DPP v Williams
[2014] VSC 304
•27 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL JURISDICTION
S CR 2013 0189
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELA MAREE WILLIAMS |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-28 & 31 March, 1-4, 7-9 April, 23 May 2014 | |
DATE OF SENTENCE: | 27 June 2014 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 304 | |
---
CRIMINAL LAW – Sentencing – Defensive homicide – Accused struck partner multiple times with axe to head and neck – Body buried in backyard – Accused lied as to deceased’s whereabouts for more than 4 years – Long history of family violence by deceased – Good prospects of rehabilitation – No prior convictions – Sentenced to 8 years’ imprisonment with non-parole period of 5 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Solicitor for Public Prosecutions |
| For the Accused | Mr L Hartnett Ms K Blair | Bowman & Knox Lawyers |
HER HONOUR:
Angela Maree Williams, you were charged with the murder of your partner, Douglas Kally, between 10 and 24 July 2008. After a trial, a jury found you not guilty of that charge, but guilty of the alternative offence of defensive homicide.
At the time of his death, you and Mr Kally had been in a relationship for 23 years. You had two children together, Spencer (who was born in 1988) and Simone (who was born in 1992).
There is no dispute that you killed Mr Kally between 10 and 24 July 2008, although the precise date is unknown. You killed Mr Kally in the bedroom of your family home at McDonald Street, Indented Head. Using a pick axe, you struck Mr Kally to the back of the head and neck area 16 times, causing eight penetrating depressed skull fractures, and bleeding and swelling in the brain. The forensic pathologist who performed the autopsy could not say whether any particular blow was fatal, but Mr Kally would have been rendered unconscious and died within a relatively short period of receiving the blows.
There is no dispute that one morning during that period, you drove to the home of your mutual friend, David Grainger, and told him you had had an argument with Mr Kally, who had asked you to drop him off at the train station, after collecting some money which he had hidden, so he could go and live in Kiama, NSW, which was his favourite fishing spot. Later that day, you sent a message to the children at school, telling them to come to Mr Grainger’s house that evening. You and the children stayed at Mr Grainger’s house for the next three or four days.
The prosecution alleged that you never dropped Mr Kally at the train station, and had already killed him after an argument the night before you went to Mr Grainger’s. However, you told police in your record of interview that you did drop Mr Kally at the train station, and only killed him a few days later, when you went home early one morning and found he had returned unexpectedly. You said you killed him after a fight that morning.
For the purpose of sentencing you, counsel agree it is not necessary for me to resolve the precise date, or time of day, when Mr Kally was killed.
Within a day or so of killing Mr Kally, you wrapped his body in a tarpaulin, taped it up, fastened some rope to the body, and dragged it into the back yard. There, you dug a shallow hole and buried him in it. You then cleaned the blood from the bedroom, and disposed of the mattress and the pick axe.
You told family and friends a series of lies about Mr Kally’s whereabouts, in order to cover up what you had done. While there were some differences in the accounts you gave, the general gist of what you said was this: that Mr Kally had gone interstate; and that he had asked you and the children to move there with him, but you did not want to go for various reasons.
A few months later, when you were at a social event at Mr Grainger’s house, you staged a telephone call to your mobile phone, which you pretended was from Mr Kally. You went into the bedroom for about half an hour, purporting to be in conversation with Mr Kally. When you returned to the group, you said that Mr Kally had invited you again to join him in Kiama, but you had declined.
On another occasion, just before Spencer’s 20th birthday in September 2008, you gave him a surf watch that had belonged to Mr Kally. You said that Mr Kally had sent the watch by post, from Kiama, as a birthday present for Spencer.
You repeated your lies concerning Mr Kally’s whereabouts to the police, when they took a statement from you in October 2008.
Because Mr Kally had been in such infrequent contact with his own family, because they feared he mixed with unsavoury characters through his drug-dealing activities, and because he had walked out on at least one previous partner and children, after a few initial queries as to his whereabouts, at least some of his family members seem to have accepted the story that he had gone interstate. The phone call and surf watch incidents seem to have removed any residual doubts among your mutual friends.
You persisted with those lies until December 2012, more than 4 years after you had killed Mr Kally. By November 2012, the police had started actively reinvestigating Mr Kally’s disappearance. On 16 December, an investigating officer attended at the house where you were then living, and spoke to you and the children. In the following days, the police took formal statements from Simone and Spencer, and spoke to your father. Then, on 20 December 2012, at your father’s suggestion, you rang the lead investigator and told him you would come to the police station the following day.
In your record of interview on 21 December 2012, you admitted striking Mr Kally repeatedly with the axe in the bedroom, after a fight. You also made full admissions about how you disposed of his body and tidied up afterwards. You repeated the account of having dropped Mr Kally at the train station, and then staying with the children at Mr Grainger’s for a few days. You said that you had driven home early one morning, and found Mr Kally in his pyjamas in the bedroom.
You gave the following account of the fight which led to his death. As soon as you walked into the house, Mr Kally was yelling and screaming abuse at you. He called you a slut, and accused you of sleeping with Mr Grainger. He pushed and shoved you, punched you in the chest, pulled your hair, hit you and knocked you down a few times. You kept telling him to stop, to leave you alone, but he would not stop. So you grabbed a pick axe from behind the bedroom door, where various tools were kept. He was goading you, yelling things like “Go on. Do it. Do it. Like that, you fucking fat slut.” You said you felt in danger for your life, and did not think you had any other options open to you to defend yourself. You struck him repeatedly with the axe to the head – you didn’t know how many times. Then you left him there lying on the bed, and went back to Mr Grainger’s house.
You co-operated with police in a video re-enactment at the McDonald Street house, as well as taking them to the beach where you said you had disposed of the axe. Police dug in the area of the backyard that you had identified, and found Mr Kally’s body wrapped and taped in tarpaulin, in the manner you had described.
In your record of interview, you mentioned family violence. When asked whether the children heard you arguing the night before Mr Kally left, you said “[The kids] always heard us arguing. And Doug hitting me and stuff like that. And kicking the kids sometimes. It’s been happening for 23 years.” You said the children had seen Mr Kally hitting and fighting with you before, “so to them it’s probably not unusual. It always happened.” And, asked why you reacted the way you did on this occasion, you said “I’m sick of him beating me up. And hitting me. He’s threatened me all the time.” The police did not ask you to provide details of any past family violence.
Simone and Spencer also gave evidence at trial of physical violence and threats by Mr Kally, towards both you and them.
The prosecution conceded that Mr Kally was not an ideal partner, but urged the jury to find that there was only limited family violence. However, in coming to the verdict which they did, the jury must have been satisfied that the killing took place in the context of a history of family violence which was considerably more serious than the prosecution suggested. Without a more serious history, your account of the events in the bedroom leading up to the killing would not have been sufficient to create a reasonable doubt about whether you believed you were acting in self-defence.
There is no evidence that you or the children had ever complained to anybody about family violence, before Mr Kally “disappeared”. But the lack of complaint is not uncommon in cases of family violence. Family violence, by its very nature, often occurs behind closed doors. Outsiders, even close friends and family, may not be aware what is going on within a relationship. Family violence is not limited to physical abuse; it also includes sexual abuse and various forms of psychological abuse, including intimidation, harassment, damage to property, and threats of abuse. A number of acts that form a pattern of behaviour may amount to abuse, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
After July 2008, you did tell some people that Mr Kally had been violent and abusive towards you. For example, you told Mr Grainger (with whom you started a relationship after Mr Kally’s death), Mr Kally’s sister, Elizabeth Dordevic, and your father, Ralph Williams.
In your initial statement to police in October 2008, you said that Mr Kally could be violent when he drinks and uses drugs; on occasions, he would scream and yell, punch walls, push people around or grab them violently. You said: “To be honest he could go over the top with me and the kids, but it didn’t happen all the time.” But you did not go into any details at that time.
On the other hand, in their initial statements to police, given in December 2012, both Simone and Spencer said that, although there were arguments between their parents, they were not aware of any violence between them. They gave a very different account in their evidence at trial, painting a fairly dramatic account of family violence by Mr Kally against you and against them.
I have no doubt that both Simone and Spencer tailored some aspects of their evidence at trial, particularly in relation to the last time they say they saw or heard Mr Kally alive, in order to shore up each other’s evidence and assist you. I am also satisfied that they exaggerated to some degree in their accounts of the nature and extent of the family violence within the home. But it does not follow that I reject their evidence entirely, or that I am not satisfied that family violence did in fact occur.
The following matters relevant to family violence are not in dispute:
(a) You met when you were 17, and Mr Kally was 25 years old. He was your first sexual partner, and it was your first serious relationship. He seems to have been the dominant, controlling party throughout the relationship;
(b) You had few friends, did not work outside the home after the first few years with Mr Kally, and were heavily dependent on Mr Kally;
(c) Mr Kally was a very heavy drinker. He, Mr Grainger, and some other friends would often sit around drinking for hours at a time. There is plenty of evidence that Mr Kally used to belittle you, abuse you, and call you derogatory names (such as “slut”), in front of other people, particularly when he had been drinking;
(d) Mr Kally had a long history of inflicting serious physical violence against a number of other people. That violence included sexual aggression against at least one woman. He clearly had problems controlling his temper and his behaviour;
(e) You rarely drank alcohol. Once you got your driver’s licence, Mr Kally would expect you to drive him around when he had been drinking, including sometimes demanding that you come out late at night to pick him up after a heavy drinking session;
(f) Mr Kally had, for many years, used and sold marijuana. There was an occasion when drugs were located in the family home. Because he already had two convictions for drug dealing, and would have faced a sentence of imprisonment if he received another, he persuaded you to “take the rap” for him; so, you had a conviction recorded against you, instead of him. This is further evidence of the extent to which you were under his control;
(g) Mr Kally had, on occasions, punched or kicked holes in the walls of the family home, in his anger.
I also accept that he was, over a long period, physically violent towards you and the children, in the sense of pushing and shoving you; he would also abuse and threaten you all. However, it is not possible, or necessary, for me to make definitive findings about the totality of Mr Kally’s physical or other family violence towards you or the children. I am satisfied that his behaviour towards you, over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse.
The maximum penalty for defensive homicide is 20 years’ imprisonment.
The prosecution says that this offence is towards the upper middle range of seriousness for the offence of defensive homicide. That is because of the number and nature of blows inflicted by you, as well as the presence of several aggravating features. Your counsel says that this was very much at the lower end of the offence.
In finding you guilty of defensive homicide, the jury must have been satisfied beyond reasonable doubt that:
(a) When you hit Mr Kally with the axe, you intended to kill or cause really serious injury to him; and
(b) You did not have reasonable grounds for believing that it was necessary to do what you did to defend yourself from a threat of death or really serious injury.
In assessing the seriousness of a defensive homicide, courts have usually looked at the degree of disproportion between the perceived threat or violence and the offender’s response to it. However, there are problems in applying that principle too strictly in cases involving family violence, for the following reasons.
Firstly, the family violence legislation[1] itself expressly provides that a person in a family violence situation may believe, and may have reasonable grounds for believing, that their conduct is necessary to defend themselves, even if they are responding to a harm that is not immediate, and even if their response involves the use of force in excess of the force involved in the harm or threatened harm.
[1]Section 9AH of the Crimes Act 1958.
The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased.
Secondly, in this case, the court heard detailed (and largely unchallenged) evidence from Professor Patricia Esteal, an academic and author. Since the late 1980s, she has conducted research, taught and written extensively on family violence, partner rape, and women who kill their violent partners. She gave evidence about the complex and varied manifestations and dynamics of family violence, and the reasons why women often do not leave their violent partners.
Professor Esteal also spoke about the use of weapons by female victims of family violence against their male partners. Her research shows that women in such a situation traditionally do not use the same weapon as their male attacker. A man usually uses his hands or his body, his physical force, against his female partner; whereas a woman invariably uses a weapon (including guns, knives and axes), out of fear that she would be likely to be overpowered and hurt even more by him if she only used her hands or body. It is also not uncommon in those cases for the woman to inflict multiple strikes with a knife or sharp instrument – substantially more strikes than may, objectively, have been required to incapacitate the man.
Given Professor Esteal’s evidence, it may not be appropriate in a case such as this one to assess the objective seriousness of the offence primarily by reference to the degree of disproportion between the perceived threat or violence from the male partner and the woman’s response to it.
In a case of violence between men, particularly between men with little or no prior history, the infliction of 16 blows with an axe in response to a verbal and minor physical attack by an unarmed attacker may rightly be seen to be so totally disproportionate as to make it a very serious example of the offence. That may not necessarily be the right conclusion in a case involving family violence, particularly with a female offender.
It does not appear that evidence or arguments such as these were considered in the other defensive homicide cases which involved female offenders and their male victims, in a family violence context.[2]
[2]R v Creamer [2011] VSC 196; R v Black [2011] VSC 152 (on appeal: Black v R [2012] VSCA 75); R v Edwards [2012] VSC 138.
Nevertheless, there are several, serious, aggravating features in this case. The first is that you wrapped up and buried Mr Kally’s body in the backyard, and kept it hidden there for many years. Even if you initially did that out of a sense of fear or panic, you were acting to conceal his body and protect yourself from discovery. It also demonstrates a lack of remorse for what you had done.
The other aggravating feature is that, for more than four years after you had killed him, you persisted with an elaborate series of lies about Mr Kally having run away and abandoned his family. Those lies also demonstrate a lack of remorse, and a desire to protect yourself. Furthermore, to make it seem that Mr Kally had selfishly and uncaringly abandoned his family and friends, for his own personal gratification, was likely to cause additional grief and distress to those who loved him.
Before considering your personal circumstances, I want to say something about the effect your actions have had on others. Victim impact statements have been provided by Mr Kally’s father and some of his siblings. A victim impact statement has also been provided by one of Mr Kally’s daughters from a relationship that he had before he met you. Even though many of them had little contact with Mr Kally over the years before his death, his family member still feel a great sense of grief, loss and anger over what happened to him, and the violent way he died. They also feel sad that they have lost their relationship with Simone and Spencer, who have sided with you rather than Mr Kally. In some cases, their grief is mixed with regret or guilt for not having spent more time with Mr Kally, or offered him more help, while he was alive.
You were born in November 1968, the youngest of three children. You grew up with your family in various parts of Melbourne and the Bellarine Peninsula. You attended local schools, dropping out shortly after the start of year 12.
When you were only 8, your then 14 year old brother, Vincent, drowned on a family duck shooting expedition; you could hear him calling out as he drowned. The event traumatised your family. There was an occasion, just prior to Vincent’s funeral, when your father was so distraught that he fired shots at the car in which you, your mother, and remaining brother, Jason, were sitting. You still experience flashbacks from that incident.
After Vincent’s death, you became much closer to Jason. He died as a result of a motorcycle accident in Western Australia, when you were 20 and he was nearly 25 years old.
You have also suffered psychological trauma from observing a friend commit suicide, and from the death of your mother.
After leaving school, you worked for a few months in a shop, and then for about 2 ½ years in a lingerie factory. Spencer was born when you were 21, and Simone two years later. You had stopped working outside the home by this stage.
Except for the occasion when you took the blame for Mr Kally’s marijuana found in the family home, you have never been in any trouble with the police.
After Mr Kally’s death, you started working as a cashier at the IGA supermarket in Portarlington; you continued working there until the time of your arrest.
Although you have been treated in the past for depression, post-traumatic stress disorder and attention deficit disorder, there is no suggestion that they played any role in this offending, or otherwise give rise to Verdins considerations.
In sentencing you, I have had regard to the fact that, since at least November 2013, you made a number of offers to plead to defensive homicide, which were rejected by the prosecution. That involves some acceptance of responsibility for your actions, albeit after many years of lying about what had happened.
You have good prospects of rehabilitation. Apart from this offending, you have been of good character. You still enjoy the support of your father and children. You have no history of alcohol or drug abuse, and have shown a willingness and capacity for gainful employment. Currently, you are working in a responsible and trusted position, at the front office of the Dame Phyllis Frost prison. There is no need for specific deterrence in this case, as you are highly unlikely to offend again.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, and current sentencing practices for the offence of defensive homicide, I sentence you to imprisonment of 8 years. I fix a period of 5 years as the period you must serve before becoming eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 554 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
---
5
4
2