New South Wales Supreme Court CITATION : R v Lee Thomas VERSLYUS [2006] NSWSC 188 HEARING DATE(S) : 21/11/05 - 1/12/05 JUDGMENT DATE : 24 March 2006 JUDGMENT OF : Newman AJ DECISION : I sentence the prisoner to a non-parole period of 20 years, commencing on 27 July 2004 and expiring on 26 July 2024, when the prisoner will be eligible for release. The additional term is of 6 years and 8 months in accordance with s44 of the Act, commencing on 27 July 2024. CATCHWORDS : Murder - Standard non-parole period LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Bollen v Regina (1998) 99 ACR 510 Cameron v R (2002) 187 ALR 65 R v GJ Davies [2004] NSWCCA 319 CASES CITED : R v Holten [2004] NSWCCA 214 R v Pellew [2004] NSWCCA 434 R v Previtera (1997) 94 ACR 76 R v Way (2004) 60 NSWLR 168 PARTIES : REGINA Lee Thomas VERSLUYS FILE NUMBER(S) : SC 2005/839 COUNSEL : Ms P. Adey (Crown) Dr J. Bishop with Ms C. Sclavos (Prisoner) SOLICITORS : Solicitor for Public Prosecutions (Crown) Mr G. Chegwidden (Prisoner) - 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN AJ 24 March 2006 2005/839 R v Lee Thomas VERSLUYS REMARKS ON SENTENCE 1 NEWMAN AJ: The prisoner, Lee Thomas Versluys, is to be sentenced today for the murder of Jodie Lee Hingston following his conviction on 1 December 2005 by a jury of that crime. The conviction followed a trial which commenced on 21 November 2005. 2 The maximum penalty prescribed by the Crimes Act 1900 for the crime of murder is life imprisonment. 3 Under the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of twenty years for murder is stipulated. I shall return to the application of the provisions of that Act later in these remarks. 4 Firstly, it is my task to find the objective facts relating to the subject crime. In so doing, I have applied the criminal standard of proof, namely, proof beyond reasonable doubt. The findings of fact which I make must not be inconsistent with the verdict returned by the jury. 5 I find the facts as follows:- 6 Prior to 27 July 2004, the prisoner and the deceased had been in a de- facto relationship for approximately six years. During the course of that relationship they had resided together at various places within the State. As of 27 July 2004 they were living together in a boarding house at 207 Cleveland Street, Redfern, residing in Room 68 in those premises. 7 While the relationship between the prisoner and the deceased had been in existence for some six years, it had not always been one of a peaceful and quite nature. Her mother deposed that in 2003, when the prisoner and the deceased were residing at premises occupied by Mrs Hingston and her husband, there were often arguments between the pair. Mrs Hingston deposed that, at least on one occasion following an argument, the prisoner had chopped up her daughter's clothes. 8 The prisoner and the deceased ceased residing with the deceased's parents after a period of some eight months. The evidence of both Mrs Hingston and her husband is to the effect that relations between the Hingstons and the prisoner and the deceased had deteriorated to such a degree that they could no longer reside together as a group. Mr Hingston deposed as to the excessive nature of the prisoner's attitude towards his daughter. 9 However, the deceased and her parents, particularly Mrs Hingston, kept in contact. 10 In June 2004 the deceased arrived at her parents' home. Her mother deposed that the deceased was bruised and bleeding. The deceased told her mother that the prisoner had punched her, held a knife at her throat and tried to strangle her. Futhermore, the deceased told her mother that the prisoner had accused her of playing up at the time when he assaulted her. The next day the deceased was taken to Royal Prince Alfred Hospital by her mother. The hospital notes taken at that hospital on 18 June 2004 are, in part, as follows:- "Patient states boyfriend beat her 9pm to 2am 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 precipitant to the attack. Patient reports that boyfriend has only slapped or given her a black eye before." 11 A Dr Green, who gave evidence of the treatment subsequently received by the deceased following the events of 27 July 2004, interpreted the notes as follows:- "She alleged an assault by her partner on the evening before hand. Of what I can tell she obviously had quite a few bruises all over her. It seemed they were most worried about an injury over her left face and her left breast. She had a lot of punches and scratches but x-rays did not show fractures. From that point of view we were assured that she did not have any serious injuries other than obvious bruising and swelling." Dr Green deposed that the notes indicate that, after that examination, the deceased was allowed to leave the hospital. 12 Her mother deposed that, while there was an intermission in the relationship between her daughter and the prisoner following that episode, a short while afterwards her daughter rang her to tell her she had resumed her relationship with the prisoner. 13 Some little time after that the deceased rang her mother in a distressed state. That telephone conversation was interrupted when the prisoner took over the conversation. Mrs Hingston deposed that the prisoner said: "She's playing up on me" and then went on to say: "I'm telling you something, if she ever does it again I'll kill her". Mrs Hingston deposed that the prisoner's tone of voice was angry at the time when he told her that. 14 I should say that I totally accept Mrs Hingston's evidence in the matter and thus find that the episodes she described occurred. 15 As I have said, prior to 27 July 2004 the prisoner and the deceased had resided at 207 Cleveland Street, Redfern, for about a week. Another resident of those premises was one David Alan Ironside. He had commenced residing at those premises on 19 July 2004. During the course of the week or so that the prisoner, the deceased and Mr Ironside were residing at those premises, the prisoner and Mr Ironside had several conversations. Mr Ironside deposed that prior to 27 July 2004 the prisoner had told him that the deceased had been having an affair behind his back. Mr Ironside said that the prisoner had told him that she had been having an affair for the entire time they had been together and that she had been making matters worse for him, causing him a lot of stress and tension. Mr Ironside said that the prisoner told him: "I feel like strangling the bitch". 16 Mr Ironside further deposed that on the very morning of 27 July 2004 the prisoner, having knocked on his door at the premises 207 Cleveland Street, Redfern, on the door being opened said to him: "Help me, I've strangled the bitch. I caught her sucking some guy's cock in the park." Mr Ironside further deposed that on several occasions prior to 27 July 2004 the prisoner had told him that: "I feel like strangling the bitch". 17 Mr Ironside then accompanied the prisoner to where the deceased was lying and attempted to render assistance to her. He ceased attempting to render assistance when ambulance officers arrived. 18 Mr Ironside's evidence, particularly in relation to the conversation that he had with the prisoner on the morning of 27 July 2004, was challenged in cross-examination. The nub of the challenge made by counsel for the prisoner was that, in a statement given to police shortly after the events of 27 July 2004, Mr Ironside had stated that the prisoner had said to him: "Jodie's not breathing, I strangled her". The expression 'the bitch' did not appear in Mr Ironside's statement to the police. Despite being pressed on this issue, Mr Ironside stated that what he had said in chief was what he now remembered and that in fact he had attempted in the past to change his statement but the police had not provided him with an opportunity to do so. 19 I find Mr Ironside to have been a quite impressive witness. He gave his evidence very clearly. However, as it is my task in finding the facts, as I have said, to use the criminal standard of proof, namely, proof beyond reasonable doubt, in view of the clash between Mr Ironside's statement to police and his evidence, I can not find beyond reasonable doubt that, in fact, the prisoner had used the expression 'the bitch' when he told Mr Ironside that he had strangled her. However, I wish to make it quite clear that I am not saying that I believe Mr Ironside to be a liar. All I am saying is that the clash between his statement and his evidence is such that I cannot find beyond reasonable doubt that the prisoner used the expression 'the bitch' in the subject conversation. Let me say also that if the standard of proof to be applied was a balance of probabilities, I would accept Mr Ironside's statement. 20 Prior to the conversation which the prisoner had with Mr Ironside on the morning of 27 July 2004, the prisoner had rung 000 to report the incident. He said to the operator: "My girlfriend and I have had a dispute and I strangled her and she seems to be chocking on her own spew". The operator asked him: "You did it yourself?" to which the prisoner replied: "There was some heroin involved too". 21 Following the prisoner's report to 000 both police and ambulance eventually arrived at the premises at 207 Cleveland Street. When the prisoner was asked by a Sergeant Reid: "Can you tell me what happened?" the prisoner replied: "I strangled her". Sergeant Reid then gave him the usual warning about making statements about the matter. 22 However, later in the morning at Redfern police station, a Constable O'Neil gave evidence of a conversation he there had with the prisoner. The prisoner said to him: "How is she?" to which constable O'Neil replied: "I don't know". The prisoner then said: "I caught her playing up on me". Constable O'Neil said: "Who with?" and the prisoner replied: "Some dog". Constable O'Neil then reminded him of the warning which Sergeant Reid had given him at Cleveland Street. 23 Later that morning the prisoner participated in an electronically recorded record of interview. Later still he underwent a second electronically recorded record of interview. In his first record of interview the prisoner denied strangling the deceased and, in fact, during the course of that interview, made a number of comments about the deceased which were not complimentary of her. The tenor of his first record of interview, I believe, may be found in the following answers he gave to questions 269 to 273: "Q269 OK. Just before we conclude then, did you at any time assault Jodie Lee Hingston? A No. Q270 Did you attempt to strangle ------- A Verbally assault. Q271 Verbally. Did you attempt to strangle Jodie Lee Hingston? A No. Q272 OK. Currently Jodie Lee Hingston is in hospital at the moment in a fairly serious condition. Can you tell us how she came to be that way? A I have no idea. Q273 Jodie has a number of what appear to be bruises and injuries around her neck. Do you have any knowledge of how they got there? A I dunno, maybe you should ask one of her several boyfriends." 24 Between the first and second records of interview the prisoner was attended to by a Constable Tesioriero, who carried out forensic procedures with the prisoner. During the course of that episode the prisoner told Constable Tesioriero certain things about what had happened. As a consequence of those statements Constable Tesioriero suggested to the prisoner, quite properly in my view, that he should speak to the investigators again. As a consequence, he prisoner then took part in a second record of interview where he admitted that he had strangled the deceased. However, he claimed that he did not intend to kill her, just to scare her. Again the tenor of that interview may be found in the answers to a number of questions: "Q24 How were you feeling at the time, when you were strangling Jodie? A 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 to scare her. Q25 Just to scare her? A Just to stop her from just going off. Q26 What do you mean by going off? A Verbal, throwing things." 25 I turn then to the evidence given by the forensic pathologist Dr Paull Botterill. Dr Botterill carried out a post-mortem examination of the deceased on 30 July 2004. Among the matters which Dr Botterill had available to him when conducting the examination was a CT scan taken at the Royal Prince Alfred Hospital on 27 July 2004. The deceased, I should add, had been taken from the premises at Cleveland Street to that hospital by ambulance following the earlier attention given to her by the ambulance officers. That CT scan showed changes in the deceased's brain which were consistent with brain injury. 26 Dr Botterill relevantly found abrasions or graze type marks over the left side of her neck and bruising under the skin surface on both sides of her neck, which he deposed were consistent with the history he had received of neck compression. Dr Botterill also dealt with toxicological findings made from blood samples taken both before and after the death of the deceased. Blood samples taken at Royal Prince Alfred Hospital while she was still alive reveal the presence of codeine, lignocaine, morphine, nordiazepam and oxazepam. These substances were also found in the blood samples taken at post-mortem. The drug lignocaine had been administered to the deceased by the ambulance officers who attended her at Cleveland Street. The remaining drugs, namely, codeine, morphine, nordiazepam and oxazepam were plainly, on Dr Botterill's evidence, present in the deceased's body when the prisoner applied pressure to her neck. 27 Dr Botterill explained that the presence of morphine was probably caused by the breakdown of the drug codeine, which contains morphine. It was Dr Botterill's conclusion that, even taking into account the presence of the substances I have nominated in her body at the time of the prisoner's attack upon her, in his opinion the cause of death was consistent with the consequences of neck compression. He deposed that the minimum time required for the application of pressure on the neck to cause irreversible brain damage was four minutes. In chief he also deposed that the presence of the four substances I have mentioned would have impaired the deceased's natural urge to breathe at the time when neck compression was applied to her by the prisoner. In cross-examination, Dr Botterill confirmed that view. However, Dr Botterill maintained his opinion that the cause of death of the deceased was neck compression; that is, the result of the prisoner strangling her. Dr Botterill also deposed that the deceased was 1.6 metres tall and her body weight was 54.5kgs. In other words a very small woman. The prisoner, on the other hand, is a very large man. He stands 187cm tall and, as at the date of these events, weighed 130 kgs. 28 What then do I find the facts to be? I find that the deceased died as a result of pressure applied to her neck by the prisoner. In other words, she died because he strangled her. While it is the fact that 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. I do not accept that the prisoner merely meant to scare the deceased or to dissuade her from the course of conduct which he says she was following immediately prior to him placing his hands around her neck. I do this for two reasons. One, such a finding would be quite inconsistent with the jury's verdict. Two, that the prisoner's conduct was consistent with the threats which he had made earlier, both to the deceased's mother and to Mr Ironside, in which he said he would strangle her if she continued to associate with other men. As I have indicated, I also accept Mr Ironside's evidence that, at the time when he was aroused by the prisoner on 27 July 2004, one component of the mood he exhibited was anger. 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. 29 While the Crown put its case to the jury on the basis of all three components of the crime of murder, namely, an intention to kill or an intention to cause grievous bodily harm or a reckless indifference to human life, I am of the view that the prisoner, in the light of the threats he had made in the past and the vast physical difference between himself and the deceased, at least intended to cause her seriously 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 upshot of this finding is that, for the purposes of the Crimes (Sentencing Procedure) Act 1999, I find that the prisoner's culpability for this murder at least falls within the mid-range of crimes of murder. I so find for a number of reasons:- 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. It is for these reasons that I find that objectively this crime falls at least within the mid-range of crimes of murder and indeed somewhere at the higher end of that mid-range. 31 I turn to the subjective features relating to the prisoner. First, he is now aged thirty-two, having been born on 13 May 1974. Second, he does have a criminal record. However, as Dr Bishop correctly pointed out in his address to me, the matters on which he has been convicted do not involve crimes of violence and have never involved the imposition of a custodial sentence. Accordingly, for the purposes of this sentence I will disregard the prisoner's past criminal history. The prisoner had an upbringing which the psychologist, Keith Dawes, has described, in my view correctly, as tumultuous. His parents separated when he was but three and he lived from time to time with his father, his mother and an uncle and an aunt. The result of his movements, created by the prisoner living with these people, was that in his youth he attended schools principally in both Victoria and the Australian Capital Territory. He left school it seems at about the age of fourteen or fifteen. Over the years he has been employed in a number of unskilled occupations. It seems that it was some years prior to the prisoner killing his victim that he last worked. Both the prisoner and the deceased ingested illicit drugs. The prisoner told Mr Dawes that, over the past seven years, he had taken amphetamine, heroin, cocaine, cannabis, alcohol and prescribed drugs. I have taken fully into account, in determining sentence, the hardships suffered by the prisoner in his youth. 32 The prisoner has expressed remorse for his actions to police following his first record of interview, to the psychologist, Mr Dawes, and to Mr West, probation and parole officer who prepared the Pre-Sentence Report in the matter. However, my acceptance that the prisoner is truly remorseful for his actions is somewhat muted by the callous nature of the answer he gave in response to Q273 in his first record of interview which I have detailed above. Furthermore, after conviction he stated the following to Mr West : "He alleged on the night of the offence she had started an argument by admitting to being unfaithful to him as well as criticising him for his failure to provide adequately for their material needs. He stated that he felt angry and demeaned by what she was saying and had "just wanted her to stop". Consequently he put his hands around her neck, in order to achieve that result. He stated that he had taken the same action on past occasions with no permanent adverse result and that he certainly did not intend to kill her, commenting he did not consider he "had been holding her that hard". That is hardly the language of contrition. 33 In addition to relying upon the prisoner's difficult upbringing, Dr Bishop relied upon a number of mitigating factors. Those factors are to be found in s21A(3) of the Crimes (Sentencing Procedure) Act 1999 (herein after referred to as the Act). Those factors are as follows:- "(para (b)) the offence was not part of a planned or organized criminal activity." I agree with Dr Bishop that this is the case. If this crime had been premeditated it would fall into a category beyond the mid-range. I should also add that, if I had found that the prisoner intended to kill the deceased, I would also have categorised the crime as falling beyond the mid-range. "(para (c)) the offender was provoked by the victim." This is a claim made by the prisoner in his second record of interview. However, the fact is that in his first record of interview the prisoner lied about the events which led to the deceased's death. It may well be that the prisoner's attack upon the deceased followed a robust argument between the two of them. In view of the prisoner's lack of credibility I decline to determine, even on a balance of probabilities, that the prisoner's actions came about as the result of provocation by the deceased. Indeed, the more likely explanation is that the attack came about because of the prisoner's obsessive nature. I refer in particular to the evidence of Mr Hingston as to the control factors which the prisoner attempted to exercise over his daughter. In other words, I do not regard provocation as being a mitigating factor in this case. "(para (e)) the offender does not have any record (or any significant record) of previous convictions." I have already stated that I do not believe that the prisoner's previous criminal record is of any relevance in considering sentence in this matter. "(para (g)) that the prisoner was unlikely to re-offend." I accept that this is a matter to be taken into account. "(para (h)) that the prisoner has good prospects of rehabilitation." The prisoner's past history, particularly as to employment, does not give great support to Dr Bishop's submission. However, in taking into account his age, I will allow and have taken into account, that he has prospects of rehabilitation. "(para (i)) that the prisoner has shown remorse." I have already dealt with this aspect of the matter earlier in these remarks. As I said there, my acceptance that the prisoner is truly remorseful is somewhat muted by the actions to which I have already referred. "(para (l)) that the prisoner has given a degree of pre-trial disclosure." As Dr Bishop properly conceded, the first record of interview does not assist his submission that this aspect applies here. However, on the other hand, his second record of interview, and indeed the conduct of the trial itself, indicates a degree of disclosure which I have taken into account in passing sentence. Dr Bishop also submitted that the prisoner's willingness to plead to manslaughter is a matter I should take into account and cited Cameron v R (2002) 187 ALR 65 and R v Holten [2004] NSWCCA 214. Dr Bishop also submitted that what had fallen from the Court of Criminal Appeal in Holten and also in Cameron are matters which I should take into account. However, those case were cited as the law stood prior to the Crimes (Sentencing Procedure) Act 1999 coming into force and that Act, as I have already said, is applicable to this case. Therefore Holten and Cameron, indeed all the decisions of the Court of Criminal Appeal in relation to sentencing in cases of murder in particular, have to be read in the light of the passage of the Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as 'the Act'. Part 4 Division 1A and ss 3A, 21A, 54A, and 54B apply to the sentencing of the prisoner. I have already referred, in dealing with Dr Bishop's submissions on sentence, to the provisions of s21A dealing with mitigating factors. These sections require the court to determine firstly whether the offences were in the mid-range of objective seriousness. The reason why this is so is because that Act created the concept of standard non-parole periods in this State. The standard non-parole period is, under the legislation, applicable to offences which fall within the mid-range of objective seriousness of an offence. I have already found that the commission of this crime does fall well within the mid-range of objective seriousness. 34 The provisions of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 have been the subject of recent decisions of the Court of Criminal Appeal (see R v Way (2004) 60 NSWLR 168 and R v Pellew [2004] NSWCCA 434). In Pellew, Simpson J (who had been a member of the court in Way) summarised the following propositions emerging from Way and subsequent cases 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 s 21A makes clear." 35 As I have said, Dr Bishop relied upon a number of mitigating factors set out in s21A 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, I am of the view that the matters averted to by Dr Bishop in his submissions as to the applicability of s21A 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. The consequential additional period of the sentence, pursuant to s44 of the Act, is in my view sufficient for adequate supervision to be taken on by the parole service in relation to the prisoner's rehabilitation. 36 The deceased's mother read a Victim Impact Statement to the Court. The Court has every sympathy with the deceased's family and I well understand the pain which the family has suffered as a result of the killing of the deceased. However, the law does not permit the Victim Impact Statement to be taken into account on passing sentence (See s 28(4)(b) of the Act; R v Previtera (1997) 94 ACR76; Bollen v Regina (1998) 99 ACR 510). 37 The prisoner's sentence will date from the time he went into custody, namely, 27 July 2004. Accordingly, I sentence the prisoner to a non-parole period of twenty years, commencing on 27 July 2004 and expiring on 26 July 2024, when the prisoner will be eligible for release on parole. The additional term, in accordance with s44 of the Act, is of six years and eight months, commencing on 27 July 2024. ********** 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.