resiled from the suggestion that the drug dealers whom he had named were responsible for his father's death. This did not allay the suspicions of the police and on 29 December, after a search of the home, he was arrested and charged with the murder. He has been in custody since that date. 22 It would seem that his sister entertained her own suspicions and in January 1998, during a visit to him in custody, she extracted his admission that he had killed his father. On 6 February 1998, when the charge was listed in a magistrate's court prior to the committal proceedings, his solicitor informed the court that he admitted involvement in the killing. About a month later, he was committed to this Court for trial after proceedings in which no oral evidence was required. It seems that, at that stage and for some months thereafter, his legal representatives at that time managed his case conservatively, exploring the possibility of a defence based upon his mental state at the relevant time. 23 In late December 1998 or early January 1999, the prisoner had his sister inform the police officer in charge of the investigation that he wished to be interviewed further about the matter. At that stage he no longer had legal representation. As it happens, that interview could not be arranged until 17 March 1999. In the course of it he admitted having killed his father, giving the account to which he adhered in evidence before me. He acknowledged that most of what he had previously told police was false. In particular, he admitted that he had lied about being indebted to drug dealers and about their involvement in the breaking of windows and spraying of graffiti at the home, and that his report of being robbed on 15 December 1997 was also a fabrication. 24 The manner in which the prisoner set about concealing his involvement in the crime, viewed in combination with the broken windows and graffiti several days earlier, raises the suspicion that the killing was conceived well before it occurred and was planned with some care. However, I am not satisfied that this was the case. Indeed, in final submissions the Crown prosecutor did not press that view. His argument was that the prisoner's behaviour after the killing, including that depicted on the casino's security video, suggests that he was not as affected by drugs and alcohol as he would have me believe. On the other hand, it is likely that his tolerance to drugs enabled him to mask the symptoms of intoxication to some degree. His sister gave evidence to that effect. Of itself, the fact that he went to such lengths to cover his tracks does not necessarily mean that the killing was planned. It is not uncommon even for a spontaneous killing to be followed by an elaborate cover-up. 25 I approach the matter on the basis that the killing occurred in the circumstances which the prisoner described in his confession of March of this year and in evidence before me. There was a degree of premeditation, although at a time when his judgment and reasoning were clouded by the ingestion of drugs and alcohol. The attack upon his father was a savage one, although its very ferocity is testament to his abnormal state of mind. 26 Dr Lucas did not diagnose a drug induced psychosis, but expressed the view that the prisoner's "history of drug abuse and probable dependence on cannabis and benzodiazepines played an important part in his actions". Some light is thrown on this tragic incident by the evidence of his relationship with his father, which was at best ambivalent, but the killing will never be satisfactorily explained. Although by no means a worst case, the circumstances place the offence in a more serious category than the spontaneous homicides more commonly encountered in this Court. Victim Impact Statement 27 I received in evidence a Victim Impact Statement from the prisoner's half-sister, the daughter of the deceased from a previous relationship. This woman had been adopted by a couple many years ago, but in 1997 she was progressing towards the re-establishment of a relationship with her natural father. It is sad indeed that that process was brought to an end by his untimely death. The Court expresses to her its sympathy in her tragic loss as, of course, it does to the prisoner's natural sister, Mrs Ibrahim. 28 However, it is inappropriate that I should have regard to that statement in assessing the sentence to be passed. That has been the approach of this Court in many cases of this kind, and I see no reason to depart from it in the present case. The gravity of the prisoner's crime must be determined by reference to the facts as I have found them. In accordance with ordinary sentencing principles, the sentence to be imposed must reflect the seriousness of the offence, whilst having regard to the prisoner's background, his criminal record and his prospects of rehabilitation. Subjective case 29 Apart from the charges arising from the cheques he stole from his father, to which I have referred, the prisoner has some other entries on his criminal record. They are not serious and are of no present consequence. In lieu of the term of periodic detention imposed at Ryde Local Court, the prisoner has served a fixed term of five months since being taken into custody in relation to this matter. Nevertheless, I shall date his sentence from the date of his arrest, 29 December 1997. 30 He has used his time in custody to foster his rehabilitation. He is described by Corrective Services authorities as a competent and willing worker. He has undertaken courses in life skills. More importantly, he has been undergoing regular psychological counselling to address his personal problems and, in particular, his abuse of drugs and alcohol. The psychologist reports that he has been "enthusiastic and highly motivated" and has demonstrated "a commitment to a better understanding of himself". He gave evidence of his determination to remain drug free upon his release. 31 He expressed remorse for his crime to Dr Lucas and, on many occasions, to his sister, Mrs Ibrahim. She gave evidence that she accepts it as genuine. It is consistent with his confession earlier this year, belated as it was. It is also demonstrated by his plea of guilty to murder, to which significant weight should be given. 32 He has had the benefit of the continuing support of his sister and, until recently, regular contact with her five year old daughter. Sadly, the little girl died in a tragic accident a few weeks ago. I accept that the prisoner was devoted to her and it is unfortunate that arrangements could not be made for him to be escorted to the funeral. I also accept that her loss, and the unresolved grief engendered by it, will make his time in custody more difficult, although I do not think that this is a matter to which much weight can be afforded for the purpose of sentence. 33 Obviously, the bizarre circumstances of this killing raise a question whether the prisoner might remain a danger to society upon his release. In his report Dr Lucas expressed his view in this way: From the psychiatric viewpoint, I believe Mr Victorsen's risk of re-offending in a violent way after his eventual release from prison will be relatively low provided he does not return to drug abuse. Mr Victorsen is capable of further education and if he avails himself of opportunities to pursue this in prison and undertakes the appropriate drug and alcohol counselling then his future prospects will be improved. On release from prison he will require a substantial period of supervision and will need to abstain from drugs and alcohol. This, I think, is a sound assessment. On the whole of the material before me, I believe that his prospects of rehabilitation are good. Nevertheless, it is in the community's interest that he be subject to the sanction of parole for a lengthy period upon his release, having the benefit of supervision for as much of that period as the Probation and Parole Service considers appropriate. Accordingly, I find special circumstances justifying an addition term somewhat longer than the statutory norm. The sentence 34 The prisoner has asked that I take into account five matters on a Form 1 when passing sentence. They are offences committed since the death of his father and it is unnecessary to go to the detail of them. The charges are possessing cannabis, failing to appear, forging and uttering a prescription and making a false instrument. William Peter Victorsen, on the charge of murder and taking into account the matters on the Form 1, you are sentenced to penal servitude for eighteen years. That sentence will comprise a minimum term of thirteen years, commencing on 29 December 1997 and expiring on 28 December 2010, and an additional term of five years, commencing on 29 December 2010 and expiring on 28 December 2015. ********** Last Modified: 09/09/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.