R v Cleverly [2004] NSWSC 1279

New South Wales Supreme Court

CITATION : R v Cleverly [2004] NSWSC 1279 revised - 03/03/2005 HEARING DATE(S) : 21.7.04, 22.7.04, 23.7.04, 26.7.04, 27.7.04, 28.7.04, 29.7.04, 30.7.04, 2.8.04, 3.8.04, 4.8.04, 5.8.04, 9.8.04, 10.8.04, 11.8.04, 12.8.04, 13.8.04, 16.8.04, 17.8.04 15.10.04, 12.11.04, 17.12.04 JUDGMENT DATE : 17 December 2004

JUDGMENT OF : Mathews AJ DECISION : Sentence - 24 years commencing on 9 February 2003. Non parole period of 18 years from that date. The earliest date eligible for release on parole will be 8 February 2021.

CATCHWORDS : Criminal Law - sentencing - murder - plea of not guilty LEGISLATION CITED : Crimes (Sentencing Proceedure) Act 1999 PARTIES : Regina Richard CLEVERLY FILE NUMBER(S) : SC 70085/03 COUNSEL : P. Conlon - Crown A Webb - Defence SOLICITORS : S Kavanagh - Crown T Heenan - Defence

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

MATHEWS AJ

17 December 2004

70085/03 Regina v Richard CLEVERLY

JUDGMENT

1 HER HONOUR: On 17 of August 2004 the prisoner, Richard Cleverly was convicted by a jury of murdering Susan Smith. The offence took place on the evening of the 3 July 2002. Susan Smith, then aged 42, was the prisoner's aunt, his mother's sister. She lived with another sister, Margaret, in a house at Mons Avenue West Ryde. The third sister, Helen Cleverly, lived not far away with her two younger sons, Michael and David. The prisoner, Helen Cleverly's oldest son, was at that stage living with his girlfriend Beth, again not far from his mother's home or from that of his two aunts. 2 Neither Susan nor Margaret Smith had ever married. They had lived together in the Mons Avenue house for about 20 years at the time of the killing. They were very self-sufficient and did little outside socialising except with family members. They both worked: Susan as an Administrative Assistant with Coles Myer at Chullora and Margaret as a Legal Secretary in a city law firm. They tended to be creatures of habit. Every morning Susan left for work at about 6.30 and Margaret about an hour later. Susan generally returned home at about 6 in the evening and Margaret at about 7. By the time Margaret arrived, Susan had generally had a shower, changed into her night clothes and commenced to prepare dinner for the two of them. They were both extremely security conscious, and kept the house thoroughly secured at all times. 3 On the evening of 3 July 2002, Margaret Smith arrived home at her normal time. The back door was ajar, and the house was in blackness. Both of these findings were most unusual. As it turned out, the power had been turned off at an outside electrical box, which had been forcibly broken open. Margaret went into the house and located a torch. She then found her sister's body, in her night clothes, lying face down on the loungeroom floor. She had no pulse. Margaret called triple-0 and in due course both the ambulance and the police arrived. A post-mortem examination conducted the next day showed that Susan Smith had died through ligature strangulation. The precise nature of the ligature has never been established. Presumably it was taken away by the killer. 4 The following day, 4 July, the police conducted a recorded interview with various family members including the prisoner, Richard Cleverly. In his interview, the prisoner gave a version of his movements the previous day which did not place him at or near his aunts' home at Mons Avenue. At the conclusion of the interview the police sought and obtained his permission to take a DNA sample from him by way of a saliva swab. 5 Three days later, on Sunday 7 July, the prisoner asked to be re-interviewed by the police. A further recorded interview took place that evening. On this occasion the prisoner told the police that he had gone to his aunts' home at Mons Avenue early on in the evening of 3 July, before Margaret's return home, and had found his Aunt Susan's body lying on the loungeroom floor. He was not sure whether she was dead, he said, and he unravelled the fingers of her clenched hands and felt her fingertips which were cold. At about that point he said he heard a gate closing. He took fright and ran out of the house and back to his car. He said that he thought of calling the ambulance or the police, but was scared that he would be held to blame for the killing. He therefore went home and told no one about what had happened. 6 There were various aspects of the prisoner's account on this occasion which could not be reconciled with the objective evidence, particularly as to the timing of the killing and also as to the state of the house when Margaret Smith came home. In addition, forensic tests showed that fibres from a jacket which the prisoner had with him that evening were found on numerous parts of Susan Smith's clothing, and also on the electrical box, which had been broken into so that the power could be turned off. Even more significantly, DNA which could only realistically have come from the prisoner was found under the deceased's fingernails. Evidence given at the trial indicated that the prisoner's unclenching of the deceased's fingers would be most unlikely to explain this finding. 7 On 22 August 2002 the prisoner was charged with murdering Susan Smith. 8 In the meantime, some strange events had occurred. On the evening of 24 July, three weeks after the killing of Susan Smith, Margaret Smith was attacked from behind as she arrived home from work, and an apparent attempt made to strangle her. This was thwarted by the arrival of a neighbour, and the assailant ran away. He has never been identified. The prisoner has always denied being implicated in this assault, and he has never been charged with it. I mention it now only because it featured prominently in the evidence. I am certainly not taking this incident into account in any way in the sentencing of the prisoner. Three days later the prisoner himself was the subject of an apparent attack at his mother's home when petrol was poured over him. 9 In mid August 2002 the prisoner's mother received the first of a number of communications to herself or her family from an individual who ultimately identified himself exclusively as 'I2'. In fact, some strange correspondence had previously emanated from the same person, in connection with a problem the prisoner had experienced earlier that year with his then employer, Coles Myer. In the communications received after Susan Smith's killing, I2 clearly identified himself as the killer, and made various threats against the Cleverly family, particularly Richard. 10 Between August 2002 and March 2003 the prisoner was in custody. He was allowed bail in March 2003 and returned to live with his mother at Constitution Road, West Ryde. Whilst he was there, some strange events again occurred in and around the house, apparently the work of I2. 11 On 6 August 2003 when the prisoner was alone at home at Constitution Road with his youngest brother, David, a home invasion occurred. Various men wearing balaclavas and apparently carrying firearms broke into the house. They tied David up, and put a pillowslip over his head. They then proceeded to take a large number of items out of the house and put them into the two family cars, which were then driven off. In due course the prisoner also was left tied up with a pillowslip over his head. The letters I2 were painted on at least one of the walls of the house. A computer disk was left at the scene with a message from I2 saying: