R v Cleverly - [2004] NSWSC 1279

No judgment structure available for this case.

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:

12 The two brothers Richard and David in due course extricated themselves, and the police were called. Somewhat surprisingly, David thought he could identify one of the culprits, even through the balaclava. It was a friend of the prisoner's, called Khalid Morton. The police then approached Mr Morton, and he admitted that the whole enterprise had been devised by the prisoner and himself. Mr Morton and one of the other intruders gave evidence for the Crown in the present case as to the prisoner's active involvement both in the planning and the execution of this crime.

13 Following this incident the prisoner was again taken into custody. As at today, he has been in custody for a total of 22 months and eight days.

14 The prisoner has always denied killing Susan Smith. He gave evidence at his trial in which he again asserted that he found the body of the deceased before Margaret Smith came home. He denied that any of the I2 correspondence emanated from himself with the exception of the letter left after the home invasion on 6 August 2003. He admitted his involvement in that invasion, saying that he was panicking because of a forthcoming bail review, and he was concerned to prove to the authorities that there really was a person calling himself I2 who was hostile to the Cleverly family.

15 On 17 August 2004, as already indicated, the jury found the prisoner guilty of murder. Subsequently he signed a form under section 32 of the Crimes (Sentencing Procedure) Act 1999, in which he admitted to two offences relating to the home invasion on 6 August 2003, and asked that they be taken into account in sentencing him for the offence of murder. Those offences are:

16 First, an offence pursuant to s.319 of the Crimes Act 1900 that he did an act, to wit plan, organise and take part in an aggravated break, enter and steal at 112 Constitution Road intending to pervert the course of justice.

17 Secondly, an offence pursuant to s.86 (2)(a) of the Crimes Act that he, without consent, detained David Cleverly with the intention of obtaining an advantage, to wit, to legitimatise fabricated evidence to assist Richard Cleverly in a judicial proceeding, while he, Richard Cleverly, was in the company of Khalid Morton.

18 With this background, I turn to look at the prisoner's subjective features. He is still very young - not yet 21 years old, having been born on 12 January 1984. He was only 18 when he killed his aunt. His adult life had barely begun. The prisoner is the eldest of three boys. His parents separated when he was about 10 years old. His father moved to Queensland, and he lost contact with him for a number of years. He was brought up primarily by his mother. As she worked full time in a legal office in the City, much of his care was apparently undertaken by his maternal grandparents, with whom he was apparently very close. Both these grandparents died earlier in 2002; his grandmother in January, and his grandfather on 25 June, only eight days before the murder of Susan Smith.

19 The prisoner's childhood was fairly uneventful, although one incident occurred when he was twelve in which he displayed such extreme physical violence to a garage on his mother's property that she apparently reported the matter to the police and sought an apprehended violence order against him. He studied at West Ryde Public School and then at Epping Boys High School. His schooling was unremarkable. He was a reasonably good student and performed in the average to above average category. He was planning to complete his High School Certificate in 2001 and then undertake a Computer Engineering course at the University of Western Sydney. He had a longstanding relationship with his girlfriend, Beth, and got on extremely well with her parents. He and Beth had been living together for about 15 months before the murder of Susan Smith.

20 In May 2001, the prisoner sustained a severe closed head injury when he fell from a ladder at work. An MRI scan showed only very minor abnormalities, so he was discharged from hospital. However, it later became clear that he had suffered serious deficits as a result of this accident. His Year 12 results were disastrous. He was given special consideration for his HSC because of the accident, but was unable to complete the first semester of his university course. Psychological tests administered later in 2001 showed him performing at a level significantly lower than his pre-accident level in virtually all respects. His girlfriend, Beth, described him as having an explosive temper after the accident.

21 The prisoner has undergone further psychological testing over recent times for the purpose of this sentencing.

22 In summary, these tests show that his functioning has improved since the immediate aftermath of the head injury but he still suffers real intellectual, cognitive and memory deficits. These are, on all accounts, attributable to frontal lobe damage sustained in the accident of May 2001.

23 No personality disorder has been discerned in the prisoner, nor is there any finding of psychiatric illness, although it has to be said that no psychiatric report has been tendered. Dr Christopher Lemmings, a clinical psychologist, who saw him on 7 November 2004 noted that the prisoner's cognitive impairments were not such as to account for his behaviour. However he thought it likely that his cognitive impairments were also reflective of an impairment in emotional functioning. Such impairment may or may not have contributed to the offence, according to Dr Lemmings. He continued in his report and I quote:

“What is certain, however, is that Mr Cleverly would have been experiencing significant disruption of judgment at the time even if he had not been under stress.”

24 The prisoner continues to deny his responsibility for this offence, despite the very considerable strength of the Crown case. This effects his sentencing in two respects: First, it means that he cannot call upon remorse as mitigating the seriousness of the offence.

25 Secondly, it makes it very difficult to discern what it was that led him to commit this extreme act. On all accounts, he got on well with his two aunts. Indeed, on his own account, he related much better with Susan than he did with Margaret. The only possible motive which arose from the evidence was the suggestion that the prisoner might make an indirect financial gain from the death of Susan Smith. Indeed, given that the only things missing from the house after the killing were the two wills of Susan and Margaret Smith, and that the prisoner's palm print was found on the tin in which they had previously been contained, this hypothesis emerges as the only realistic explanation for this killing. It presents an extremely chilling picture, particularly as any financial benefit the prisoner might have hoped to gain through his aunt's death could only have been, at best, indirect, through his mother.

26 There are no mitigating features in the objective circumstances of this offence. This was, as the Crown submitted, a senseless killing of a vulnerable family member in what should have been the security of her own home. It was clearly premeditated; the prisoner took with him the necessary tools to break open the electricity box, so that he could attack his aunt in darkness. Nor was it a botched attempt to commit a lesser offence. The prisoner's intention when he strangled his aunt could have been nothing less than to kill her. Moreover, the prisoner displayed no apparent signs of distress or disturbance after the event. According to the evidence of his girlfriend, he returned home immediately after the killing, had a shower, and generally presented in a calm, normal manner, as he did any other evening of the week.

27 When questioned by the police he denied being anywhere near his aunt's home that day. One can only infer that the account he gave several days later, namely that it was he who had first found his aunt's body, was manufactured in an attempt to explain the forensic links between himself and the scene.

28 In the end, I must agree with the learned Crown prosecutor's submission that this offence falls at the higher end of the range of objective seriousness for murder.

29 There is no suggestion, however, that this is a case which calls for the maximum penalty of life imprisonment within the terms of s.61(1) of the Crimes (Sentencing Procedure) Act. The Crown prosecutor did not seek such a penalty, and it is clearly not called for here, serious as this case is.

30 I have considered the terms of section 21A(3) of the Crimes (Sentencing Procedure) Act and indeed of section 21A(2). There are few mitigating features in relation to this prisoner. His youth is clearly a matter to be taken into account on his behalf. So is the fact that he had no prior criminal record; although this cannot be afforded any major significance, given his youth and the extreme seriousness of this offence. I also take into account on his behalf the effects of the brain injury that he sustained the previous year. I have already referred to this matter. I accept that at the very least, it affected his judgment when he committed this offence. However, given the seriousness of the objective features of the offence, this cannot be regarded as a major ameliorating feature according to the evidence.

31 I cannot say, within the terms of section 21A(3)(h) that the prisoner has good prospects of rehabilitation, notwithstanding that he is still very young. In this regard, the Crown prosecutor referred to the prisoner's attempts to lay a false trail by means of the mythical I2 culminating in the home invasion 13 months after the killing. The home invasion, of course, will be taken into account under section 32. The Crown rightly concedes that the prisoner's other attempts to deflect attention away from himself cannot be used as an aggravating feature. However the fact that he embarked on a lengthy and calculated plan to lay a false trail is, as the Crown prosecutor submits, and in my view correctly, relevant to his prospects of rehabilitation.

32 Given the absence of any apparent remorse on the part of the prisoner, combined with the essentially senseless nature of this killing, and the absence of anything in the psychological reports to explain how he could have deliberately and cold-bloodedly set out to kill his aunt, it is very difficult to assess the extent, if any, to which this man will pose a danger to the community upon his release from prison. There must be some fears in this regard. However, given the many unknowns in the circumstances of this crime, I cannot treat the possibility of his re-offending as a major feature in the sentencing process.

33 The victim's sister, Margaret Smith, read a very moving victim impact statement to the court during the sentencing process. The sequence of events surrounding the murder of her sister Susan has changed her life fundamentally and permanently. This is a tragic side effect of the prisoner's actions. However it, is not a matter which I am entitled to take into account in determining the appropriate sentence in this case, and I do not do so.

34 It is obvious that the prisoner must face a very long term of imprisonment. The joint requirements of protection of the community, retribution and deterrence demand nothing less in the circumstances of this case. In addition, in sentencing him for the murder of Susan Smith, I take into account the two offences relating to the home invasion on the 6 August 2003 which I have already detailed. Given the seriousness of these offences they must have some impact - although not relatively speaking, a major one upon the final sentence.

35 The offence having been committed in 2002, the recent amendments to the sentencing legislation have no effect. As at today, the prisoner has been in custody for a total of 22 months and eight days. This is obviously to be taken into account as part of his total sentence, and I propose to accommodate to it by backdating the commencement of his sentence to the 9 February 2003. No special circumstances have been shown which would warrant a departure from the normal non-parole period.

36 Richard Cleverly, I sentence you to imprisonment for a period of 24 years commencing on the 9th of February 2003. I set a non-parole period of 18 years from that date. The earliest date on which you will be eligible for release on parole will be the 8th of February 2021.

**********

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

MATHEWS AJ

17 February 2004

70085/03 Regina v Richard CLEVERLY

JUDGMENT