Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Versluys v R [2014] NSWCCA 98 Hearing dates: 19 May 2014 Decision date: 10 June 2014 Before: Simpson J at [1]; Hidden J at [2]; Hamill J at [3]. Decision: (1) Appeal allowed. (2) The sentence imposed by Newman AJ is quashed, and in lieu the appellant is sentenced to Imprisonment for 23 years and six months commencing on 27 July 2004 and concluding on 26 January 2028. There will be a non-parole period of 17 years and six months commencing on 27 July 2004 and concluding on 26 January 2022. The earliest date upon which the Appellant will become eligible for parole is 26 January 2022. Catchwords: CRIMINAL LAW - sentence - murder - appeal against sentence - Muldrock error - standard non-parole period - re-sentencing - new sentence imposed Legislation Cited: Crimes (Appeal and Review) Act 2001(NSW); Criminal Appeal Act 1912 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW): Cases Cited: Application by Lee Versluys pursuant to s 78 Crimes (Appeal and Review) Act 2001 unreported SC (NSW) (Latham J) 20 December 2013; Akkawi v R [2012] NSWCCA 11 Apps v R [2006] NSWCCA 290 Beldon v R [2012] NSWCCA 194 Carlton v R [2014] NSWCCA 14 Carr v R [2009] NSWSC 995 Kentwell v The Queen; O'Grady v The Queen [2014] HCATrans 113; Kentwell v R [2013] NSWCCA 266 Lee v R [2011] NSWCCA 169 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 391 O'Grady v R [2013] NSWCCA 281 R v Borg [2010] NSWSC 951 R v Cox [2009] NSWSC 1067 R v Douar [2005] NSWCCA 455 R v Edwards [2009] NSWSC 164 R v Fahda [2013] NSWCCA 86 R v Harvey [2007] NSWSC 871 R v Heffernan [2005] NSWSC 739 R v Holcroft [2010] NSWSC 1294 R v Jones [2010] NSWSC 432 R v O'Donnell [2009] NSWSC 42 R v O'Leary [2004] NSWSC 821 R v Palu [2002] NSWCCA 381 R v Pocock [2008] NSWSC 1435 R v Qutami [2001] NSWCCA 353 R v Shamouil [2009] NSWSC 24 R v Thompson [2008] NSWSC 109 R v Waters [2006] NSWSC 502 R v Way [2004] NSWCCA 131 R v Wong [2010] NSWSC 171 Rios v Regina [2012] NSWCCA 8 Versluys v R [2008] NSWCCA 76 Category: Principal judgment Parties: Appellant - Lee VersluysCrown Representation: I McLachlan (Appellant) N Norman SC (Crown) Solicitors: Legal Aid NSW(Appellant)Solicitor of Public Prosecutions (Crown) File Number(s): 2013/214339 Publication restriction: Nil Decision under appeal Citation: Unreported remarks on sentence. R v Versluys v R [2008] NSWCCA 76 Date of Decision: 2006-03-24 00:00:00 Before: Newman AJ File Number(s): 2005/839 Judgment 1Simpson J: I agree with Hamill J. 2Hidden J: I agree with Hamill J. I doubt that it is necessary to make a finding of special circumstances simply for the purpose of rounding off the length of the non-parole period. 3Hamill J On 27 July 2004, Lee Versluys (the Appellant) murdered his de facto partner, Jodie Lee Hingston, by strangling her. On 21 November 2005, he was arraigned and pleaded not guilty to murder. On 1 December 2005 a jury found him guilty of murder. On 24 March 2006 he was sentenced by Newman AJ to a non-parole period of 20 years, commencing 27 July 2004 and expiring on 26 July 2024. An additional term (or balance of term) of six years and eight months is to commence on 27 July 2024. 4He appealed against his conviction and sought leave to appeal against his sentence. On 3 April 2008 this Court, differently constituted, dismissed the conviction appeal, granted leave to appeal against the sentence but dismissed that appeal: Versluys v R [2008] NSWCCA 76. 5On 20 December 2013, Latham J made an order under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 referring the case to this Court to be deal with as an appeal under the Criminal Appeal Act 1912: Application by Lee Versluys pursuant to s 78 Crimes (Appeal and Review) Act 2001, unreported SC (NSW) (Latham J) 20 December 2013. As I understand the judgment of R A Hulme J in Carlton v R [2014] NSWCCA 14, the requirement for leave is obviated when the case comes to the Court following a referral under Part 7 of the Crimes (Appeal and Review) Act. 6There is no issue surrounding the conviction. The basis upon which Latham J ordered the referral, and the sole ground of appeal advanced on behalf of the Appellant, is that the sentencing proceedings miscarried because Newman AJ (and in turn this Court) 'erred in the application of the standard non-parole period legislation'. 7It is common ground between the parties, and it was the opinion of Latham J, that this ground is established or, at least, "well founded": per Latham J at [8]. 8Both the sentencing Judge and this Court applied the law relating to the standard non-parole period in s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as it had been expressed and explained in the decision of this Court in R v Way [2004] NSWCCA 131, 60 NSWLR 168. 9In Muldrock v The Queen [2011] HCA 391, 244 CLR 120, the High Court held (at [25]) that R v Way was wrongly decided and that "it was an error to characterize s 54B(2) as framed in mandatory terms". A sentencing judge is not required to commence by asking "whether there are reasons for not imposing the standard non parole period". 10The High Court held (at [26]) that the introduction of the standard non-parole period did not involve a departure from accepted sentencing principles whereby: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." See, for example, Markarian v The Queen [2005] HCA 25, 228 CLR 357 at 378. 11Further, the High Court rejected (at [28]) "a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period". 12Since the decision in Muldrock v The Queen this Court has been called upon to deal with a number of cases in which it is either alleged or established that what has come to be known as 'Muldrock error' caused the sentencing proceedings to miscarry. Two such cases have been subject of successful applications for special leave to appeal to the High Court: see Kentwell v R [2013] NSWCCA 266; O'Grady v R [2013] NSWCCA 281; Kentwell v The Queen; O'Grady v The Queen [2014] HCATrans 113. The parties are agreed that nothing in those cases is likely to impact on the resolution of the Appellant's appeal. 13The present case provides a particularly stark example of the kind of error discussed by the High Court in Muldrock v The Queen. At [33] through to [35], the sentencing Judge referred to the decision in R v Way and concluded (at [35]): "[H]owever applying what fell from the Court of Criminal Appeal in Way, I am of the view that the matters adverted to by [defence counsel] in his submissions as to the applicability of s 21A 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 [defence counsel] in mitigation that I therefore propose to apply that standard non-parole period." 14It is clear from this passage that the learned sentencing Judge fell into error. The Respondent properly concedes that this is so. In fairness to his Honour, he was applying the law as it was understood to be in the light of this Court's decision in R v Way and subsequent cases. 15I am of the opinion that the error was of such a fundamental nature that the sentence actually imposed by Newman AJ should not in any sense be used as a yardstick in determining whether, as the Respondent submits, s 6(3) of the Criminal Appeal Act 1912 should be invoked. It is the task of this Court to determine what an appropriate sentence is, taking into account the findings as to the objective gravity of the crime which were made by the learned sentencing Judge (none of which have been challenged on this appeal). It is also necessary to take into account all relevant mitigating circumstances as they existed at the time, but also any additional subjective features of the case which have been established in evidence before this Court: see, for example, R v Douar [2005] NSWCCA 455, 159 A Crim R 154 at [124]. 16In terms of the objective gravity of the crime, it is necessary to restate the facts as they were found by Newman AJ at [28-30]: "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. 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." 17Having made those findings of fact his Honour went on (at [30]) to find that the following features of the case enhanced its objective seriousness: (a)" Strangulation is a particularly horrible way for a person to die. The process as l have said must have taken some minutes, minutes in which the deceased must have been terrified and suffering great pain. (b)The [Appellant] had in the past threatened to do exactly what he did do. (c)The vast physical difference between the [Appellant] and the deceased makes this a most cowardly crime". 18Whether the first of those matters was supported by evidence is unclear to me, but the finding is not challenged by counsel for the Appellant. To come to a conclusion as to an appropriate sentence, it is necessary to bear in mind a number of the facts of the case. 19First, the Appellant is not to be sentenced on the basis that he had an intention to kill. While the finding that he "at least" intended to inflict grievous bodily harm is ambiguous, this Court held that "it follows from his Honour's finding of an intention to cause grievous bodily harm that his Honour did not find that there was an intention to kill": Versluys v R [2008] NSWCCA 76 at [31]. The Appellant sought medical help for the victim by calling '000' telling the operator "I strangled her" and "she seems to be choking on her own spew". That act is not consistent with an intention to kill. In Apps v R [2006] NSWCCA 290 Simpson J (at [49]) said: "Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way, while the Court expressly alluded to mental states, followed this by the parenthetical observation that "intention is more serious than recklessness". However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct." 20Secondly, the sentencing Judge found that the offence was not pre-meditated and was not part of a "planned or organized criminal activity". While this mitigates the objective gravity of the crime, its impact is reduced by the fact that the murder was committed in the context of a violent domestic relationship and in circumstances where there was evidence of an assault by the Appellant on the victim some weeks before and also evidence that he had threatened her in the weeks leading up to the tragic incident. 21While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill. 22The appellant is now forty years of age. He was thirty at the time of the murder. He had a very minor criminal history and had committed no prior offences of violence. 23Before Newman AJ, the Appellant relied on a report by a psychologist, Keith Dawes, which set out a number of difficulties the Appellant had experienced in the course of his life. He and his sister were physically abused as children and the Appellant spent time at a boys' home on more than one occasion. He had been beaten and "locked in a cupboard" as punishment for misbehaviour. Mr Dawes described his upbringing as "tumultuous" and was of the opinion that his "behaviour is consistent with an emotional sensitive boy living under duress". He had been "dumped" many times by his parents. By the time that he killed Ms Hingston, he had developed an addiction to heroin. 24While the history provided to Mr Dawes was not given on oath by the Appellant (cf Qutami [2001] NSWCCA 353, 172 A Crim R 368; R v Palu [2002] NSWCCA 381, 134 A Crim R 174), it does not appear to have been disputed and the sentencing Judge seems to have accepted it. 25Newman AJ concluded that the Appellant was unlikely to re-offend and had good prospects of rehabilitation. His Honour also took into account the admissions that the Appellant had made and the extent to which his conduct of the trial reflected a 'degree of disclosure' for the purposes of s 21A(3)(l) Crimes (Sentencing Procedure) Act. 26His Honour held that the Appellant's remorse was 'muted' in the light of some particularly callous remarks he had made about the victim in the aftermath of the killing. The Appellant provided further evidence of remorse on the hearing of the appeal. The Respondent accepts that amendments to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, which came into effect in 2008, do not apply to this appeal. While I am prepared to accept that the applicant is now sorry, not much turns on this feature of the case in light of his comments about the deceased at the time of her murder. 27In addition to material in existence at the time of sentence, the Appellant also relied on three affidavits prepared for this appeal. The Respondent also relied on an affidavit which annexed reports concerning some incidents in gaol that caused the Appellant to be disciplined. It is not necessary to refer in detail to this material. However, the picture that emerges is that the Appellant had a very difficult time for his first few years in gaol. He gained an enormous amount of weight and struggled with his addiction problems. The disciplinary problems are largely of a minor nature. 28More recently, the Appellant has made attempts at completing his high school education and has completed some courses directed towards his rehabilitation. He has not used drugs in gaol, has completed a methadone programme and looks forward to participating in further drug rehabilitation when his classification allows him to do so. He has lost a substantial amount of weight. His mother has observed "significant positive changes" in the Appellant. 29Counsel for the Respondent points out that this evidence really does little more than to show that the predictive assessment made by Newman AJ in 2006 was correct. While I accept that submission, the Appellant is entitled to have the positive steps that he has taken while in custody into account in an assessment of the appropriate sentence. 30The Respondent also submitted that the material in the Appellant's subjective case was "not compelling". Whether or not one applies that description to the Appellant's personal (or subjective) case, it is certainly a moving and powerful one. It should be given appropriate weight in the complex of circumstances to be taken into account in reaching a just and appropriate sentence. 31Of course, nothing in the Appellant's subjective case can overcome the terrible nature of his crime. I have read the victim impact statement that was read in Court on 20 March 2006 by the victim's mother, Debbie Hingston. It is a moving and distressing description of the devastation and grief that the Appellant's crime has caused to the family and loved ones of the victim. 32There is no "single correct sentence": see, for example, Markarian v The Queen (supra) at [27]. 33The Respondent submitted that sentences for murder have increased since the introduction of the standard non-parole period. This is borne out by an analysis of the cases decided before and after the introduction of the standard non-parole period and also in a report prepared by the Judicial Commission which was annexed to the Respondent's submissions. 34To ensure consistency of punishment I have considered the statistics maintained by the Judicial Commission although it is difficult to gain much insight from those in view of the diversity of cases that are represented in the database. 35I have also considered the sentencing outcomes in a number of cases decided since the introduction of the standard non-parole period of 20 years. In doing so I have attempted to focus on cases where there was no intention to kill and/or no premeditation. See R v O'Leary [2004] NSWSC 821; R v Heffernan [2005] NSWSC 739; Apps v R [2006] NSWCCA 290; R v Waters [2006] NSWSC 502; R v Harvey [2007] NSWSC 871; R v Thompson [2008] NSWSC 109; R v Pocock [2008] NSWSC 1435; R v Shamouil [2009] NSWSC 24; R v O'Donnell [2009] NSWSC 42; R v Edwards [2009] NSWSC 164; Carr v R [2009] NSWSC 995; R v Cox [2009] NSWSC 1067; R v Wong [2010] NSWSC 171; R v Jones [2010] NSWSC 432; R v Borg [2010] NSWSC 951; R v Holcroft [2010] NSWSC 1294; Lee v R [2011] NSWCCA 169; Beldon v R [2012] NSWCCA 194; R v Fahda [2013] NSWCCA 86. None of those cases are on all fours with the Appellant's case. However, a review of the cases satisfies me that the sentence that I consider to be appropriate does no violence to principles of consistency of punishment. 36I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act as well as the principles of sentencing established at common law and under relevant legislation. I have taken into account the standard non-parole period of 20 years and the maximum penalty of life imprisonment. These guideposts reflect the fact that the law contemplates no crime more serious than murder. 37In all of the circumstances, I have concluded that a total sentence of 23 ½ years should be imposed. For the sake of transparency, and without engaging in an erroneous mathematical exercise, I record that I considered 24 years to be an appropriate starting point but reduced that to give effect to the finding of Newman AJ that the Appellant deserved some benefit for the utilitarian value of the 'degree of disclosure' encompassed by his admissions and conduct of the trial. The non-parole period will be 17 years and 6 months. I have rounded this down from 17.625 years which would result from a mathematical application of s 44 Crimes (Sentencing Procedure) Act: cf Rios v Regina [2012] NSWCCA 8 per Adamson J at [42]-[43] and Akkawi v R; Akkawi v R [2012] NSWCCA 11 per Simpson J at [101]-[102]. If necessary, I find "special circumstances" for the purpose of making that slight adjustment to the length of the non-parole period. I am not otherwise persuaded that there are "special circumstances" justifying a further reduction in the non-parole period. In assessing the appropriate total sentence, I have taken into account the matters said to constitute "special circumstances". A period of six years should be ample for the Appellant to re-adjust to life in the community. 38Accordingly, the orders that I propose are as follows: (1)Appeal allowed. (2)The sentence imposed by Newman AJ is quashed, and in lieu the appellant is sentenced to Imprisonment for 23 years and six months commencing on 27 July 2004 and concluding on 26 January 2028. There will be a non-parole period of 17 years and six months commencing on 27 July 2004 and concluding on 26 January 2022. The earliest date upon which the Appellant will become eligible for parole is 26 January 2022. ********** 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. Decision last updated: 11 June 2014